19800221 TZHC Dar es Salaam

(74 IN THE HIGH COURT OP TANZANIA AT DAR ES SALAAM JPPELLATE JURISDICTION HIGH COURT CRflVIINAL APPEAL NO. 198 OP 1979 OP TUE DISTRICT COURT OP ILAId DISTRICT AT KIITUKONI Before J. S. Kimenya, Esq., Magistrate, Class District Magistrate EL lAS GOIVIEA.NILA . • . . . . • . • . • . • • . , . . . . . . . . . . . . . . . . . . . . . .4ppel1ant vs TUE REPUBLIC , . . . . , . . . . , . . . . . . . . . . . . . . .. . . . . . . . . . ... . Respondent Charge:- House breaking and stealing c/ss 294 and 265 of the Penal Code. JUDGEMENT MNZAVAS, J.K. - In this ease the accused was charged with and convicted of house-breaking and stealing c/ss 294 and 265 of the Penal Code and sentenced to five and three years respectively - concurrent sentences. Dissatisfied with the conviction and the sentences imposed he is appealing to this court. Mr. Ismail, learned counsel for the appellant vigorously argued that the learned trial magistrate erred in convicting the appellant with the offence of house-breakIng as, it was submitted, there was no evidence in support of the prosecution case that the house in which the radio was had been broken into before the theft. •1 As for the offence of theft, the learned counsel argued that even if it is accepted that the appellant was found In possession of the stolen radio, the trial magistrate had, it was submitted, erred in invo)itg the doctrine of recent'possessiori. It was the learned defence counsel's argument that a period of 3 months from the time the radio was stolen to the time the accused was found in possession of it was too long for the doctrine of recent possession to apply. It was finally argued that there was contradiction in the prosecution witnesses regarding the question as to who was in fact found in possession of the radio. •, L I : 2 : In rebutted Mr 0 Nyangarika for the Republic conceded that there was no evidence in support of the charge of house-breaking. As for the charge of theft it was argued that the evidence of PVI.2 and PW.3 was to the effect that the appellant was found in possession of the radio. The learned state attorney was however of the opinion that because there had passed a period of 3 months from the time of the theft to the time the accused was found in possession of the radio the accused should have been convicted of receiving stolen property c/s.311 as apposed to stealing the radio. With respect to both learned counsels I tend to agree with the argument that there was no evidence whatsoever in support of the charge of house-breaking. All that the servant (PV12), told the court was that when he returned to the house he found the radio missing.. There was not the slightest suggestion, leave alone evidence, that the radio got missing from the house after a breaking into the house. That being the position I totally fail to understand the finding of the lower court regarding the conviction (In the first count) of house-breaking. The conviction is hereby quashed and the sentence of 5 years imprisonment is set aside. As for the offence of theft there was, I agree with the Republic, evidence that the appellant was seen in possession of the radio about three months after it was stolen from the house. The radio was of the make of "ZENITH" and was amply identified by the owner (pw.i), as the very one stolen from her house. As to the question whether this period is so recent as to warrant the court to invoke the doctrine of recent possession and find the accused guilty of stealing the radio I would say that only part of the property- (the radio) stolen from the house was recovered, about three months after the theft. As it was held by this court in the case of ELflCANA s/o M1IJANGA 1/B (1968) H.C.D. 335 - where only small portion of pro- perty is recovered conviction for receiving rather than for theft is the more appropriate. In the present case the evidence tended to show that one, Albert Kuhanga may have been the person who had stolen the radio. Apparently this person was not traced by the police and brought to court either as a witness for the prosecution or as an accused person. The absence of evidence from Albert Kuhanga, and his mira- culous disappearance from the house having concided with the missing of the ra4io, tended to show all the more that the appellant was more of a guilty receiver than the actual thief. In the light of the above facts the conviction CP theft iø hereby set aside and in substitution therefor the appellant is convicted of receiving the radio c/s 311 of the Penal Code. For this offence he is sentenced to 3 years imprisonment, DAR ES SAIiAAM N, S. 21.2.1980 JAJI K9ZI