19760305 TZHC Arusha

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IN THE HIGH COURT OF TANZANIA AT ARUA APiELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO0 436 OF 1974 ORIGINAL CRIMINAL CASE NO0 477 OF 1973 OF THE DI.TRICT COURT OF ARUSHA DISTRICT AT ARUSHA Before J.S. Mnguto (Miss) --------------Resident Magistrete GASPAR DANIEL ----------- APPELLANT (Original Accused) versus THE REPUBLIC . -------- RESPONDENT (Original Prosecutor)

J U D G M E N T Jonathan, J. The appellant was convicted of stealing and sentenced to 2 rearS' imprisonment0 The undisputed facts show that the complainant (POW. 3) on the material night was puttinq up at a lodging house when a thief stole from him a watch and a sum of shs0 3,600/-. He immediately reported to the police and they that same day following a tip-off searched the house of the appellant without finding anything of assistance. However, upon searching the surroundings they found a sum of shs. 500/- in a piece of cloth which was hidden in a heap of rubbish only some five paces from the appellant's house. Later in the day they came across the appellant and arrested him. He had on him shs. 298 and an Oris wrist watch which the complainant identified to be his. There was further evidence that, POW 5 while at his shop on the morning foilcing the theft he was approached there by the appellant who wanted to buy a packet of cigarette. The appellant seems to have taken out a currency note for payment but P0W 5 could not effect the sale because he did not have change0 The appellant then suggested that he might have the packet and pay him later and to persuade him he took out an imprssive bundle of currency notes of shs. 100 and shs.

10. The witness would not he perBuaded and the appellant left without the cigarettes The appellant in his evidence denied the offence, and in regard to the watch he said he had bought it in 1972 from one Juma Au while travelling together on a bus 0 He produced two receipts. One of them, dated May 3rd, 170, appears as having been issuedat Mombasa to one Juma Ally for an "Oris watch with'dte indicator". The other. receipt, dated October 30, 1972 shows an Oris watch as having been sold to the appellant by one JumeAli for shs0 90. The witness he called bore out his account that he bbught a watch from a person travelling on the same bus. The main evidence against the appellant is his possession of the watch only some hours after the complainant hd his money and watch stolen0 The appellant has come out with a solid defence in the form of receipts and a witness who saw him buy the watch from bus passenger who had been robbed of his money and had to sell his watch to pay the fare. It must however have been an unuSual coincidence that that unfortunate passenger had on him the receipt of the watch, while the extra precaution on the part of the appellant in getting that person to write out another receipt as well would seem a little suprfiujus. The opposing claim of the complainant was based on his being familiar with the watch0 The arreating police officer in his evidence was clear that

he recognized it to be his as soon as it was found on the appellant 0000000000 of C and that althou.'. it did a'-t: Lava p.culiar marks oterna1ly it had same mark inside which could bo Seen UOfl opening it up. In his evidence he said the winder was a thisfit atter he had t6mqved the -original winder, and may be note.d that the witness is himself a watdh repairer 0 He also 4 said there was .a ring ;iith 2 dFuraed nail in8ide the watch. The exhibit Watch was dpèned up and the complainant seems to have shown the c.urt the marks of identity ha we.s relying on0 The watch had been in the custody of the police over since it Was seized from the appellant and the cofnplainant had had no oppo: tunitT to open it in order to see the marks he ultimately relied on ar hs evidence is to be seen in this light. I think that in view of such identification the trial court was entitled to reject the defence. For assunrance that the watch was that of the complainant arid tht the appellard- wa him elf the thief, there was the discovery of a cons.der Lie aura of icney hidden in dome rubbish only five paces from the appelianh:'s ause and the large gum of money P.w 5 saw him having not long after tho.theft. Aaccrdingly, I would dismiss the appeal against conviction In vie: of the considerable sum of money, that was stolen I wuld not crns.dr the sentence excessive and the appeal against sentence is also dismissed.- Judgement delivered in open aout this 5th day of March, 1976. P0db JONfTHAN,

J J P P PMJ/Kimathi