19780605 TZHC Mwanza 1

IN THE HIGT COURT OF TANZANIA AT ITNANZA APPELLATE JU]ISDICTION • HIGH COURT CRILIAL APPiAL NO. 360 OP 1977 ORIGINAL OR1UIIAL CASE I0.91 OF 1977 OF TiIE DISTRICT COURT OF GEITA DISTRICT AT GEITA ; Befo±'e F. N. Bubrwa, Esq., District Magistrate BULALES/O MA.Buu ..................................... APPELLANT versus THE REPUBLIC •... . . .. . . . . . ................ . . . , . . . . . . . RESPONDENT CHARGE:' Robbry with violence c/s 285 and 286 of the Penal Code C,ap 16. JUDGM2NT KATITI J. In Geita District Court, the appellant - Bulale s/c Mabubu, was convicted of the offence of robbery with violence, and sentencd to seven years imprisonment. Tho appol1ant is now appealing against conviction, contending that, he was not evidentially bonnectod with the bf±'once. • The night of 23/12/76, saw the complainant suffer a night-marish oxperienco. His house, was at. , the dead of night, violently broken into, after which he a Violently assaulted and serious'ly'woundod. . He narrowly made 'his Way out of the house, not heving identified any of his attackers because of the cover 'of darkness'.. Property including six 'rousers foir shirts, a rain coot, vitengo and cash Shs.400/=, we're 'stolen. On the 15/1/1977 9 PW2 saw, the appellant wearing a crimpline pair, of. trousC, tb.at, he identified to be th property of the conplinant, who was immediately informed. The complainant, with the. help of the militia-man, arrested the appellant, and escorted. him to the Police Station, At the Police Station, they were dixected,to send the appellant to' the TANU offi'ce, where the appellant could sleep.. Tho ovid'e'ñce is overwhelrniig that the appellant escaped While being escorted to tho"TAN[J Office. He was however, rearrested next day, without the pair of trousers,, that was.subs.equently recovered from the bush. • The, trial Magistrate rightly found it as a fac.., t'hat.the * appeliant,.was in possession of the .pir of trouser.. And. alt1ough the appellant did tell trial cOurt, that the .päir:of trouser was.being planGed on him, to put him in touble,, he was shylo.ss in telling e, thät.hc- was in fact fouiid in possession of the same. Nowhere therefore, did the trial magistrate make ' mistake. The complainant pr,operly identified, the said pair of trouser to be his property desCribihg and poInting out greasy spots 'on • the same. In such an event, the conclusion that it was hIs. property was logical. And that, it was one of the "items stolen on the night of the incident, follows on heels. 41. The learned Magistrate, having come this., far, invoked the doctrine of recent possession, and convicted the appellant as charged. It , is ,. here that 'I must submit, that, that although, the, doctrine of recent possession, was rightly avoilable for application, in the circumstances of this case, the trial Magistrate, obviously applied it formula like, without first directing himself on the nature and limitation of the said' doctrine. It has been held in APDULLAH IBRAHIM V. R. (1960) EA 43 that, where the conviction is to arise, from the application of the doctrine of recent possession, the trial Magistrate, must sufficiently direct himself on the scope and limitation of the presumption to be drawn. This muot be, because, the law of _;. recent possession, b.ing.anasect of circumstantial evidence, it must be shown, 1pw the conviction is irresistably reached. Further, in so fait is matrial to this case, the presumption arising out of the'successful application o± the doctrine, is that the acusàd is the thief •r a guilty rec iver, so that, sincc,hè cannot be both in reppect oc the same property, the trial 1agistrato, must sufficiently direct himself, showing hw and why, the presimption, is. that the accus.ed is the thief, rather than a guilty receiver, . or vice versa. I. h6wder doncede, that there may be difficulties, in determining whether, a person found in pbsseSiOfl of proprty recently stolen, is a guilty receiver or tho.,actual .thief. But since he cannot be both, a finding as to which is which, must be made0 The do -termination, as to whether the accused -found in possession of proper. ty rebñt1 stolen, is a thief or a guilty receiver, will depend on the circumstances ofoact.e'Se. First, if the circumstances of the case, are cuch as to render it more likely that the person did. not steal then he must have received. Secondly if the nature 'and. value, Of such property is such that, it cann?t readily ch,nge hands, then ihv±tably the conclusion that the s:me; was stolen by the possessdr.will be reached. Thirdly,.. if the lot or, amount of •propert foimd in his possession, is so much that,not even coincidence that he would hav such lots of propertfis .nprobable, the logical conclusion, would' be, he rnis;.havc stolen the same. Fourtily, the occupation, or, job of .acco,sOc may brelevaiTb, as a shop keeper or dealer in 2rd he;nd goods, -w-o'u-Ld . be more likely to have received the said goods, rather than stealing the same. And lastly, the time lapse: between the thof and posseSSion"iS aJsosignificantly relevant, the longer the time,: the weakór 'the presumption that tne possessor stole. Btt, •as. to what time is near enough to be recent, no acceptable geaeral: rule can be given, for the period within''iich the presun tion, can oporàte will vary,.. according to the 'nare:.''tL.e prcerty atolen, for even two months for. articles 1'1S. :(fl easily charge hands'were not suffibiently'reccnt sto rai3e.'i strong -'resumption,'-agäinst the accused n SHJBAN s/o jui V ii. 1953j 20 EACA 199, and yet,. three vieks, were suffi'ctently recant in the case of. possession, of a stolen Radio, n the eas ci' WILLInI'1 IVIAZIhU •, R (1970.) H.C.D. No.174 - ': .. ... . . In this case, the ppollant was found in possession of a stolen pair of trouser, t.roe wo after 'the robbery. The trial :Magistratc made no finding, as to whether it was. the type, , that 'could'.easily change hands,. but the appellant's alloations that. it was j -u .t plantqd: on him, romoycs, the suspicion: that he, could have r.oceivd the samo although on appeal., he retreated -' to say, he was, found wearing, the sne.' but without adding a' word,, as to wheie he got.the same.'i''om urther, the appellant's oscajPo whIle v'.earing it, nd his subsdqeiit arrest without it, oly' the same to be recovered 1"'romthe'bush0 .1eaning he must have abandonbd it. there, comonsense1y and inevitably ied to - the conclusitha, that, he must have boei' a. e,:ty to 'the robbery. The conviction was inevitable. The appeal is dismissed. Delivered this. 5th day of Jnno, 1978.' ,- J MANZA HIGH COURT I. E III 5th June, 1978'.. .. . . . .. . JUDGB