19721002 TZHC Mwanza

4.L4 L/ IN THE HIGh COURT 01 TITZAUIA at I'iwanza HIGH COURT CRIFINJJ APPEAL 110. 317 OF 1972 ORIGINAl1 CRII11NA11 CASE NO. 89 OF 1972 OF THE DISTRICT COURT OF BUROII3A DISTRICT AT BUXOBA Before R.J,L. RUHUREIEA Esci., ..... Resident Nagistrate 4 EIARJI1 i.AJ1 SAVJIJOG-IN.. ........,,...... ...... ...Appe1lait versus THE REFUI3LIC . • ........., . ........- . . . . . . . . . . . . .Responcient Charges Receiving stolen property contrary to section 311 (1) of the Penal Code. JUDGEI'iENT EL—KINDY, J, The appellant, HARJIWAN SAVJI JOGIN, was charged with and convicted of receiving stolen property contrary to Section 311 (1) of the Penal Code Cap 16. He was sentenced to imprisonment for' 5 months. He appealed against his sentence. The evidence, which the trial court accepted, shored that one-day in December, 1971, the house of James Kata1aro (wi), was broken into during his absence, and a IIIVICO radio, which he had bought for Shs. 3801=, was stolen therefrom. The ape11ant operated a radio repair shop. On the 4th of February, 1972, James Katabaro went to the shop of the appellant. As he looked around in the shop, he saw his stolen radio in the shop; He reported to police constable IS—RENa (FF1) who went to the said shop and seized the said radio. The said Natabaro properly identified the said radio as his stolen property. To the police officer and in his defence, the appellant admitted that he bought it at Shs. 70/=. He also showed a document allegedly as having been made by one Joirn Nichael substantiating the alleged sale. The learned trial magistrate held that the radio was cold at an incredibly law price, and that the appellant had made no inquiries whatsoever from the person who sold it to him to satisfy hims elf that it was his radio. Ii the circumstnces, he found that the appellant Imew or must have known that the radio he was purchasing at such price, was a stolen one or was unlawfully • obtained. The appellant did not seek to challenge the conviction, I think on the evidence the conviction is quite sound. However, the appellant said that the sentence was too severe for a first offender or that he should be permitted to serve his sentence extramurally having regard to the condition of his old mother. He was a first offender. His age is 26 years. He completed schooling in 1964. He was a radio repairer by profession. That he had a clean record for the last 7 years. He is looking after his brothers, and that his mother was very old. He was the bread winner of the family. The probation officer who examined him highly recommended the appellant. Unfortunatelynoneof these points were raised before the learned trial magistrate although the appellant was defended. ..• -2- As the learned State Attorney (Mr. I'Iassawe) so rightly pointed out, had these fats been hrouht out before the learned trial magistrate it was most likely that a sentence other than the one impad. would have been impo.ed.. Jiaving regard to all thee matters, I reduce thd sentence of the ppellant so as to result in his immediate release, 1 do not consider, having regard to the circistances of this- case, that any useful purpose would have been served by placimg the appellant on probation or giving hif a suspended sentence. The ordei was accordingly iiade. Delivered in Court on the 2nd day of October, 1972. / ./\(.EL—(INDY) JIJDG-E Appellant - absent LIr. Meela Senio± State Attorney for Republic