19700818 TZHC Dar es salaam

IN THE HIGH COURT OF TANZANIA At Dar es Sal aam. Criminal Appeal No. 475 of 1970 (Original Criminal CaseNo. 382 of 1969 of the District Court of Iringa District at Iringa). Before:— B.S.Hoz, Eq., - District !agistrate DAUD rJZALAMALENGA ....... ..... .APPELLANT versus THE REPUBLIC JUDGMENT HAMLYN, J. - The appellant was convicted of an offence of receIving stolen property, contrary to section 311(1) of the renal Code upon a charge of stealing from a motor vehicle, contrary to sections265 and 269 (c) of the Penal Code, in the District Court of Iringa. He is now appealing against such convicti.on. The trial magistrate heard the case vezy carefu.Ily and gave fall consideration to the evidence before him, A considerable amount of stolen property was found in the appellant's house and there can be no doubt but that it was stolen from one of the Tanzania—Zambia road service trucks No. EL 7544. Upon discovery of the theft, a junior controller of the service went with the local headman to search for the missing property and on their way back from an unsuccessful search 1 met the appellant on his way to his house; he was carrying a tin of diesel fuel and was stopped and questioned. As a zesult of this discovery, the junior controller and the headman proceeded to the house of the accused and there found the stolen property which was duly identified as having been taken from the truck in question. The aøcused made an uneworn statement when his rights of reply to the case for the Republic were explained to hIm. He informed the Court that he had been given the articles found in his house by one Abubaker, though he claimed that the tin of diesel fuel belonged to him. He did not see fit to call Abubaker to substantiate this version of the matter. The trial magistrate considered the evidenoe before him and found that proof of' the aclual theft b the appellanwas missing; he also found that a reasonable presumption arose from the date of the theft and the date when the property was found with the accused, that he was guilty of receiving and he convicted him of such offence accordingly. I can find nothing in the Petition of Appeal or on the record of the case to raise any doubt as to the correctness of this conviction and it is clear that the case against the accused was a very strong one. The magistrate rightly considered that, had the accused in truth received the property from the man Abubaker (either as a gift or sale or merely f'deposit), he would have asked that this man be called to corroborate his assertion. In the event,: he did not desire to call him and there was therefore no corroboration whatever of this mere allegation by the appellant. This Court considers that the evidence before the lower Court leaves no reasonable doubt as to tue guilt of the accused and that the appeal is wIthout substance. In so far as sentence is concerned, the lower Court has taken into consideration the frequency of this offOce within its jurisdIction and has imposed a sentence of three years imprisonment on the appellant; T do not consider that such sentence is in any way excessive and it Is hereby confirmed. After reading the record this Court is satisfied that te appeal has been lodged without any sufficient ground of complaint and I consequently order that it be førthwith summarily rejected. Dar es Salaam. .(o.T. HAMLYN) 16th August, 1970- JUDGE,