19741206 TZHC Arusha

IN THE HIGH COURT OF TANZANIA AT ARUSHA APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO0 199 OF 1974 ORIGINAL CRIMINAL CASE NO0 48 OF 1974 OF THE DISTRICT cOURT OF MBULU DISTRICT AT MBULU Before P.W. Mosha, Esq., - ------ -----------------District Magistrate AWE AKWESO ------------------------ ----APPELLANT (Original Accused) versus --------- ------------- RESPONDENT THE REPUBLIC -- (original Prosecutor) J U D GE M..E N. T Jonathan, J. S The appe lant and another were convicted on a .oint charge of shop J. • breaking and stealing c/s. 296 of the Penal Code0 They were each 5/ sentenced to 5 years' imprisonment and ordered to pay compensation in :• • respect of the things which had not been recovered0 • It was undisputed that while the complainant (P.W 1) was away between 15th and 17th January, 1973 his shop was broken into and goods to the value of shs. 5788/85 stolen from it. There is no dispute either that ... about one month later following a search made of the house of the appela a paper box containing numerous itents•worth shs, 800/- was found undernea, the bed. The box had thenameof thcomplainant written on it apparently • for identification, while he identified the contents to be among the merchandize stolen from his shop. The appellant upon being asked said the J.uiggage had been brought there by his cousin, the co-accused. In due course the co-accused was arrested and a search of his house carried out as well. In the event another paper box, also bearing the name of the complainant, was found. The complainant in this case also identified the contents as among the things that had been ktolen from his shop. The appellant in his unsworn statement was consistent that he had received the things from the co-accused and that he did not know at the time of receiving or retaining them that they were stolen property. The /to co-accused, for his part, while agreeing Zi alve entrusted to the appellant the box that was found inside the latter's house, contended that he had himself bought the things found in the two boxes. This was howeiier rejected and the trial court convicted him as charged. Now, in returning the convictions the learned trial maistrate seems to have made reference to a confession by the co-accused to the effect that he and the appellant, among others, had jointly broken into the complainant's shop. The statement had been made to a police sergeant major and so it was inadmissible and should not have been acted on. There was however, otherwise sufficient evidence to support the conviction of the co-accused. As regards the appellant, apart from the inadmissible confesofl of the co-accused, there was no evidence from which to deduce thai: he had hd a hand in the shop breaking. The evidence was more consistent with reeivingo As to his guilt when receiving, it is pertinent to consider first'y, that he told a lie when he said he had received the things on January 3rd 1973, that is, before the shopbreaking. Secondly, the appellant upon seeing the name of the complainant on the paper box should have put himself on enquiry as to the bonafides of the co-accused's possession. Esides, no reason was shown for the co-accused leaving the box at the appellant's house and taking the other box with him. I am satisfied that on a full consideration the learned district magistrate would have found th2 appellant at the time of reciving the goods knew them to have bee stolen froma shop. Accordingly, for the conviction of shop breai:ing there is substituted a conviction of receiving stolen property c/s. 311(1) of ---/2