19791219 TZHC Dodoma

, . ,. •: :- ' .. •.': • • ... :4 ., -: '• -.. -,_.J, 0 , . .. . . . . J f c: IN-HE-HIGH COUR OFThNNI1 AT DODOMA j + 34 : j ;,z-.j;t : CRIMINAL APPEAL No 0 1'9i' •- L' L 1 -, •f4 (Origin1 Crinu.n1 tisc No. 16 4f191ifJ't b1-tt1Ct C(aUrt ]YO C, ih )Z ' S - - -- • - rit., .' y r - Bdfre: EE.- • 1-iUSSEEN I4OHAMED - -• ... .,. . -M?PEJL,ANTS ALBERT PAULO , • • ,• . • . • • :; -#-- - -- •fl' r .1 E - V. ersus . r1I. REPJBLIC TW . - . . • . . . PONDENT rj H i'Chtgeu hop—bre akin9 a1 i 296 (1 thJh65 of the Penal / L1 Code. .. 1-1r - -- )Ln. r ' i;..4. U -. 77 ': - MAINAj J. 1-'-- - - Itwo appellants Hussei'n M hcm.. in 1 Albert P.u10 whc -i 4I1(p.. appe ard at the trial s thL first' -iri SLC' n" accusc ,respectively which description I will retain in th15 5u'gmor.t, w oin€ly I charged with, and ccnvictcd of shpbrJciñgr an stealing ccntrary o sectins 296(1) 265 c'f th P n-'l C k, ,thoy were each ;• -. .sentenced to five years iii:risnmC-n .Theyfl. W to this Court. Thevidence for the Pr...sccut.on ws brifly -is fcllcws. On the night of -17/ir Juno 1970 , a shop h l.n1nç} t.. 1).W e 2M )huned Manji , wqs broekn'int in Dod ili tcwnShip -n soyrl tap r. c'rders, steno raUograms, w3tch s n dth.r "r 4artles werL st lcn from - 1 the shop. Thort w -is evidence 6f r1tXi frivf_r.?P.W.5 All Almas c to tl;e effe ct that the 2nd acuoc' hir I Ali's taxi. on 19/6/7$. - , The taxi driver said he drIv th(l on the '1 J.• '+-,., }' 5 - outskirts of Dod nv-i t wns1ip. Th 2n' 'ccus l c9ll ctcd two boxes which he lea le I jn' the 'txi.' H, 1,. instructed tho driver tc. f: . . -• I-i ,.. ,take him 'mn I th h xos t flc thor in Dcrn -i where the b zes t - , were ff—lo-ided -ilong Dom/Da.lv-m rY 1 0tA1i dd 1 not know what was in the bozes In th 'inincof L th sa iy 19//78, - .4 - khelst iccused sent th hGs to .ho hous.. of .-.W.3 H -itibu Mgoya. Accr'i1ng to P.W. 3 H'itibaMgoya, th. 1SL accuser tol' him that the boxes contained Ralios. Tha bôx-s taycd ) 1n HatibU'a ouse , for two ys. When Hátibu h.ar-.l that th lstac'scd's house was searche 1 he (Hatibu) sent thLj boxes to tho bush where he hid them there. -,- - '. - •, - "I - on 20/6/7 the first "tcctIs.id's jiri.frioncl P.W.4 Salome • Mathis received a parcel from P.W.3 Hatibu. The parC1 contained many watch's which Salóm saIl-_ she hic'. sm whore in a house. S- • . The accused persons were arrsthd n2O/J7S. The 2 ccuac4 Was arrsterl• first and he said th: g.'oTs wer with the first accused. The first accuseds hous.: w .scarchci but the stclen , properties were n.t found at his houso H tall polco that he had sent them to the house P.11.3 Hatibu. D/C J.:'seph (P.W.1) proceeded to Htihus house with the a:oullants. Hatibu Was at first hesitant and at last ho agr.od h': hod receivoi the gcc•s which he had hidden in the bush. The b xes were later reccvered in the bush as pointed out by Hatibu hircts. if. The bxes contained radios, raidogr-ms, tape recorders an" glasses for watchs 3 all of which were identified by Manji as h .ing snong the properties stolen from his shop. The 1st accused's cuncjbjne Salca.. (P.W.4) was arrested in Konca and she was brought to Do ma she iroe:Fthe 25 wrist watches which she sail Hatihu h -. jivcn her The watches also identifiedhy P.W.2 Manji. The first accused told the trial curt that th häxes were sent to him at night by the sec. n1 accused • The 1st accused sent the boxes to 1).W.3Htibu an I he soil h0 111 n-t knw what was inside the hxes. The 2nd accused sai the hxes were sent to him by a frien 1 callel Cbale Ho egro,;i p. LSt the hexes to .th.e 1st accused. •." There can be nc '. ubt that.the complainant Menjj's hop. Was roken into and vai.us radipS, raliograms and oth prapertes :,Stolefl from therein. The learned Stenj - r R:sjnt Magistrate who c:,nvicted the. appe1la4ts. was. satisfi..;d that the al o 11 ants were.., possession .f. the stolen goods, soon astor the theft. of thcse pepertie.s arJ that they were the thi ;vos. The 1.arieJ julge. who .admjtted this, appo ci to he arinq minuted tho7t the quo stion. p. f 4cconp)4ce evilence h"l to b. cnsilrei. Th evidence of P.W.3 1-latibu a%U thtf the,.fir;st ccusod. P.W.4'Salome was as cçeded by the learned State Attnraey accomplice evidence. Hati.bu's conduct In receiving -twc boxe s and hilinc; th..m in. the bush can hr1y be consistent with inn°cent. rccuivinp. EveX when police went to in h did not tell them straight away that h had received the twc boxes. ,Hedenio1 at f i r s t an I finally he agreed nd sent to the police tothe,. bash where h 'ui':Ien. th two bexos. His ' . evidence certainly requires ccrroloroti.n. The 1st -,Ttccuse,d 1 A concib'ine P.W.. 4 Salome received th ... wrist watches 'nd, hid them. Tfl.Were 25 wrist wath'. s. C.;rtainly sh.. kn w they wore stolen and that is. th" reascn she hid them an... left Do icma. ar, evidence, tee requires ccrcborati.ri., . ; -- - - - As regards the evidence agin:t the 1st accused th., evidence of P.V.3 Hatibu and p4 Salome has bcn corroborated by the evidence of PW.1 D/C Joseph who arrested the 1st accused. The 1st accused led the police to th. house of P.W. 3 Hatibu aid it was through Hatibu that the boxes were rec-:;vorod. So the evidence that the first accused sent thebcxes to Hz±ibu is corroborated by the first accused's statement t police which statement led to the recovery of the boxes0 The first accused himself does not deny he ent the two boxes to HtibU. He said he did not know the boxes contained stolen properties0 But acccrding to P.W.3 Hatibu, the first accused told Hatibu th:t the boxes contained radios. These radios were later identified by the complainant as those stolen from the shop only two days earlier. Furthermore the first accused said in h::.s eridence that when ho received the boxes 7 he did not wat his concubine Salorne (PW4) to knuw much about them and the first accused sent them in the night to the second accused This conduct 14 certainly not consistent with innocence The oecond accused had hired the taxi from P.W0 5 Ali AlmEii and the boxes were carried in the taxi, only a day after the theft. I agree with learned State Attorney that thc evidence of the taxi- driver corroborates the evider::e of P.W3 HatihU. The same boxes which the second accuse-I carried in th0 taxi on 19/6/78 contained the properties stolen on the night of 17/18/6/78. The Second accuse,d certainly was not the JAzinocent receiver he claims to be. The appe1lants possession 'f th stolen properties only a few days after the theft, and the mcmner in which they dealt with these properties, left no doubt that thoy wore the persons who 7 jointly and together, broke into the ccmo1einant'shop and stole those properties. Each ap:ell'int recei;i th minimum sentence prescribed by iaw. - In the result, these appeals .re lismissed. (1 k&4A W.J. MAINA JUDGE Dodoma 19/12/79 Mr.Khabauh r State Attorney r Republic Both alpellants present in pc?rsofl.