19880212 TZHC Morogoro

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JO (t) TT g/, j..IGd0.Xd ueOs 9 UTJLTaQBZ O TAUO0 Gl3m 'VNI{flIAI NHO2 41t oq ..-: - ( 0° d t5 UTT.1 O) IMosra...00' 00' Mi ll 4 -•-•.- vmxvlq NHO2 ly qot.xi 'a 'tetor .- oocaoD'I aonitsIct 0110004w ro anoo oisi ii do 2.861 O T1 'ON VNINIZID VIVNIOIUO 2.81 IO 991 • ON rlV gcT cTV NIWIHO &flOO !WIH r oioobiow 17 VIIIYZN V i,inOo HeIH 3HI NI F / —2- above They questioned appellant and he stated that they had been brought to him by Sanzagara Maulidi They then took him to the Police Station where he was charged. In his defence the appellant stated: "1 deny. that I have not (sic) conspired with accused No2 - 13 to steal 7 bales and 9 pieces of clothes of the Polyster Textile Mills, What I admit is only that the clothes were seized from my house as alleged by the pro secution The way how I hadreceived was that, during night of 29.3 87 at 4.00 pm. (sic) 2nd accused named Sarizagara, the driver - came with a bus who was accompanied with accused 15 046 and 94 Accused No.2 requested me to keep for them till the following day when he would have collected them Both of them had removed my doubts because they told me that the clothes were their own obtained legally from the Pactory While 2nd accused has become my friend prior the Crime in question and used to guard his farm, I there- fore believed his statement to be true. Clothes tendered in Court as Ehjbjt No04 were the sole clothes I had received from accused No.2, 51 and 9th at night Next morning 2nd accused came who gave me 9 pieces of clothes cut from 7 bales as a reward and claimed that he would come to collect the clothes during night of 30/3/87. Unfortunately police Officials caine during day time who searched my house and seized all clothes, and I had to inform the the way how I had received theni In fact I did not know at the time of receiving if the clothes had been stolen and the fact because known to me soon after arrive. of Police 0fficials." Indeed the hales of clothes had been stolen from the Textile Mi11. Sarizagara and the ether eleven people referred to above, being - employeof the Mill, were suspected of having conspired to steal them They were therefore all charged, together, as stated already, with the appellaxit They were all convicted. Bxcept for Sanzagara, however, on appeal their convictions were quashed by Msumi, j (See (Ho) Ci. App No63/87 2 Leoni; Mbena v R) Sanzagara explained at length how the bales were taken out of the Textile Mili'. He then said he and others took them, at night, to appelant's house..- The appellant put no questions to him during cross—examination. On the above facts of the case, the learned District Magistrate he1d "To prove an offence of receiving against the suspect its burden usually shifts to accused himself who is to satisfy a Court of law that at the time of receiving he had to reason himself as the cjrcumstance does allow, be1aviour of the given, time factor and quantity and its cntainer. If the accused believe as has reason to believe the property had been legally acquired them he may receive but failure of which he has to be treated a thief of receiving stolen property likewise in this case. Despite that, 1st accused was a friend to 2nd accused p-nor the crime in question but there is no evidence that shows any incidence had occured between that during their fniendhood (sic) of giving and receiving any small quantity from each other. The large quantity he had received for first time was for reason ott, and would bother for him to call an eye-witness or a ten-cell leader'.' His failure to do so proves that he knew that the property had been stolen that is why he failed to report it out Not only that he was promised that the luggage would have been fetched from his house next day during day time but in the alternative accused gave him nine (9) pieces and agreed to extend period of keeping the clothes till the following night' Therefore it was clear for him tc understand that the property was brought during night and was required to be fetched at night thus directly proved to him the property to have been illegally obtainod I therefore find him guilty and is hereby convicted as charged under S.311(1) of the Penal Code C'ap.16" I must confess to my inability to make head or tail of much of what the learned magistrate says in the above passage. It is apparent from the passage, however, that the trial Magistrate cnsidered appell&it T s defence and rejected it' Whatever the case, there is no dispute in this case that the appellant was found in possession of tbe. goods mentioned in the charge' He admits that he was found in posses- OiOfl'Lof those goods There is also no dispute that they were the property of Morogoro Textile Mills Ltd' They were stolen from there and brought to the appellant by Sanzagara Maulidi for safe keeping Under s311(1) of the Penal Code a person is guilty of a felony who receives or retains any chattel, money, valuable security or other property whatsoever, knowing or having reason to believe the same to have been stolen Under the circumstances of this case therefore etc:dmits receiving, the issue for determination where the appellant becomes whether he,eceiyed the goods, knowing Or having roaon to bljov the same to have been sto1en -4. arguing before the on this point Miss Korosso submitted that considering the large amount of the materials which were brought to the appellant and considering that the person who brought them to him, Sanzagara, was a mere driver who could not have been considered to have possibly afforded to buy them and considering also the SUI' rep-titious manner the goods were brought to and were expected to be removed from appellant's house, iceo at night, the appellant ought to have known, and he in fact knew, or had reason to believe that the same had been stolen With respect, I agree with Miss Korosso that on the grounds she has stated the appellant knew or had reason to believe that the goods in this case were stolen goods I accordingly reject his defence that he did not know that they were stolen goods for being a false defenceo I dismiss his appeal against conviction The record shows that the appellant is a first offender0 He appears to be of an advanced age He states in his petitionof appeal that he is 62 years and the record shows that he is 45 yearse Under these circumstances, while of the view that he was properly convicted, Miss Korosso felt that the sentence of eight years' imprisonment imposed on him was rather on the high side' With respect, I share these views too. The maximum penalty provided for by law for the offence under s311 (i) of the Penal Code is ten years' imprisonments The minimum under the Minimum Sentences L.ct, Noi of 1972 is five years, as the value of the property involved is above shs0 5 9 000/ Conside ing the age of the appellnt and the fact that he is a first offender, a sentence of eight yea::s imprisonment is manifestly excessive I reduce it to five (5) years' imprisonment0 The appeal against sentence is therefore allowed tc the extent indicated / LJA KYJNDO JUDGE 12 288