19780107 TZHC Mwanza

' IN THE HIGH COURT OF AT MWANZA. APPELLATE JURISDTCTION ,.HIG:H·-.:COURT CRIMINAL APPEAL N0°0 245' OJ? 1977 (Origir{~1 C.r:imi-nal Case No.685 ~f 1,16 of_ the Distri~t C~urt of Shiny'angaDistrict ;at Shinyanga - before Mo Go Co KAJERI, RoM.) BUNDALA MKOKOTENI 00~~~000000~000000000000000000000 APPELLANT . ( original Accu-sed versus TH~ REPUBLIC 00000000000000000000000000000000000000 RESPONDENT (Original Prosecutor) 1st c~nt: Burglary c/s 294 (1) of the Penal Code Cap,.16 Vol.I of the laws. 2nd count: Stealing~/~ 265 of the Penal Code Cap.16 Vol.I of the lawso J U D G ME N T MAPIGANO, J: The appel.lant ,Mko_koteni was convicted in the district court of burglary and stealing, contrary to section 294 (1) and 265, respectively 1 of the Penal Code and sentenced to concurrent terms of imprisonment for three years and four years, respectively. He has 3ppealed but I see nothing of substance in his petition. There was no dispute that the dwelling house of the complainant Paulo Ngasa was broken into and several of his belongings stolen. This took place at night and the culprit disappeared without being seen. There was not a serious dispute that three weeks later the appellant had one of the stolen items, a Kaunda shirt, which he offered tG sell to one James Shija (PoWo3)o In the course of the transaction the complainant appeared and put it to the appellant that the shirt was his- At that stage the appellant tried to hide the shirt but in vaino He was arrested and brought to court on the charges. He elected to offer no evidence at his trial. On this evidence, the only question which arose was whether the appellant was the actual person who committed the offences charged; or whether he was a guilty or innocent receiver of the stolen shirto The learned resident magistrate held that he was the actual burglaro The learned state attorney has argued on this appeal -that the evidence left a reasonable doubt that he was the burglar~ He pointed out that three weeks had elapsed since the burglary when the appellant was found in possession of the stolen shirt and that nothing else was traced on him. He expressed the view that there was a possibility that the appellant was a mere guilty receivero I fully agree with that opiriiori and I wil'l va'fy the decision of' the trial court 9-c:cox;-dingl'yo ' '1- • • • The conviCtions are set aside an~~t substituted therefore a conviction for receiving stol~n property contrary to section 311 (1) cif the Penal Code 7 for which he is now sentenced to three years: imprisonment;;the minimum under the lawo The order of the trial court in respect of·~~mpensation is set asideo Pronounced in ·court.; Appellant absenta Mr. Sengwaji for the Republic ,~c--~r/~~ 7th January 1 1978 D~ P. M ~ 'I'·ABORA. JUDGE