19730509 TZHC Mwanza

I1:::: IrI;;; HIGH COURT CIMINL AFPJLL NO 472 OF 1972 Qrigma1 Qirpiva1GscIo. 32 of 1972..of theDistrict Cotnt I of Tjkercwe Disti,at Kbingo Bcforc - N.L.IL Kanonyele 13sq. .1 District fitgirtatc. H4MIS JUL ....... .. . . . . . . PPLIPNT 1.0 I vcrsus . ,. .. . :; : t. •' • TH? RPUBLIC R'2SPONDENT. - JUDGMENT. TOPTHAN, J. The ael1ant was chargcd on two counts of burgisry and staling and another two counts of escaping from lawful custody and 1 rdslstlng lawful orrcst, rcspoctvcl contrary to sec'aons 294 (i), 265, 116 and 243 Cb) o1'4 th Pcnal Coda. 1ews aoquitted of ihc first two offcnccs but found guilty of rcceaving stolen prOperti c/s 311 (1) of thç Penal odc for which hc was sentenced to 4 years' imprisonment. I-ic was convicted on coth the' re'mainlng counts ana entcnccd to drc year's imprioxmc -t. c hs xiot arpcalcd against thcsc two convctio1?s bw4Qomplains idiati the scitc-ncs 01 OflO ycarts im,prfsonrent arc c9s1v. 11 th setenccs were dared' to bc scvcd conc4rrcn1y, + It icornôn roundthat 'the 0 06p1ainan's hou pe's broken intc oh the night of 17th Fcbruay, 1972 and. man this jstolen, including radio and clothes, al. o thc valc. pfit cih.7 00/= 'and thE't- a fw days 1?tcr thc 8ppcllant was undrin posfqs1on of a co&t nd a shirt wnoi t Inc companat, id'cnt ed a beang sto"len"dirinj thd 'ri1. of thc burglary. It seems that the complainant saw.th,o . coat on.ct ,of ahu's and waited around tb soc who wud clazmi -t. ventualy, tnc p c11t who wOuld ape to hac been a passenger hc bust came along, took the cOat ei'id put it on, whcrcupon at the instance of the comp1innt, tnbus witn its passengers hcadd for the Plic Sttioh for a report to bc mad:, Thç appcllant transpired, es al0 wraring a sliirtwhicb -thc comp1ainnt alO identified as his. The appcllant's cplanation to tl3a com1b1ain4ñnd to the folic s that he , had bec'i iv4çsa cothcs by on: \mos who ilaà b'en his host a 1wenza, fTh.s hq repoatcd in his sworn evidence, when ho had occasion to add that he had scan varios ite,mst ..t1c, 4ousc of _imqs.which fitted the description giverf y'tIfe có'mlinnt of his stolen things and that,, among these hd been a radio which Lmos nad sold to an auctioneer for shs,. 55/=. It is not clear from the proceedings, but it ap'ears from taijudgment that the appellant had consis- tently given ths,chation and that at one stae the appellant requested that he should be given an escort to take him to Mwanza. tOr show ,bc'Policc the man cllQd AMOSi. It scorns, toot, that, cp;ite an odcr made by the court pursuant to this requcst, thc ppellant Was not given a chancc to viidica -tc himscl. Not surprisingly, the learned m:gist'r'ctc" has bran highly critical of the attitude of the Police in not complying with his order. ' In those circumstances ho found, rightly in my view, that the appellant had given 'a satisfactory explanation for being in possession of the clothes. Howecr, he went on to find that, when receiving the clothes, as the appellant claimed, he knew they were stolen property, +he maistrate gave various reasons for so finding, but as tic learned senior state fttorncy submitted, they arc far from convincing. Firstly, the maCistntc observed that, the appellant having seen Amos offering to sell the radio for . I ShSe 55/:: only, he ougiit to suspcctcd that the c1ot1s wcr stoT:rr. I do not Sc: wiat conri"ction tii"r: s octocn the radio ' a nd the cloth:s 'of which 'the eppeldit might hvc take-n note, while shs. 5/' was not cc&s'rily an insignificant sum for radio especially as its condition may not hEve been krown. Besides, in 4is, q-vdece tIç.a]Ja'jt, ndq ,it. qar tht h.; 1 was not sure if the appellant was selling it for sils. 55/= or whethàr this sum was to bc the atctionecr's fee-s for finding a buyer. The trial court also held it a ainst the appellant that he had left the coat on a bus se-st before retaking possession and putting it on.. I confass my inability to follow this argument. If this we-s considered an ungual bhi3ôur, nc does not appear to have b:en cross—examined on it.. H.owev:r, in hi . . ptitionT: of appeal he states that e-S he- wdnt out of the- bus he found it. prudant to leave the coat on the scat so as tp indicte that tc. .pacc-n. :h: seat hda passcnger •hc-re is nothing,. .unr'csonab1e in this. Infindin.g'thc appel,ntwas.,guilt,. !ivr thc magistrite relied ais.o on ,th tact 'ta't.' lc an ,om.his cross—examinatipn of,the. compl.aincnt pd fflLh±s wu cidencc in defeucc, the- p.Gllan was: representing '-tha.t the clothes were I'mosl nu not the complainant's. thus is a misdirection c ppellant hd every right of cross- eami1ing prosecution witn ss.Qq, 6,nd. for tht matter, of stisfying himself, artd assisting the court in asce\"teiining, if the clothes were thôs a of the cpmii'an.t' : The- a'der sc 'cT:iticism' of the- - court in this respect was clearly uncalled for.. Indeed,, it might be,argu.d . that 1cQrq tken. byt,ha applant 'ns. .boieistcnt with his belief thgt th' lotbcs uec thosç of fms... I am Olar in my p1 j4d,that o on the evdence,cn record guilty raccav ship cou],d not proporl havo bcçti imputed ccordingly,. tue conviction ..icr.rec.aiving,nLs.guaiae.c. snwsll uus t,1e,-sqntc-,nce- thcroni. .. : ..'.' .'..". i.'i:.......: Th; eviccnc jutificd the conviction for, escaping from lawf u.1 custody q.n rc'aisting lf The sntc'rrcc of. one year's .ipr.ionment..aold ,, hoavcr,. secum se-vcie .-. in passing .00u.t noted that, . it ,s his leacapchioh wsrncd.tI.a. Polic ainst the rik of cscorting iim to ,Nuanuza to look for 1mos.,. The 'was no cviöen.cc to this cue-ct a suo:h aLcon'sIdcrati.on should .'becn eclud. .,Fie has bcen. in piison for nbout 9.. montha e-nd for,, the .,sntc'ne. ,.':o'. one : ye-r on ce-oh c *;t:bc-re .15 substituted such a.. ±arr :f, i.mp.isonmnt . e- q :will result in. hn' immediate re-lee-.se.+ ',.. .. .. . ..: .. Sve as indicated 1 the e-ppeal is aJlowed. - ...." .. ' P. M.. JOlLTH.J', ......' JUDGE. 1 9/5/73 T 4 a ......'• ,.- . ,' , , . . ,