19940930 TZHC Dodoma

JN THE HIGH counT 0:E' TANZANIA A,T_D_f_DOMA APPELLA.TE JURISDICTION HIGH COURT CRII1IJ:1AL APPEAL NO. ~3 OF 1994 ORIGINAL CRTI![[lJAL C.ASE NO. 189 0}? 1992 OF 'l'!IB DISTRICT COURT OF D0:001V[A_ DISTRICT AT DODOMA BEFORE E. ANBNGISYE Esq., DISTRICT MAGISTRATE GiillJ.IEL JOEL @ l1ALIG1\J."'\JA • • • o .. APPELLi1.NT versus THE TIEPUJ3LIC • • • • • • • • • • TIESPONDTh1T The appellant was together with others charged with store breaking and stealing it being alleged that on 4/7/1992 they broke into a store at Msalato Girls Second~J:'Y School where they stole items worth shs. 128p817/= the 9ro~erty of the said school. After a full trial all of them were acquitted of the charge facing them save that the learned District Hagistrs..to was satisfied that the available evidence proved the offence of Beine found in possession of properties suspected to have been stolen against the appellant and so he convicted him and sentenced him to serve a five year term of imprisonment. This is an appe<'-1 against both that conviction and sentence. The lower Court foi.md as a fact that on the said date the said store was broken into and n. nurnber of i terns stolen therefromo On 9.7.92 w.6 Insp. Lyimo was on duty when an informer approached am told him that in the appellant's living room there were a number of items suspected to have been stolen from the said school. Acti..i,g on that information

he prepared the necessary search warrant and together with other policemen went to the said room. In the house wherein thG room "\·:'.18 9 there were otho:r -9coplc/teni1.n+,s i.e,. PH.5 ..1\rchard Kisanga n.nd Pill.) ::._·.:..ij8- ~1z~:.1o..c11;.,. J.i. J'he s-:::a:rc~ '.-TE:.3 conducted . . in the appellant 1 s 1.-ooH i...--i tl:::, :;__:,rc..----w1ce :::.lso o:" -'::1...:3G t·.;o ,ri tno:::-scc. i In the seaxch th::ee belsheets ,_d th ;J.c,:r:-~:::i 11 :-'IGSSii wcr0 L:~)oundedJ A fourth bedsheet with -.::olm:i.r :.:-e:.;oDi.,linc tho shhool ·.miforrn. was oleo found there. Tho bec.::l1.eets. n.n,::. 1,.:,) oti·,cr itG1:1o retrieved elsewhere ,.,., +11n property of the school. - 2 "l"he thrust of the appellant'-s defence, which he repeated before this Court., was that he had bought the saic1 bedsheets from the second accused :in the trial. It was common ground at the trial that the school store was broken into and a nUI!lber of items stolen; and further that three bed.sheets, among other itorns, were retrieved from the appellant 1 s room and eventually idontified to be properly of the said school. In my judgment, the appellru1.t's defence that the bedsheets were sold to him by the then 2n£i accused was rightly rejected. In his own evidence the appellant expressed surprise as to wby tho 2n,\1_ accused denied before the police such sale suggesting in effect that what this

appellant was saying c;.1ay not necessarily have been true. What is more, when he was cross-exar:uned by the said 2n£1 accusGd the appellant clea.rly said thc,t ho did not know hir:J. D.ncl coulcl not prove that he bought the bod.sheets fron hirJ. It is significant to note too that the appellant was found with the iteos just five days aft8r the incident so the doctrine of recent possession could as well apply against hio. In the light of tho evidence on record there is no doubt that the bedsheets were id.ontifiocl.. to be property stolen fron tho school. If so, then the conviction under Section 312 ~1) (b) of · in view of the principle lai down in The Penal Code would not li1, the Case of &plmri v R 19 7 E A 466 that:lL 11 a conviction uncler section 312 Penal Code will not lie whe:re the property the subject oatter of tho chc1rgc is identified D.nc1 esto.:'.Jlished in evidence as hrwi..'1:S been stclen. 11 :Mr. Nyabiri learned State Attorney agrees with all the above conclusions and duly infornod the Court thc,t the Republic supports conviction to the above extent.· In the end result the appo,',l fails end is dis::tlssed save that tho appellant ts conv:7..::::ti. .· · .; .. · ' , ,·-,·, 0f prop::-rty suspeotod to have been stolen or unl2-w'fully obtai;1ef, is qu.c'l.Shed anc1 in its place is substituted a conviction :1s ch[.t:r''.:,;O(~ and he is sentened to the sane tern of

five years i,...,,.; S"'"'7'"".'lt :~:.:~·.1C>sc :'.. o~:.:::::'...:.or i..TJ. line with the provisions of section 5 ((1) of Tl,,_c ~fu_i::".'.t;,..: S.mt~nces Act •., · , 1 of 1972, (J.E. :MSOJi'J:i'E) •••••• /3 I .,. . !1,• '. • 1 . : .:. .- ··-----·-: ··-·=~.. _ .. . . ~ 3 :.- th ' Delivered in CQao.bers this 30 - day of SepteQber, 1994 in the prasenoo of Mt-. Y.tasaju State Attorney ancl the appellant.· rlJ< . (J .n. IvJS~) ~ 30/9/1.994 • Right of appeal explained. (J oEe MS0FFE) J1JDGE ~~