19790516 TZHC Tanga4

I 14 fr- b ~~ , IN THE HIGH COURT OF TANZANIA AT TANA. APPELLATE JURSPICTION (Tana Registry) CRIMINAL APPEAL NO0 19 OF 1979 (Original C min.Case. No0 0 286 of 1977 of the District Court of Tanga District at Tanga) . ..........BEFORE: 'F L0 SENGA, Esq0, District Nagistrate ABDI NOH'MED ) AL-PELLANTS MUNGO WALLACE) (Oii ri al. Accused) - veEus THE REPUBLIC : : : : : : : : : : : : : : : f: : :RESPONDENT. (Original Prosecutor) CHARGE: -Bu.rgLary and stealing contrary to secions 294(1) and 265 - •' of the Penal Code, respetive'0' .: .. ........ J U D G M E N T .r.- '' :..''• 0.' ..NYALALI, C0J- Tiscriminl,ppeal originates in the District Court of T ga.isr.çtwhére the appellants, namely, Abdi Mohamed and jointly charged withtwo other persons, namely, Mwanabonded/o .Ally and Mwanturn.d/o Mbwana0 The said Abdi Mohamed.. and' Mungo.Wal.ace appeared as the first and second I accused, respecti1y.., in the. District Court, whereas Mwanabonde,.... d/o Ally and Mwantum d/o Mbwana appered as the third and fourth. accused., respectiely0 . They were all charged with the offence of burglary - contrary. to section ..129( 1) of the Penal Code in the first count and theft -. contrary to .sction 265 of the Penal Code in the second coun 'The third ad fourth accused were acquitted but the first and .secon&:acc used, who are the present appellants, were convicted in he alternativ with the offence of receiving stolen propet:y. contr;ary to,section 311(1) of the Penal Code and each was sentenced. to eight years' imprisonment0 Both were aggrieyed by • be convictions and sentences..and hence this appeal to this Court0 They appeared in person at the hearing of their appeal,, and, the Fepublic was represented by Mr0 Sekule, learned Principal State Atto.zne- 4: , -2- I have carefully examined the evidence.adduced at the trial in the District Court, the judgment of the trial court, the memoranda of appeal submitted by the appellants to this Court and the oral submissions made by the first appellant and the learned Principal State Attorney .at=the hearing of this appeal, and it se,ems there is no dispute between the parties that during the night of the 22nd/ 23rd Pebrunry, 1977, the dwelling house of P0W0l was broken into and various household properties, including Exhibit "A", that is a Dual Playing Radio Gram - and Exhib,it "B", which is, a pair. of shoes, were stolen therefrom0 .. . ...... Furthermore, there is no dispute that on the 2nd March, 1977, that is about a week. after the burglary and heft, the room where the first accused was living with the fourth acued,, who was his girl friend, was searchedby.the police who i.1Ud P0W03 _Jil (a policeman.)-and POWO4 (a ten-tell leader)0 The first aççu sed, who is one of the- appellants int -iis case together with the fourth accused, his girl friend whowas acquitted at the trial, were present during-the. searchand 4 v.arious household property... including various pairs of shoes were sized and .taKen.to the police, station. where various people,,. who had reported at t he police st.ation.aout loss of property, appeared . to identify them0 . ': ..... F-urthermo're,. there is no dispute thtort the same day of the 2nd March, 1977, P,W0.3 and P0W04. were among the person.who..searched the room where the second accused, that is the secodappelant in the present case, was living with the third accuseclao his girl friend0 The third accused.was p'esent during.the,search but the second accused., who is the second appellant intlie present case, was absent,, and various suspected household properties including a Radio Gram were seized by the police and, taken to the police ... station where various people, who had reported loss of properties, . appeared to identifytbem0 -3- With regard to matters which are in dispute in this case, it is the prosecution case as laid out at the trial in the District Court. that Exhibit "B", which. is. pafr of shoes, was identified by P0W01 as being among the properties stolen from her dwelling house during the burg1ry and theft of. the 22nd/23rd February, 1917 1 and that this Exhibit was among the articles found in the room where the first appe1lait..was living with the fourth accused, who was acquitted0 It is the prosecution case that that exhibit was under the custody and control of the first appellant0 Furthermore, it was part of the proéciition case that Exhibit "A', which is a dual playing Radio gram, was among the property stolen from P0W01..during the same burglaiy of the 22nd! 23rd February, 1977., and; that this Exhibit "A" was 'arhong thu' articles found in t.e room .wlier.e the second.appel 1.ant was' Iiing together with the third accused, as, his girl friend, who was. acquitteth Furthermore ? it is part,.ofthe prosecutiOn case that this Exhibit"A" was found in the custody.and cpntrol of the econd.appellant 0 The defence case. of the first accused, 'who is the first appellant in this cas4e,,. . to the effect that ExhiSit "B't is not among the pairs of shoes found in his room, and 'that the only pairo of shoes n oud thereiwere later returned to him when no one laid . a claim to themat the polce ,statlond. The defence case of the second .:ccused, Who is the second appellant 'in this case, is4.,to...the effect: that Exhibit "A" was. not among the artcles.fpund irihi'room, and that theRadio Gram which was found in his room is.not 'Ehibjt "A"0 The first point for consideratiOn and decision in this case, is whether Exhibits "A" and "B'!..re sufficiently identified as being part of, the. property st.olen 'from. the dwelling house of , P.W.I. Threis no prpblem about Exhibit A, that is,, the Dual Playing Radio Grain because P•0W1 happen?d to have retained its box which had a serial unber which tellied..with that, on Exhibit 'A"0 On this evidence, I find it-is a fact that Exhibit "A" was 'among the property stolen from the dwelling house of P.0W'0l during the burglary in question0 - -- - 144M. 1flS qou sem aLls t4; o; p s; aqs uoTtweso.2d @Ljj Aq peuTu1x—ss.ot2 SM '.po;;:rb SM O4M. 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Il PUOD @ S oq; ;o uoTSsssod, aqq uT p-uno 5PM UVI& TTx- PM 5T SPD S4 Ut UOTSTDPp pu UOt pTsuo lo.uT0.d xI -.u: j ;nds.tp q; go pui buq UOT;dTDsp je jnDT qJ 2d 10 pPTP;PP ;nouJTM ;UTt;;flS ueq PAP 0U PIflOM UOTIPSSP ajeq EItlL .P;n'dsTp eU3c etq; pPq U3Tp uq pnoM uoT;Tod eq '- -.uo;;sonb UT AaeTbanq • . .• ,. . .... q; buTlnp PSnoq 5UTIIMp S&'VM3 w0JJ UP[O;S 'COJd eq; 6uoux 5PM jigia 4 T 4 TLIX S 4 eLI4PPfl[DUOD 04 p9{ aJ O J:D J E) q.q, UIP • pUP SPD 0 uosd @ Llq ut puaddoi4 4 2 qm s-r,si- tdo.d ;o dt4suMo o ;T;uepT eq;. ;qnop .puoq qs TT q pq so 0; ;uPTDT;;ns 5 T ;T 'p;ndstp ;ou 5:1 L14 2 0 - uo upT PSSP ;: pus 'A;dojd ;o dTsuMo loA;,;upt aq q ;noqs q;so uo u0TPSSP PlPq s •)U 5SUTM..P PqMPq; uotutdo - .p ptsuo - ,.e.;'o ws i ° 1UtDt;rts - STjjEjj& ;TqTx 30 A,TUePT aq;.;noqs p° ;o UOT SSP ajsq @q; IPt44M SStlP aao ja j a uq uot;srtb aLjj opp;1ds-p: ;ou. 5 T a snoq 5UTITPMP lPt. U19l3 UP04S SpTlei4; bUOUIP SUM 4T UL4 74 q;so u0 .UOtleSSP 'JPAMOH - UPTU.0D 41M ui; A;i;upt plrto3 IM°d - q3qM 'q . sein;s; 10 - tPTdS ou .uq sq, o; slddP a jaq q SPo4s 30 içsd aqj T 'E ;Tqqx2 0; P1P5l 11'":M —7.- -5-. Exhibit "A" was the same as the Radio Gram found in the room in S. question0 And when she was cross-examined bythe second appellant, she testified to the effect that there was a receipt for Exhibit "A", and purpoted to show a rceipt in court which, however, was in the ' name of one Barton and not in the name of either herself or of the second appellant0 Neither the appellant, nor his girl friend gave any explanation abput the said Barton. On the whole, the evidence adduced on behalf of the second appellant , appears tb)5e shaky and on S the other hand the evidence adicéd by P0W03 and POW.4 with regard to the finding of ExhiDit "A" in'the room of the secord 'appellant S ppears to be solid0 Furthermore, according to the evidence adduced, it would seem that the girl friend of the second appellant laid no claim as to any of the properties seized from the'room in question. And since, according to the evidenqe ., the secfid appellant appears to be the owner of the room in question, itThuist follow, therefore,'that the properties found and sezed±n ie 1 oom of the second appellant, including Exhibit "i-s", were in hist custody and contrOl at the time they were found and seized0 In other words, Exhibit "A" was in his possession0 The next point for consideration and decision in this case y is whether Exhibit "B" was under the custody and cntrol of the first appellant0 The .first appellnt' testified to.the effect that' Exhibit "B" was not found,in his'room'but four pairs of shoes together with the other items were found therein, and the fOur - pairs of shoes were later returned to him by the police in the absence of any one laying a claim to them at the police station. In his oral submission made at the hearing of this appeal,, the first appellant stated that there appears to be a contradiction between the evidence of P.W.3 and the evidence of P.W?4 regarding the number of pairs of shoes found in the room of the first appellant. I have examined carefully the evidence of P.W.3 and P.W.4 and it is apparent that P.W.3 testified under re-examination by Al the first appellant stated:-.:'. "There Were ' many p'ars . 'of: shoes ';about four, two male pairs including platform or satana, one pair Exh0B was of the pairs0'.' It is apparent also that P0W:04 testified., under cross-:' examination by the first appellant and stated:- "There were other'ai.rs of shoes, s6me . tWo pairs., one a'Hih'hel modern shoes0"0 The first appellant contends that P0W03 testified aboUt finding four paiEs of shoes Whereas P0W04 testified about finding only two pairs Of shoes0 I do not think that the evidence of P0W04 can be taken td 'refer only to twd pairs of shoes since his relevCñt part of the evidence may also mean that there were other pairs of shoes besides the two pairs in question0 On the evidence adduced at the trial on both sides, it seems to me that there is no dispute that actually four pairs of shoes .'ere found in the :room of the first appellant'and I find it so to be a fact0 ' The 'uestion, however, arises whether Exhibit "B" was among those four pairs of shoes 0 The 'fourth accused., who was the girl friend of the first appellant and was acquitted,, testified under cross-exa'iination by the first appellant to the effect that she was not sure whether the shoes produced at the trial as Exhibit "B" were among those found in the room of the first appellant On the other hand, P0W03 and 20W04 gave 'evidence quite' firmly and confidently that Exhibit "B" was among the pair of shoes found in the foom of the first appellart'0 Their evidence was accepted by the trial court arid I can see no reason to differ0 I therefore find it as a fact that Cxhibit "B" was among the pair of shoes found in the room of the first appe1lant. Since, according to the evdence, the first appellant admits that the room in question was his and has testified to the effect that the foucth accused, who was acquitted, was only living with him as a girl friend, and since this grl friend laid no claim to any of the p'operties seized by the police in the, room of the first appellant, it must follow ' ' that the property found and seized -7 - by the police in the room of the first appellant were under the possession of the first appellant, and I find it so to be a fact0 The next point for consideration and decision in this case, is whether the appellants were properly convicted for the offence of receiving stolen pr.ope.rjy- .cpritrary to .s.ecton 311(1) cpf .the' 4 .. i Penal Code. On the facts, only a.week elapsed betwéèn the -burglary •.• •-rj and theft and the finding othe. : istolei property in the possession of the appellants0 appL]ants wQuld' be properly convicted for, ti •oeric'e.,:of. burgary and stealing by virtue of the •:.- Doctrine of. Recent Posses;s:'ion.,f'Under which'jUl:ey, . would be presumed to be the :b,urglers and thieves unless, gá.ve"::i:. reasonable 'explanations as o'h.w'.they came into psession of Exhjbits' "A" and,,-".,"0 • hsn would vsupport the convictionsEor the cif f en ofy property whi'le:' knowing or hing cause' to )cnow1 that the property 'was stolen unless " the appellants gage peasQnbla explan c~ tiond to suggest that•:. they did not or could not •have known thaj 'Exhihits 'AY' - .and' "B'.' •.re 'to1en0 .' No explanati isforthc'ominq;frprn the appellants, except denial0 They were,. therefore, poperly:con'victedo• With regapd.to,th'jentence o.iht years' imprisonment.'each, it is obvious that ihe off ence of receiving., stolen property -•i:'t.'- originating from .: a burgiary..falls und,r the Minimumentence,s' ,. Act, 1972, and a.minimum. seterce oj three years' frpr-snment.. It is also obvious that under section'. 7.f. the Criminal ?rcedu.re:...... Code, as amended by-Act Nb 2. of 1972.,e .subordinatq co.urt...whi'ch ..'. convicts a person for an off enc.e.'scbduled under the Minimum' - Sentences Act, 1972, has.jurisdiction to iiipose, a sentenc'e not exceeding' eight years0 Under, section 7(2) - a sentence whch 'exceds the minimum sentence requires .conf.irmation.bythis Court0 -. ... .....•., .. In the present case, therefore, the 1,ower court ipo.s,ed ... ., the maximum sentence that it is empowered. to do0 This snt.enc1e,, 'S •, of course, requires corfirrnation by this Coirt0...Bu is tiere ';, , • 6/00b0 -UOT40TAUOD 9L61 eq; s -t GS .eb quasaad 6uTDueus ;o ssocI,rnd jog UOTtAUOD snOtAd uee.i Iiuo e; 'Os 0LL61UT p tU1WQDOS S'M qTqM U33O U2 sueuoes usid shq I ss2p quasaid ; ü 6uçuues ;o ssodnd io SUOTDTAUOZ SflOtA1d se. p;e q .OUU SUOTTAUOD LL61 "noqO qftS. °ss o ut ii5nq ro; LL6T. u 9uot40tAuo snotATd p4Tn1p2 osP j .uuiuos -rrdurt i sqquow .4qb -ra o pDUUS st q t4DT4M ro utrq; Auoi; bt utwtuoz pu 5utptnq o; 9L61. UT p;çwuio SUoçYAuo.D SnoTA3Id PI4TWPP ';uTidd puos 04 p5a 4TM t aonpaj o. DA 9 q hIM I O SJA4 74BTa ;o uus bu -tsoduii .oj uott -r;snC OU St L1 'L6t 'PV sue;u wnwTu -qj iepun quawUosTjdWT ,sr2/ @ATg ;o uJnwtuui le o. 4U2TT@dde tfl 5U -rDüUS Ut qunoDoe OUt si 4u21Idd ST3 E4 0 UOtTAUOD SflOtAatd ZL6T aq; ODU iS snotAqo OST 2 st ut pqtrDse.rd ulnurtuTul aoq sA tq ppp .xnoD iroi eq es usE.td eq; Ut uu1uosT44u1t 9aA ç; ;o ui; wnwiutui e 04 qo@Cqns Sr U;;O pnpps • srlbT&ds@q oqtv Idd 'T Ll 'L6T 'PV US WnUiTUtw ZN4 ;o (Q))S uots ;o suoTstAord Ufl pepSUo q hIM L6t eq / -tuo 'es sTqq ut 6utuus ;o ssod.tnd ioj 'OI4J LL6t UT p6Tt.p @sOq4 s 9 awT4us nOq2 Pa44TwwOO SM usad aqq Ut pbxtp aouag4o aqq 'spro 3q0 U1 °LL6t UI ptwuio UJO ue sureuo s@ ;usatd eq uts OS20uesad o4 SUOTIOTAU03 snotAd eq o peepTSUOD q OUU LL6t jIT SUOtDTAUOD @qq 0523 J@q4OUe UT SL{UOW I0SpU2 .s2aA tj zDA @s pU 2 0s3 OUO UT . uowUO s tduiT .S 20 AxTs 04 pououes S2M 04 uoqi sos o ut LL61 u -t SUOt3tAUO3 snotiad pOTWpO OSh °H oueu1uoStdwT St20A ;D0Iqq O. pODUOUOS 92M 04 L6t. Ut 0 344 PUe k2h6inq j03 SUOT43T4UOD SnO40d p9;wp2 44 SMO4S 4.flO3oMoI 044 90 PJODaa 04 0S23 SI4. JO S0DU2SWn31TD OLfl. japun O3UO4UOS 2 43fl5 5UIULITUOD ro; uot423çT4snç -9-. Under the provisions of sectioh 5(a) of the Minimum Sentences Act, 1972, the second appellant is liable in the present case to a minimum of five years' imprisonmeni0 Since the previous conviction of 1976 is thus taken into account, there is no justification for sentencing the second appellant to eight years' imprisonment0 I will have to reduce it0 In the final analysis, therefore, the appeals against the convictions are dismissed but the appeals against the sentences partly succeed by reducing the sentences to five ,years' imprisonment for each appellant0 (/ I •0 'f ( F. LONYALALI CHIEF JUSTICE Delivered in Court at Tanga this 16th day of May, 1979, in the presence of Mr0 Sekule, lened Principal State Attorney for the Republic and b:th appellants pr.sent in prson0 F. L. NYALALI CHIEF JUSTICE