19830316 TZCA Dar es Salaam

IY THE HIGH COGTIT OF T'ANZANIA AT DAR ES SAIA.AM

REVISIONAL JURISDICTION (DSM R3GISTRY) CRHITNAL APPEAL NO. 164 OF 197 4 ORIGINAL CRIMINA CM;E NO. K. 2409 OF 1972 OF THE DIS'::'RICT COURT OF DAR ES SAL/\.AM DISTRICT AT KIVUKOJJI/DSM BEFORJ1 H. J. MKATTE ESQ., :RESIDENT tr1.AGISTRATE THE REPUBLIC •••••••••••••••••PROSECUTOR vrs. DOKWEIA DOHASA VIVUNGU ••••••• ACCUSED .TIJDGMi:::NT MANNING - J. The appello.nt Wfls cho.rgec1 wj th one count of burglnry, two counts of steaLng, two counts of being in_possGssion of property suspected to hnve bsen stolen and two counts of bein;s j_n possession of hmg. He wns convicted and sentenced to 4 years .imprisonment for bu:r.glc:iry, 3 yeo.rs for each count of stenling, 1 year for coch of the two counts of being in possession of property suspected to have been stolen Etn<l 6 months for ench of the two counts, for being in possession of bong. He is appcrnling ngoinst conviction and sentence. The facts of the case nre as follow: The complainant, one Inspector funiel Mo.sika (PW.l) hnd_ on 7/11/72 gone to bed Before 9.00 p.m. at about 9.45 p.m. he heard a noise outside, because thieves hod jumped the fence and e·ntGred the court yard. He woke up and went outside, where he snw one of the thieves. h::tnging over the fence. Hence, he, and his wife (PW.2) his brother-in-laws' wifG (PW.3), living in an adjacent flat, within the same block, as well os the other people chased the thieves • I but they

did not catch [my 2nd they could not even identify them. After the fruitless chase, the' went bc,ck ho1:1e, where they found tho.t there wern bulbs, the children's clothes, a brcssiere belonging to his v;ife (PW.2) teo. cups, pans, pL::ites bed cover 0.nd a bucket were stolen by the thieves. He did not report the theft to the police because there w:1s no hope of finding the lost things aguin. On 24/11/72 o.t around 2.30 p.n.', he (PW.1) had. returned from ,~ork and he sr N tho appellant going towards hi::-i kitchen. He ( the appelL:::.nt) vms a hnwker, who us2d to visit his house ::md sell banarns. • .•... /2. r i ~--i Then he heard his wife shoutinc; that the appellant was a thief; . When he went to see what was happenins, he saw the appellant runnine; away holdinc a basket in his hand. They chased hj.m but they failed to catch him. While rµnninc. away fpom the complainant I s house, the appellnnt threw down the basket, which they picked up. His wife d ho. called the ap1)ellant a thief because he had found a khanca belonctng to his (PW.l) brother-in-law's wife (PW.3), a brassiere, belon 0 tnc to his wLCe (PW. 2) bbanc and a comba marked vr and a star belongin:.i to his brother-in law's wife (PW.J)e He knew that comb because he used to borrow it. Moreover, on 25/12/72, at about 5~15 p.m. a m.eighbour of the complainant, popularily called l Iru11:,:i, called him and told him

that 1 there was a p0rson hidin[0 . near his house. When they went to look ' '\ v' at him, they found the a:~)pellant lyin:_; flat in the pit. The complainant touched him with his foot and then orderod him to stand up. The appellant said he was drunk, but he ··;cod up and he had a basket, which contained bhan_:,,jl a piece of kitance., one buibui, one .~:i tenL,e dress, whic~1 h0 tendore<.l as e.xhibi ts D., B and F respectively; in the trial court. The bhang found in the basket .._...,,,J'. on 24/11/72., and that found on 25/11/72.9 in the baslrnt, was sent to tt:: Government Chemist .9 and then the report was sent back to the police and the complainant tendered that report as exhibit Gl. The evidence of PW.l was supported by Pw.2., who identified her brassiere int he basket belonc n 1:; to the a11pellantll which he throw down on 24/11/72, while rum.nin;~ away from tho house of the complainant. 0he was able to identify such a brassiere because she had made it herself by hand since she could not identified.the piece of khansa and her comb marked LT. At the trial the appellant chose to remain silent o In his memorandum of ap;ieal he complained that no witness was called who -s:aw him stealing, He deni0d ever havinc; in his possession bhang, and the magistrate erred by not askin13., who had in fact sent the bhane to the Government Chemist for the tests. There is evidence to

support the charge of burglary, because botl: PW .1., PH "'2 and PW. 3 could identify the comb., a brassiere :::..nd piece of kha112;a found in the basket of the appellant on 24/11/72; / -3- ,,-\ "chn.t is, the theft occurod s,.wenteen (17) days before the thief was caucht, on 7/11/72. 'rherefore the doctrine of recent possession can be invoked., as in the case of William Maziku v.R. (1970) HCD, No. 174, where Kimicha J • ., as he then was stated •e•••••·•••••••• 11 Thou0 h the appellant was arrested 25 months after the commission of the offence the lower court found that he was actually in possession of the radio three (3) weeks aftur the burglary and applyinc the doctrine of recent possession in relation to this period and the articles stol0n he found that the ai)pellant was in fact a burclar. 11 • • • • • • • • • • • • • • • • As far as the two counts of being in possessi6ri Of property suspected to have been stolen are concorned 1 he was found with the stolen properti0s noar or at the complainant's house and he was a hawker by trade, that is in a course of a journey; he had such articles in his possession, and the thin;::;s were of such nature or the circumstances were such that it mic;ht reasonably he suspected of havin0 be0n s tolen or unlawfully obta:i_ned and he refused to give an account to tho court of how he c amo to possess such property. He was thorefore properly

convicted for being in possession of property suspected to have been stolen contrary _ .,..,. to s ect:;_on 312 of the Penal Code - see Joseph s/ o Michael V. R. (1970), HCD, No.166. As far as havins bhanG in his possession is concerned., he was caught with it hidden in his pockets and the Government Chemist examined it and cerfified that it was bha.nc;. Such bhang was sent by the police officers so the tests could be made to,_::; eterrnine whether or not it was bhang. As far as concerning tho sentences beinc excessive, the sentence for burglary, that is 4 yoars imprisonment, is not excessive because the appellant had previous convictions, as far as the other counts were to run concurrently with the first sentence, there is no need of dwelling upon them because the appellant would actually serve a term of four years impris mment. The appea1 is therefore dismissed in its entirety. J. C. MANNING DAR ES SAL,VJ1 JUDGEo 16/3/1983. This is