19820603 TZHC Tabora

IN THE HIGH COURT OF' TANZANIA AT Tid OPA APPELLATE JURISDICTION HIGH COURT CRI1.iNAL APPEAL NOk 206 OF 1979 ORIGINAL CRII:.INAL CASE NO. 127 OF 1979 OF THE DISTRICT COURT CF KIGONj\ DISTRICT AT KIGOMA BEFORE: A.M. BAPJJU,U, Esqi j Senior District Magistrate JUWAKALI SIBANI:.00O.00O...O.APP .ELLINT versus THE REPUBLIC . .. . .RES?ONDENT CHARGE; lst;Ct: Bu'rglary c/s 294 (1) of the Penal Code Cap. 16 Vol. 1 of the Laws. 2nd Ct: Stealing c/s 265 of the Penal Code Cap. 16 Vol. 1 of the Laws. DQMENT RUB AMA ,. J. ~ The jppe liant JUARLLI S/O SHpJ3pNI was charged with btir1ry d/8 294 ki) of the Penal COde and stealing c/s 265 of the Penal t6det He as acquitted of both these offences. He was, however, found guilty of receivitig stolen property c/s 311 (1) of the Penal Code and sentenced to 3 years imprisonment. The house of Hasdsi Kandege (p.w.4) was burgled on the night of 5/1/78, by unidentified thugs whose numbers were variously described by Vumilia Ramadhani (P.w.l) as' two and by Jenifer Bakari (P.W.2) as three. •p.W.l and p.W.2 are c,owives of p.wk who was then away from his house on safari, Tl.s'unidentified intruders stole from the room of p.W.l, P.W.2 and P.W.3, Asia Saidi, another, wife of p.w.4. The three wives were staying in separate rooms of thesame house, on 20/6/78, ,the house of the appellant was searched. looking for itE'ms not connected with this case. From the many items seized,., some items identified by P.W.l, P.W.2 and P.W.aS their; s were found. The witnesses testifipd that these were amongst the items that had, been stolen from their house on the night of 5/1/7.8 The appellant stated that when his house was searched, nothing of substance was found. He r.efuted the prosecution case that what..waS produced in court was from his house.. The appellant l's own-witness did however testify that many items 'e-r-e collected ron the house of the appellant after . 2 a search had been done.. He was a witness to the search which had been conducted during the day. The trial court accepted the case for the prosecution. He found P,w41, P' 1 W,2, P.J.3 and POW,!I truthful witnesses. He found established that burglary had indeed been committed by some unidentified thuga,,at their house on the night of 5/1/78. I see no reason to differ with this finding. I,too, find the witnesses truthful. The learned trial Yagistrate alsoaccepted the evidence of identification by P01,1 1 P,W.2 and p.w..4 of the stolen items exhibited in court. T hey had identified them ashaving been amongst those st®len from their house on the night their house was burgd. I, too, find this finding justified. Some of the identified items were underwears belonging to P.W.l and P.W,2. p.W,2 had also been assisted in the identi- fication by the fact that her underwear had been torn on the front. I need hardly point out the fact that an underwear is one of the most personal item one can have. The position of the damage is unique and of a nature that cannot easily be over looked by the wearer. The learned trial hagistrete properly addressed himself to the law regarding the doctrine of recent possession and found himself unable to invoke it in view of the lehgth of time between the night the items were stolen and the day they were found. He however found that. the appellant was not an innocent receive'rof the items. The appellant gave no explanation at all as tb how he had come across the items; indeed he had tried to discla.rn possession of the same - a claim that was, on the evidence on recordi properly rejected. On this findir the appellart was found guilty c/s 311 (1) of he Penal ode rdaquittëd bc d àharges that had •appeared on the charge sheet. Ifin t 4i.e conviction was justified on the evidenceaRd the appellant's grounIs of appeal without men t. The sentence of 3 years in tIte .circumstances was proper. Theappeal is thsdis.mised in its entirety. YAHYI. 1J3AhA, J. 3/6/82