Held criminal procedure code amendment ordinance 1960

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Held: Criminal Procedure Code (Amendment) Ordinance, 1960, specifical- ly empowers the court to convict of an offence of “retaining” where “receiving” is charged and vice versa. 369. Fanuel s/o Kiula v. R., Crim. App. 536-D-67, 20/9/67, Georges C. J. Accused was convicted of stealing by servant. [P. C. ss. 271, 265.] His defence was that the money had been taken from him. The trial magistrate stated in his judgment, “If the court is to accept the evidence of the accused that he lost the money, and there was no negligence on the part of the accused towards the loss of the money, accused may not be held responsible for the loss.” Held: (1) It is not necessary to accept the evidence of the accused in order to find him not guilty. All that an accused need do is raise a reasonable doubt as to his guilt. (2) No matter how negligent accused may have been, if in fact he did lose it or if it appeared very probable that he did, he could not be held criminally responsible for the loss. Conviction quashed. 370. Jean s/o Kisila v. R., Crim. App. 548-M-67, 13/9/67, Cross J. Accused was arrested while offering motor vehicle spare parts for sale at a rail- way station. He was convicted under P. C. s. 312. Held: (1) Sec. 312 provides, inter alia, that a person who has been de- tained as a result of the exercise of powers conferred by Crim. Proc. Code s. 24 (relating to (1967) H.C.D. - 106 – Authorized searches), and who has in his possession anything which might rea- sonably be suspected of having been unlawfully obtained and who fails to satisfy
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the court as to how he came by the articles is guilty of an offence. (2) There was no evidence that the accused was detained as a result of the exercise of powers conferred by Crim. Proc. Code. s. 24, which is one of the elements of the offence defined by P.C. s. 312. Conviction quashed. 371. R. v. Sesariu s/o Mwavela , Crim. Rev. 109-D-67, Saidi J. Accused was detained, under the terms of Crim. Proc. Code s. 24, when he was found in possession of a bicycle which it was reasonably suspected that he had obtained unlawfully. It was found in accused ’s house during a proper search for certain stolen goods, unrelated to this case, which it was suspected that accused had taken. He was convicted under P.C. s. 312. Held: Section 312 cannot apply to a case where the property suspected of being stolen or unlawfully obtained has not been conveyed by the accused, or where the accused was not in the process of a journey at the time he was found in possession of such property. In R. v. Msengi s/o Abdullah 1 T.L.R. (R) 107 (a full Bench decision), the Court stated that this section “has no application in the case of a person having in his possession in a building property suspected of having in his possession in a building property suspected of having been stolen or unlawfully obtained. I does so apply if the possession was in a building in the course of a journey ………… It is clear, however, that the section will not apply, for example, to property found in a building solely as the result of the execution of a search warrant or other similar process.” 372. Mkwe s/o Lakimoja v. R.
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  • Fall '17
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