19890314 TZHC Dar es Salaam

IN TM hIGH CUUHT 0F ThNZ1,NIA PC.· CMIMINAL APPbnL N0.12/88 (Frum the de6isiun of the LJistrict.Court of Morotoro at Moro 0 oro in Criminal kppeal No,44 of 1987). Orie:i.nal Criminal Case No.7/37 Primary Court Mvomero -'-- LBbNi-dfo KI!.:iAKO •••••••••••••••••••••••• 1-,l:-'PBLLii.NT (Original Accused) versus THE i:U!;PU13LIC •••••••••••••••••••••••••• .1:1.BSl'ON:UENT (Original Rrosecutor) JUL-GMENT 'l'he · apt_ellant was chvrLed in the i-'rimary Court at Mvomero, Mo.roeoro of the :Uistr~ct, with theft Contra Sec'tdon 265/ i!enal fCotde and assault ceca- . - o ;he ssionine actual bodily hc:.rm contra ~ection 24Jl l'enal Cocle. He was alle- ged to have stolen a sewin 6 machine, a bicycle a watch, anct money (Shs.- 600/==) the property of the c 0mplc1irwnt, 0eo Mb owe, at 1.00 a.m. on 28th J&nuary, 1986 at 0akawa Village, Mvomero uivision, Morocoro .uistrict. CcJnc0rning· the assault he. was alle1::,ecl to have assnulted, ancl occassiunetl actual bodily ha~m to, the said Dea Mbowe 1['1l 4th February, 1987, at about .4.00 p.r11. c.t \rJ/Dakawa villae;e, Mvomero, Morogoro l..iistrict. he sas charged with another person, one SHABANI DUYU, l:3ut the Primary Court acquitted this other man of the offence of theft. It only convicted him of the assault offence and sentenced him to£. fine of shso 1,000/== or imprisonment for une month in defa:, It appears that i:>HAD1dU bUYU, was sc.tisfied with the decision of the Primary Court and his matter ended there. The appellant, on th;e other hand, was found guilty of receivin~ the watch chart,e<l in the count of theft and he was sentenced to imprisonment for three yearso As regards the ofience of asoault he was found guilty as charted and was convicted and sentenced to a fine of Shso 5,000/== or imprisonm~nt for four months in'defauit. Be was disatisfietl with the d0tision of the Primary Court and he appealed abainst it to the Listrict Court of Morotoro. The latter couri (Shilog{le ~LM) set aside the conviction for receiving and substituted for it that for theft. as oritinally chqr~ed in the charge sheeto The learned ~rincipal Listrict Magistrate also confirmed the convict.ion for assault occ&ssioninu; actual bodily harm. He -felt that ' .. 0 the sentenci of three ysars impo~ed by the Primary Court for receiving was beyonJ the powers of that court to impose. He therefore held as follows:- Oeooo ♦ (2• - 2 - 11 o .uue to seriousness of the cf fence .( of theft) the appellant com~ittetl he also deserves a severe\. sentence. I therefore set asi~e the 3 years imprisonment sentence which was illetally imposed, and at the same time I sentence the appellant to 3 years in jail on cuunt onen.ooo••ooooorJooooooooou He did not disturb th€ sentence impos~<l by the Primary Court for the o:f.:fence of assuult occassioninc actual. boJily hnrm. ~he appellant wus agtrieved by the decision of the 0istrict Court also and he has appealed to this court against it. Kt the he~ring of this appeal before me, he appeared in pe1son. The Republic was represente~ by Miss. ~hilip, learned State httorney. Soon after I heard the appeal, I allowed it, quashed the appellant's convictions and set aiic.e the ientences imposed on himo I directed that if he was in jail servinB the sentences he was to be released from there tmmediately unless he was held for some other lawful causeo I reserved my reasons for this decision anu I now Give tho§@ reasons. 'l'he cumplainant's case was tho.t in the evenn.ng·on 23th January, 1986 1 when he entered his shop he found his sewing machine, a Citizen watch anc. shs-. 600/= missin6. tle inquired from ;the youths who were' then aruun~ but they said they were not awaie that they had been taken. The next ~ay he went·to make a report to.the police. He also started 0 to investicute in several places within his areao e went to Mvomero and saw the appelj_ant. Be clid n(Jt quarry him on that day ancl he returned tu his villaLeo C.m 4th February, 1987 while coming from MoroLoro at around 3oOO p.m. he saw the appellant and T',,,,,. They were I standin 5 near a hotel. He wei1t over to them ancl on g_etting closer to the appellant he. noticed that he (the appellant) was wearing what he alle~ed was his watch, stolen on 28th l~nuary, 1986. He testified that he then went tu the CC~ Vffice for assistanceo There was no Militia man at the office so he retufned to where he had seen appellant and his colleague. He founu thl:lt they had movc::cl about 50 paces from where they had been. He called them and the ·appellant said to Duyu that they move on. Then he (the complainant) 1~n up to_ them and told them that the watch the appellant was wearin~ was his. The appellant allegedly removed it and passed it over to nuyu. the. complaindnt then grab~ed the appellant and they were then embroiled in a scuffle. People Gathered and int0rvened. ~he c0mplainant sustained a knocked out front tooth in the fi6ht. They were all led to the CCM office and finally the appellant and b~yu were charted with theft and ass~ult occassioning bocily harm as mentioned earlier on aboveo 0000000/3, - 3 - In his ~efence the appel]~nt explained that he h2d b0ucht the wa~•h the complainant -alle~ed he (the appellant) had st0len. _The Primary Court accepted this defence but fuund that he had bcught it knowing the same to have been st0len. Hence the conviction for receiving,under Section 311 ~enal Code. As shown alre~dy, on appeal, the Listrict Court fuunJ thc.1.t he in fact hi.td st0len the watch (and the other things mentiunecl in the charte). It convictecl him of theft as origina_;lly char~ed. ,. The 1earned ~rincipal 0istrict Maeistrate_reasoned as .fo'ilows in find.int; the appellant hacl stolen the watch and the other pr1.1perties: 11 ••• Bince the appellant in this case Wc,s.the 0ne who wa,s fuund with the watch which was stolen from the complainant one month before it.was found, cannot escape the liability of llim b8in 6 cu.llecl a tlief of the watch and. other issues (si•) stolen from the house of the complainant. necent possession ductrine is therefore c;1.pplicable in this case., 11 hs shown earlier on auove, the watch and other complainant's pr0perties were stolen on 28th January, 1986. '.J.'he complainant alleged tu have found the appellant in possession of the watch on 4th February, 'l' 1987. his was about one year, and nut one month as the learned Principal ~istrict Matistr&te helJ, from the date it was allegedly stolen. In the case of !V!R.l<\riR BIN SI0NGO Vo REX I TLR 201 / Hearne, J. stated the law on recent possession thus, ~t p.202:- 11 • • • The law on the subject of· recent possession is this: If a person is in possession of stolen property .... recently after the s te~lint~, it lies on him to a~-... -iunt for his posse_ssion &nd if he fails to account fur it satisfactorily, he is re<-=<sonably presumed to have come by it dishonestly. It depends on the surroundine circumstances whether he is Luilty of receivinc or stealinG• Lapse of time proi:;ressively weakens the presumption adid finally extineuishes it. When possession .. is not recent no presumption of t,"Uilt arises from the mere fact of possession, for at this stage it misht reasonably be inferred that the prisoner had come honestly by the property. In·deciding the question of whether posseS:ci.on is recent relative to the stealing, regard must be had to the character and value of the property. 11 · · I respectfully aLree with the above statement of the law on the doctrine of iecent possession by Hearne, J. Then iti the case of M.11.'rlKU bIN DM<ISUM\-'hi. V'u • .t1:r.:X I TLH 202, at p 203, he (Hearne, J) held thut possessiun ~y an accused person of stolen property (c~ttle) nine months after the ste~ling was not recent possession as to requiTe •-uo<>._/4o = 4 - the ac~used to cive an explan~tiono 1-1. watch in rny view is an ite.ni which c&n chc:.:nc;e hanr.J.s very easily. In one ye&r it can cb&n~e hanJs several times. I am of the view therefore that Ly 4th :f'ebruary, 1987 when the appellant was found with the watch in this case, the presumption that he had come by it dishonestly h..::.u extint;uisheJ.. The le1;;.rnecl 1-'rincipal .uistrict Mat;istrc,te therefore erreu when he applied the doctrine of recent po- ssession to the situc.ltion in this cnse. He may have been misled by his erroneus assumption that the perioJ between the stealin~ and the finding of the appellant with the watch was only one mo~th. But more sibnificantly, the doctrine of recent possession is also dependent for its application on whether the complainant has sufliciently itlentifie& the property as his. In the instant casa, apart from the cc. mplainant sayine; that he hud boucht the watch from c. Korean ancl thc:.,.t it was a 11 Citizen 11 w?-tch, he offerretl no evidence to identify it as his property. '.l.'he Korean whom he said h@i sold :it to him was not called to come and confirm that it was the w2tch he sold are to the complainant. hnd, as is known, tl10rel.so many 11 Citizen 11 type in the \eiatches L,country or in the ~orld ~enerally. How did the complainant :~identify.this on~ in this case to be the one which had been his? He mad~ no efforts to point out any iclentifying or descriptive mE,rks by which he was able to say it was his watch. In my opinion, the . complainant did not estaLlish that the watch was his in the first placer and on this tround also the occassion for the application of the doctrine of recent possession _diJ not ~rise. The appellant was erroneously convicted of theft b~ the Listrict Courto -"S-fur the offence 0f assault, it is evident that the complainant is the one who authoretl it. he decided to resort to self-help after h~ fuiled to get militiamen ut the CCM Officeo he c0uld have sought the assistance of other pe0p~e around, but he decided to pounce on the appellant and his colle&6ue himself and the result of doin5 thnt is wpat he· now complains a Lout o 11 e was the imitiator of the si tuD.tion which he now says resulted into an assault on him and he cannot be heard to cvmplaina about it. I am of the view that the appellant was not guilty of this;offence also,he was wron~ly convicted of it too. It was f0r the aLove re~sons th&t I allowed the appeal quashed the convictions and set aside the sentences imposed on the appellant. I d0 also now direct that the fine of Shs. 5,000/= if paid, should be refunded to him. 'l'he w&tch also is to be restfored to him ( the appellant) .y/ t;/0· /:"/ i,.( "i\/.' <)pl olc) 0 1,· I.., ·- \. _ ......_, , , ~·· TI •. ii.<\' n.?, KYHN.uO 0Ui.,GE .L.-1'1{ .l!JS s,:,.1,.1.Jvi .. ----· --------- 14th t11c:,rch. l_';!_L',~"'--