19760213 TZHC Arusha

i; I). THE HIGH COURT OF TANZANIA APPELLATE JURISDIaTION HIGH COURT CRIMINAL APPEAL NO. 138 OF 1974 a c/F CR. APPEAL NO. 139/74 ORIGINAL CRIIJINAL CASE IO. 739. OF .1972 OP TH DITIOT COURT 02 MOSHI DISTRICT AT OSHI BEOR'E M."M'LUGURU, Esq., Resident Magistrate ROBINSON FELIX s/o wcmmi.. . . .. ... • APPELINT • '. (Origiiial 4th Accused) versus (11TJ"C lDrTTr)TTCI . J..LLCj £LjjJ.UDJJL., . . . . •. .' . s.. . • • • . . . . . . RESPONDENT (Original' Prosecutar) JUD G-EME NT•. . . NYALt.LI AG. J . : The appellants, namely Robinson Felix.s/o Makundi and Ada.rnu s/o Malongo were charged with two otheis in the district Court of Hoshi District at Moshi with the offence of Stealing by public servant c/ss 265 and 270 of the Penal Code. The said Robison Felix s/o Malcundi, hereinafter called as the first Appellant, was convicted in the alternative with Receiving stolen property c/s 311(1) of the Penal Code. He was the fourth accused at the trial in i;he. district Court. The said Adamu s/o Melengo, hereinafter 'called as the Second Appellant, was convicted of the offence che.rged. He was the first accused at the trial in the district Court.. Each was sentenced to 3 yoors irnprisonment"undbr the Minimum Sentences Act, 1972. . . .' Each is now appoalii to this Court against conviction and sentence.. This appeal is thus a consolidated appeal Of criminal appeal Nos. 138 and"139 of 1974. . The facts of the case according' to the pros'ccution are • that the second. Appellant and the othcr two persons wh'c are not appealing were at the matc-rial time employees of I1imanjaro Christian Medical Centre - which is a Consultant hospital under governent control, and the First Appellant was once an employee of the hospital but ho was self-employed at the material time and had a workshop in Maj engo in Moshi town. On 29/6/72 in the, afternoon P.W.2 and P.W.4, who are policemen, wore in Iviajengo area when they noticed a .g.ove'rnment motor 'vehicle drive past and stopped on. the 'road near the First Apei1ant's workshop. Inside the motor, vehicle was' the Second ApeI1ant 'and the two persons who are not appealing,. The ecdiad c321ant, ,aeoisted by the two,others unloaded some blocks oitimbor and a shobt of fomica at the roadeidp and drOve Off. Th First Appellant co1lctod the bloclth of' timher'.a'nd sheet of formica and hid thOth in the noarby maize plantation. • ' er . . . . . . . . ..., . . . . LaLer the First Appollan boot iho I bloc1 of timber to his Workshop arid the .icet of room. r.%1.2 and P J 4 gore supiciouo and icy secretly wont o coo tao blocks of irbcr 1.11 Fj.rsL ApcJlant'c workshop -- whore hey noin,cocl bht two oL m blocks of bnaier •bore clor identfication thrk of Kilimanjaro Ch±'istian Medical Centre. I'.1.2 and ?..4 men decided to hide themselves at SOIL plcco to wabch devclopext. LEter in Lae ovonin, the Firt Jppcllaiit and Second Lppelj,ant and ono®f• th erso!iVio is not appealing cane to tho '.worJ.shop of the -irst Jppellan. - P.7.2 and P.T1.4 then went to the workshop and onquirod about the origin of the blocks of timber. The explanation given by the First and Second Lppollants and the. third person was that the blocks of tin ber had boüii hroudht there by one Juiia from Marandu. It is also the prosecution case that during that day of 29/6/72,'.t1ie Ol econd,a.ppellant had boon officially using a govornaent motor vehicle heloning'to Iilimanjaro Christian Medicl CenLre and it ee that roior vehicle which unloaded the timber andfornica at the workshop of the'. First Jppellant. The 'defence of the First Jppellant at hid,irial is that he had been expectiXi one of the pèrsors who is not appealing - that, is the person who was changed, as the second accused at the trial 2 to bring.sono timbor for making 'some furniture EU1d that the First Jpnolla.nt roturned home i'n the evning Qf 29/6/72 he found the timber in his workshop and was iiIorne0. by his children that the timber had been unloaded there by a motor vehicle belonging to tho Kilirnanjaro Christian Medical Centre. Tue defencG of the Second Lppel,lant i,s that he was arrested by the' policemen by mistake' as ho was standing outside hiS own houso near the workshop of the First Appollant and that. ha at no time did go to Majengo in any motor vehicle that day, but only used the motor vehicle of K.C.M.C. to transport some bricks to a site 'where ho was, working as a mason., •. •. • .. The first point for consideration in this case is 'whether the blocks of timber and sheet of formica recovered by the police ai LIajeno is the property of K.C.M.C. I think tho:ce is no doubt about the property being that of K,001, 1 11.C. on the evidence ( Jcwce. by GilL sup-pli.1s ofiicor - LhaG is p1T3 and the evidence of the tecirnical assistant The next point for cvnsidcr'tion is whether the pr,oporty was stolen from KOC.M.C. Sinae on the evidence of .W.3 (tee supplies oficor, th blocs of Gi ibr and. snoet of for ace were supposcd to be kept in. iO K.0.i .0. workshop and,. not ab. the homea, of 'i'iv C people, 'and since there is evid,.ence by, I.J.2 and 1 ) .e.4 that' when the ,prçperty was unloaded from the notoi vehicle at tie workshop of the let Lppollant in iktjsngo thors was an attempt to hide it in a maize ,plantaGion 4 mink m.Licre 15 nO other reasonable conclusion co,b e the proprty wc stolen. - - The next point I have to consider is whether the First Appellant and the Second App011ant were properly convicted0 'The First Appellant adaits that the property was brought to his workshop. 2 .V .2 and P .W .4 s evidenc e shows that the First Appellant and his compahions oxplained that the property had been 1rought thoro by one -Juma of Marangu. P.71,2 and P,7.4s evdcco is supported by tho.evidenOe given by the Second Appellant So it would appear that P.W,2 and P.W.4 are tolling the truth. During the trial, the First Appellant gave a different story about the origin of the property. He said that he was informed by his childrAi tiat the property had been brought by a K.C.M.C. motor vehicle and that he expected one of the persons who is not appealing' to bring him some timber for furniture making. This change of story. by the First Appellant shows that he knew that the property had been stolcnwhcn it was brought to his workshop. This is confirmed by the evidence of P.W.2 and P.V1.4 that the First Appellant at first hid. the articles in a maize plantation before taking it to his workshop. He was therefore rightly convicted of receiving stolen property c/s 311(1) of the Penal Code. As to the Second Appellant, his denial that ho did not take and unload the property at tio workshop in Maj engo, is contradicted by the evidonco of the driver of the motor vehicle - that is one of the persons who is not appealing. The evidence of thol driver corroborates tile evidence of the two policench about th Second Appellant boing.ono of the persons who travelled i:d the' motor vohicao and unloaded th property at the workshop. He ias therefore also properly convicted. As to thc, sentoncd of 3 years imprisonment, it is the statutory minimun under the Mininun Sentences Act. The appeal is therefore LLlissod in its entirety.. $ (F. AG. JUDGE. Judgement delivered in open court this'13th day of February. 1976. in the prés once. of Mr. MwipOpo, Sto Attorney. (F. L. NkIALALI) FLN/MTPM. L.G. JUDGE. V