19740212 TZHC Dodoma

n rn- jL IN THE HIGH COURT OF TANZANIA AT DODOM[. cOU AIPELLATE JURISDICTION - UL 1974 IICH COURT CRIYINAL JrrLL NO 268/73 ORIGINAL CR-IMINAL CASE NO. 173 OF 1973 OF THE DISTRICT COURT OF MBOZI DISTRICT AT OZI BEFOREJ, W. OGOLf....,..........DISTRICTMt.GISTRATE ABDUYUSUFU MTJLUSANJE...O ......... .....,..,.LIPELLANT VERSUS All THE REPUBLIC . . . . . . . . . . , . . . . . . . . . . . . . . . . . . . .RESPC1TENT Charge: Unlawful possession of Govt. trophy c/ss 49 and 53 of Cap. 302, resisting arrest c/s 243 (b) of the P.C. and stealing c/s 265 of the Penal Code. JUDGE MB NT I 1VZAVAS J. In this case the appellant (4th accused in the district court) was charged with and convicted of unlawful possession of Government tropI.y c/ss 49 and 53 of Cap. 302, resisting arrest c/s 243 (b) of the Penal Code and stealing c/s 265 of the Penal Code. He was sentenced to 1 year imprisonment for being in possession of Government trophy, fined Shs. 3001= or 3 months imprisonment for rsisting lawful arrest and was sentenced to 3 years imprisonment for the offence of stealing 70 elephant tusks, property of Government. Dissatisfied with the convictions and sentences he has appealed to this court. The fol]wing facts were not at all in dispute:- On the.night of .29/7/73 the police received information that four people in a land rover registration No. TDN 816 were heading to Nchakani village in Mbozi district for the purpose of smuggling elephant tusks. The landrovor was seen heading to Nchakani village at a high speed with four people inside it including the driver. Police officers waited for it on the road. Soon after the landrovor was soon returning from Mchakani village heading towards ITboya. . One of the pOlice officers shorn a torch at the vehicle .si.gaaling it to stop. /2 S .3' ¶ It is quite another to be in possession of the tusks. The appellant' S defence was that he was a mere passenger in the vehicle e He is, as I have already mentioned, supported in this by no lessor a person than the let accused, the owner of the vehicle, As to the 1st accused!s defence that DW5 had entrusted the tusks to the appellant, DW5 denied entrusting the tusks to the appellant and the learned district magistrate found him to be a truthful witness. In his judgemont the trial magistrate says that the appellant could not have been a.mere passenger in the vehicle because he failed to produce a ticket issued to him by the owner of the vehicle s - This remark was, with due respect to the magistrate a misdirection. From the evidence it is amply clear and there was not the slightest dispute that the vehicle was privately owned by the first accused and was not a passenger vehicle. This being the position the question of the appellant obtaining a ticket from the 1st accused does not arise. On the evidence appellant's defence that he was a more passenger in the vehicle was not effectively rebutted by the prosecution. As to the question whether the appellant know that the vehicle was carrying tusks; or whether he later came to know that the vehicle was loaded with elephant tusks; it is most probable that he came to know that the vehicle was carrying tusks. But this did not make him a possessor of the tusks as he was a more passonger in the vehicle. The argument that because the appellant resisted arrest he must have done so because he know he was in unlawful possession of the tusks is attractive but, in my view, not convicing. It could equally be argued that the appellant found that he was a victim of unlawful arrest and hence his resistence. On the evidence the conviction of being in possession of Government 'trophy cannot be supported. The same is with the charge of theft. Indeed I would like to mention that the áharge of theft is bad for duplicity as it is based on the same facts as those in connection with being in possession , of Govern- ment trophy. The convictions of being in possession of Govern- meirt trophy c/s 49 (1) and 53 of Cap. 302 and that of theft c/s 265 of the 2enal Coda are quashed and the sentences are accordingly set aside. As to the charge of resisting lawful arrest I agree with the Republic's argument tat there was ample evidence in support of the conviction. I appears from the record that the appellant failed to raise the fine of Shs. 300/= and was therefore sent to prison for months in default. As he was sentenced on 21/8/73 he has by now served more than the sentence imposed in default. I accordingly order that he should forthwith be l'eloased -rom custody unless he is otherwise lawfully held. N. . MNZL1W JIJDGE Appellant absent and unrepre ant d. Mr. Kinabo for the Aepublic.