19710721 TZCA Dar es Salaam

JT DM ES SALAAM CRiMINAL, APPEAL NO. 19 00 1971 Original Criminal Case No. 166 of 1970 Of the District Court of Morogoro District at Morogoro • Before P. K. 0. .Shayo, sq. j Resident Magistrate BATH0IJ0IEO s/oDANIi'L ...........,.,......, APILLANT versus RESPON.DINT CHARGE: Ztore breaking and committing a felony therein c/ss 29 6 (1) and 265 oftbe Penal Code, JUDNT SAIDI, C.J. - The appellant was charged with and convicted of store breaking and stealing and sentenced to 2 years imprisorunent with the statutory penalty of 24 strokes corporal punishment. He now appeals aaInst both the conviction and sentence as well as orders for payment of compensation, police supervision and repartriation to his home district. It is not disputed that the a tore of the court of the £eaidont Magistrate at Morogors was broken into in the night of 23rd February 1970 and 70 items of exhibits were stolen. On 15th gay, 1970 the appellant was arrested in connection with a charge of breaking into a school and stealing for which he was also convicted and sentenced. Upon a search carried out in his house with respect to the earlier charge 5 of the 70 xhibIta stolen from the court about 21 months before tera recover3d tram him. These 5 items have been olearly identified by three witnesses as part of the 70 exhibits stolen from the court at night. The appellant denied possession of these 5 Items and claimed that the polioe officevs who searched his house falsely implicated him. The learned Resident Magistrate who tried the appellant rejected the appellant's allegations against the police as false. I agree with his reasoning. It seems as if almost all of the household articles of the appellant had been seised during the search. Mtor a proper checking most of the unidentified, articles were returned to the appellant's wife and 5 items, namely one pullover, 2 table clothes, one shirt, 2 bed sheets, one blue window curtain and a blue door curtain, were retained in connection with the case. These 5 items with remaining 65 items were exhibits in Criminal Case io. 315 of 1 96 9, Republic v. Bernard ICizinga, which had just been completed. The real issue for determination is whether or not the offence commItted by the appellant was that of istore breaking and stealirg or receiving stolen property. It would appear that as so few items of the lot stolen were found in possession of the appellant at the relevant time and 2- months had passed and these articles could easily pass from hand to hand the facts would establish a charge of receiving stolen property knowingly. I accordingly substitute a conviction for receiving stolen property for the original conviction. The sentence of two years imprisonment will remain undisturbed but the 24 strokes corporal punishment are set aside as the appellant is serving a minimum sentence passed in another conviction. The order for compensation is also set aside. The appellant's appeal is allowed to this extent, otherwise it is dismissed. Delivered in Court at Dat' es Saisam this 21st day of July, 1971. (Sgd) (. I CHIEF JUSTICE