19861114 TZHC Mtwara2

IN THE: HIGH COURT OF TAi'~L..ANIA AT M'D,vARA . APPELLATt JURISDICTION HIGH COURT CRIMINAL APPEAL NOn30 .OF 1985 Original CLiminal Case ~o.67 of 1984 of the District Court of SongeL District at Songea Before: BoMo Luanda Esq. 1 Resident Ma9~strate YASSIN MOH;-;I•:SDI <, 0 0 0 o_o O O O O CO fa..PtlE.T.,J ,A.NT (.origir.=11 fa., ·.cused) versus THE RE.i?UBLIC 0 0 r- 0 0 0 0 .RE.Si?O.-.JDBNT ,o o O O O 0 0 0 (Original Prosecutor) .Rubamaf J. Yassin Mohamedi w.:is charged with two offe!l.ces under the Penal Code: firstly burglary contrary to section 294 (1) and secc•ndly stealing contrary to section 2C5. He was fouf:\d guilty and convicted in respect of both cour-ts and senb:mced to 5 years imprisonment in respect of 'burgla.i::-y and one (1) year imprisonment in respect of st~ali~g charge. He has appealled against b_oth convictions anJ sentenceso There was no direr.:t evidence against Yassin Mohamedi. Foam mattress was found in -:;_ possession of a neighbour of '· the victim of the burglary and stealing Mwanasha Hassan (PW.1). It ( the mattress) was properly identified by the said Mwanasha Hassan (PWol). ThE::re is no question of the insufficiency of the evidence of the identifi~ationo This mattress had been traced :by its owner beirely two days following th0 burglary and the stealing. The person from whom the matt.r.ess had been found maintained that she had bought it from th~ appellant and had produced witnesses to support her story; th~ appellant disputed this Story maintaining that he had· not sold anything to this person and had riot seen. that mattress pefore theno. 2 Admitting the case for hearing the admitting judge had this to say: 11 .,."i/Jhether the accomplice evidence on which appellant was convicted has been sufficiently corr'oborated or otherwise reliablG". The questic:-i now is whether o.c not Mary John (PW.2) from whom tl1e mc...ttress had been found was c.:1 accomplicB of the appellant .. I d0 not think soo There is no evidence at all to show that ~ary John was·anything but an innocent purchaser of the mattress. Sht: was in net=d of it and had no reason to susp(:ct the appellant as selling stolen property. The evidence of the complainant (PVl'ol) confirms this findingo Mary John had been very co-operative during the investigation of this cas~o She had also been forthcoming to the complainant and to the police. She had volunteered the information to the complainanto Her conduct is not that of .the guilty partyo Purchasing second hand things does not automatically .make one an accomplice to the seller of the goods that later turn out to be stolen property" In the Tanzania of today with all these 'mi,tumbas • around being sold all over ·the place ~nd not just at the auction marts. many innocent people would be put into trouble for no reason at all if on~ were to hold otherwise. Each case is to be examined on its own merit. rn examining ,this present one the evidenc~ cl~arly establishes Mary John as an innocent purchaser of the property that later turned to be stolen property~ This stolen property had been identified as that of the complaina~t and as having been amongst those stolen f}:'om the house of th~ complainant. The doctrine of the ~ecent possession had.been proµerly invoked by the trial magistrate in conv1c~ing the appellant. Tht: app~al has no mt;rit and is .:.:.cco.rdingly d:i.smissed., \. \_ \ - - ~~·-, . . - ---\..:::. . .. .. '' ~:' Yahya Ru:Oama, \_. . ~~ Jud_ge 14/ll/86 . t