19770427 TZHC Arusha

VIA IN THE HIGH COURT CF TANz: .k AT ARUSHA APPELLATE JURISDICTION IN THE DISTRICT REGISTRY AT ARUS},-IA HIGH COURT CRIMINAL APPEAL NO0 103 OF 1976 ORIGINAL CRIMINiL CASE NO0 110 OF 1975 OF THE DISTRICT COURT OF HANANG DITRICT AT BABATI Before J.N. NINKAZA ESq0, ------------District Magistrate FANTE GWAHARI ------------------------------------ APP ELLANT (Original Accused) versus THE REPUBLIC -----------------------------------RESPONDENT .'. (Original Prosecutor) JUDGMENT Jonathan, J. The appellant was convicted of receiving stolen property c/s 311 (1) of the Procedure Code and given the minimum sentence. There is no dispute that the house of P.W 3 was broken into and many things stolen, including a mattress0 He reported the incident to the police and they acting on a tip-off a few day 1atr arrested one Ramadhani. According to P.W 1 and POW 2, the arresting police officers Ramadhani admitted responsibility for the incident and mentioned two people as being the ones he had sold the things. One of them was the appellant to whom Ramadhani said he ha -1 sold the mattress. For no apparent reason howevr Ramadhani. was not called. The policemen then 11 moved to the house of the appelJ.ant. He was present and admitted buying a mattress for shs. 20/-. Asked to produce it he is said to t have taken them to some hill. There, hidden in a cave, was a foam mattress enclosed in a gunny bag. it answered to the description of . the mattress as had been given by the complainant, who later duly identified it to be the o te. The appellant in his evidence said he had bought the mattress from a shop in Arusha called "Kilimanjaro Sundries for the sum of shs. 125/- He produced a receipt to support this. Under cross- examination he denied to have taken the poJ.ice to any cave; they found the mattress at his house. There are conflicting claims to the mattress. The appellant has produced a teceipt against which he claims to have bought it. Similarly, the complainant has produced a receipt issued by an Arusha firm called Rhemtuila Pirbhai Limited. The witness, unlike the appellant, gave pecific marks of identification, including a ' hole in the cover of the mattress, which he said was caused by a burning cigarette, it is to be noted that at no stage in the /have prosecution evidence does the appellant appear to/suggested that the mattress was other than that of the complainant, and he cannot . :1 . complain thit the claim he later made to it was dismissed if there was however any doubt that was removed by the fact of hiding.the . T mattress away which he clearly seems to have done. That was inconsistent with the claim that it was his property. 1 agree with '1 the Republic, therefore, that he was rightly convicted. Accordingly, the appeal is disniissed in its entirety. Delivered in open court this 27th day of April, 1977. P 0M. JONATHAN, J U D G E PMJ/GKK