19710709 TZCA Dar es Salaam2

IN rfl flGfl COUTtP OP TANZANIA AT DAT E$ SATAUT Criminal Appeal Nc. 2T6 of 1 971 Orin1 Orrnna1 Case o. 108 of 1970 of the District Court of Mbinga Ditrct at iTh.thga. 3fore: Z obatd, Vsqo t District Magistrate, EWAD3ORN MBAYA AP1LLAWt versue THE R1*UI3L1C chare: Thrg1ary and etealing o/e 294(1) and 265 of the Pna1 Codø.

JUDOMISTIT 0N!IUK J. The appellant was convicted of entering a dwelling hoae with intnt to commit a felony oontrary to section 295 and., of Stealing contrary to eection 265 of the Penei (Thde. Re WG sentenced to twelve months' Imprisonment on the first coint and to .eiz months' imprisonment on the cond count both sentences to run concurrently. Re has appealed against the conviction and aentene, The important issue in this care is the identity of the things stolen. The facts were that a bed sheet, blanket, piiiw with its case were stolen from the cc laiiant'a gttest house. They were removed from a bed lying near an open wIndow in one of the rooms of the guest house. They were found in appellant's room two dety0l after the theft. The complainant identified tbeae items by black threads which she etiobed to them. The appellant claimed the items as his and pointed to the same threads as his distinguishing ma*e. The leamed as±rate looked to other orcumetanoes in the case to determino ownership. All the clothing items in the guest house bcre the same marks and the complainant stated, that she was compelled. to mark her clothing items as a result of a prevcus eper1once rben a case of theft of some of her beddinge was dismissed because rjhe was unable to W that such items of comaon use be'onged to her. The appellant, on the other hand, claime4 that he bought the items in 1968 when

he was living at Scrigea. Re moved to Tundura and left them with one Vjct Luwenga (D.W.2). This was in November 1968.. D.W.2 gave evdoer ano stated that be kept thees items from o'uemter 1968 to ovembor 1970 and that during this period he neither saw the appellant not knew of his whereabouts, He travelled to Ubnra In November 1970 and by sheer aecident met the appellant at a bus stand and handed the items over to Mm. The learned agatrate disbelieved this story as unworthy of belIef and held that it was not aueh as to raise any doubt in his mind. The fact that 1J.2 never, heard from the appellant for two years and that when he, D.W.2, left for Mbinga, he had not the s1ghteat idea of meeting the appellant there, led the Maietrate to disbelieve the appellant's story. it cannot he said that the learned Magistrate was not justified In his conclusions on the evidence. Once the learned Magstrate was satisfied that the items belonged to the complainant, and the evidence amply justified this finding of fact, the inference was irresistible that the appellant was either the lhief or the receiver. It was held. in R. vt 1VANS (1847) 2 Cox O.. 270 that where a thIns alleged stolen Was traced o. , . * 2 to an aoousa1 paon and he g- vea an.40count , of his esion whtóh. i2 inoonslatett with tho Qaae of the. rosec,.tion, as for exampI, that he bou1it aM had po e s ' esion.of an iIerti1 thing before the 1ó, then t1the Cou1 is øatiafied of the Identity of e•th.i it be1one to ti oomp1anant, It on eonvict the aoosod of stealing. I dirntaa the apea1 agait oovictIon. The aenteoes paeeee were not eoesaive aM were to,ran coLe.nt1y, P9a1 aains•t 00 iVt±on. and entooe 1.0 di paissad w Deliver$ iU OUZ1 a Da e 8alaam th 9th day 1971. H. 1