19820910 TZHC Dar es Salaam

AT, DAH ,.ES.J:>:4Y½M ...... . .. (PC), ,9RINJ.NN;!1,i"ii.P~EA!i .N'.CJ,_. Jo iQF 1~82, · {From the decision of the District Court of Morogoro a.t Morogoro in Criminal Appeal' No. 51 ot 1980) '., DIRECTOR OF PUBLlC PROSECUTION •••••••••••••• • ••• ~ •••• , .. , APPELLlufT ·t 1' . versus ·, ,, - ... I \ 1 1. 2, SA~D ALLY MAKACHA_~ T.AUSI SHOMARI ' .................................... RESPONDENTS ! I. J U D G E ME N T ,,: MNZAVAS;. J,K. . were jointly charged The respondents, husband and wife,L,before Ma.tombo primary coll!'t wtth ~d convicted·. of burglo.ry and stealing c/ss 294( 1) ruid 265 of the Penal ( ..l i Code and sentenced to 3 yen.rs imprisonment for the offence of burglary and six months :iroprisonmeilt to~ the oou.nt of stealing, The sentences { were made to ·run concurrently• -~ Dissatisfied with the finding and the sentences imposed by the primary court they appealed to the dtst;r-:i.ot court. The;i.r appenls were upheld .a.nd they were set free.. T]Je :Re:ptfblic is now uppen,l:i.ng against the de9ision of the district coupt! ~ Miss Ngholo, learned state attor:n~y argued that there was ample evidence. ;i.mplioat;i.ng the respondents with the offences of burglary and ';. stealing as found by the primary court, It was submitted that the dist);'ict ~ourt erred in ~uashing the convictions and allowing the appeals. In support of her argument the learned state attorney referred the Court .\ to the evidence of PW1, PW2, PW5, PW6 and PW?. The learned courtsel finally argued tho.t the primary court magistrate was, on the evidence, right in invoking the doctrine of recent possession and finding that the respondents were burglars. In his defence the first respondent argued that the clothes he was found in possession of were his pe:r:-sonal p:r:-operty~ He aleo attacked the evidence by the complainant, (PW1), saying that she gave contradi- ctory stolllss regarding the amount of ~oney stolen from her house. The wife, second respondent, mE:lr~l;y told the court that the clothes found in her possession were brought for her by her husband, the first respondent, that she has been married to him for nine years end that he has never known him to be light-fingered! The facts lending to the arrest and arraignment of the respondents were, not seriously in dispute ruict are n's follows: · On 23. 11 • 79, the complnin,ant, (PW1), locked her house and went to her relatives. When she returned on tne following morning she; to her . •••••• /2 • \',, t . ' . '' • " , C i _·--..1ullilll:l!!Jl_.1·l!l!.4#il!!M!!Cl''.:.!•\+.id::W~ . •.· · ~!(.~ ~:•:~'.".::C,t ~ ~~ ·;r:;&~ ..,. 2 ... l?-- 1~~•' ~·· '~ astonishment, found that the Window to ber room had beetl broken into. On entering her room she found -~:_.:-;·; her box full of clothes missing. ·The box contained among other clothes, khangas, vitenges 1 table clothes and shs .. 400/= cash. She reported th.e matter to the police and wheels of investigation were put in motion. lm _empty box· was later found in the bush which box was identified by the complainant as her property stolen from her house with clothes on 23/11/79 •. About two weeks later the complainant saw the first appellant wearing a T-Shirt ·and a c~ .._which she recogn;i.sed as clothes of her husband stolen fror:i. their h1t.$e o~ the · material n:i.ght. The police was informed of the discovery· ·and fi~t accused's bouse was searched in the presence of two elders (PW3 and PW8). In the house five pairs of vitenge, two bed-sheets, a vest and many sundry lady dresses were found. These clothes were taken by the police and later the complainant identified them in court with sundry peculiarities as the snme clothes stolen from her room. Some clothes were also found in possession of three villagers - PW5, PW6 and PW7 which the complainant again identified them as /part of the clothes stolen from her. A],.l the three villagers tol_d the court that it was the 1st respo- ndent who had given thei clothes to them after they had helped him in cultivating his sha.niba! There was, I agree with the learne~ state attorney, ample evidence connecting the first respondent with the offences charged. · He was fo-und in possession of almost all the clothes stolen from the house of the complainant two week$ after the burglary and stealing. In his defence 1 as r,tghtly argued by the Republic; the first respondent only talked about the ·clothes he had given to the three ·fr villagers (PW5, PW6 a.."ld PW7) as being his personal property, but he was silent, and no doubt for good reason, about the clothes he was ~und wearing and those found in his home~stead. As I have already mentioned above the compininant amply identified the clothes as her property that had been stolen from her house. Complainant's h~sband, (PW2), also identified the clothes. The clothes having been identified as the srune clothes stolen from complainant's house. and the first respondent hav.ing failed to give a reasonable explanation as to how he crune to be in.pospession of the property the inference un~er the doctrine of recent possession is that he was either the thief or a guilty receiver. Talcing into account the fact that the first respondent~was found in possession •of most of the stolen property only two weeks after the collJIIlj,.!;lsion of the offences the primary court was rigllt.in coming to the conclusion that the first respondent was more of the thf"ef thnn a guilty receiver. As the house was burgled before $tealing the clothes the first respondent 1;1ust have . , .•.•• ,..~/3 •..;,· ·-11 :,/{ 3 also participat~d in the burglary. As for the second respondent she is a house-wife. Her defence in court was that the clothes she was found in.possession of were bought for her by her husband, the first respo- ndent. If her defence is anything to go by I fail to understand how she could be said to have committed the offence of burglary and stealing. Nor was there any evidence that a.t the time she receiv~d the clothes she was found with she lmew or ought to have lmo·,m that they were stolen property. As the respondents are husband and wife:it would, in my view, be streatching matters too far if this court was to agree with tho primnry court that the 2nd respondent should have inquired from her husband whether ·the clothes he had .."bought for her"weme not stole·n property. There was in this case ample evidence implicating the first respondent with burglary and stealing and I agree that the decision of the district court of acquitting the 1st respondent be set aside and that of the primary court of convicting him be restored. As for the second ·respondent I tend ~ to agree with the district court although for different reasons that she was wrongly convicted. The appeal by the Republic accordingly fnils in so far as the second respondent is concerned. As the first respondent started servi~ t~e sentences on 4. s·. 80 and was released from custody_ on 1o. 11. 80 after he { ....,,, . ' 'had successfully appealed to the district court, it means that he had already served about 3 months of the. total-sentence of three years imprisonment. He will therefore now serve 33 months only the remaining sentence. In the event the appeal by the Republic is partly allowed. All the clothes ·found in the possession of the.respondents to be returned to the complainant. DAR ES SliLVIM. 10.9.02. ===:s===== ♦