19761222 TZHC Tabora

b-AAA-r / IN THE HIGH COURT OF TANZANIA AT TABQRA APPELLATE JURISDICTION (Tabora Registry) (HG) CRIMINAL APPEAL NO. 171 OF 1976 ORIGINAL CRIMINAL CASE NO. 224 OF 1976 OF THE DISTRICT C0unt OF TABORA DISTRICT AT TABORA Before: A. Bahati, Esq., Resident Magistrate HASSANI RAJABU . . . . . . . . . . . . . . . Appellant (Orig. Accused) versus THE REPUBLIC • . . . .. . . .. . . .. . . . Respondent (Orig. Prosecutor) CHARGE: Receiving stolen property c/s 311 (1) of the Penal Codc. JUDGMENT MAPIGANO, J: The appellant was charged with and convicted of receiving with knowledge, contrary to section 311 (1) of the Penal Coda and given three years imprisonment, in terms of the Minimum Sentences Act, 1972. .He was also ordered to pay comepnsation in the sum of Shs.lOO/= being the reasonable price for the legs of the radiogram. He has appealed against the conviction, the sentence and the order for compensation. There was undisputed evidence that the radiogram which the appellant allegedly received was stolen back in March, 1971. The radio gram was discovered, by the owner in March, 1976. It was in the custo.dy•ofa radio repairer, PW.3 Kasola. Of necessity, ..Kasola was questionedas tohow he came by it and he replied that it had been brought to his shop by P1.2 Alfani. This Alfani, in turn, explained that it had been brought to him by the appellant a few days back for repairs and that after he had - examined it he told the appellant that he was not skilful enough - to carryout the needed repairs. He recommended that it should be taken to Kasola whom he considered to be more skilled at the job, and he offered to send it himself. He said he sent.it tè Kasola whenthe appellant agreed to his suggestion. Another witness, •Lf Augustino, who was allegedly present, S supported that story. e . • . • . . . ./2 -2- Subsequently Itasola wrote out a receipt in the name of the appellant. He said that he did so because Alfani had told him that the radiogram belonged to the appellant. Alfani alleged that he delivered the receipt to the appellant and.gain Augustino's evidence bore him out. Later on, according to (YQ c1 Kasola, the m&er of the appellant came to his shop. He said that she was delighted to see that radiogram there, for She had thought that the radiogram was lost. The appellant disputed the whole of the prosecution evidence. He denied that he everpossessed the radiogram and that he was the one who took it to Alfani. he denied receiving any bill in connection ith it. He wanted the court to believe that the evidence against him was manufactured. He brought several witnesses who supported him by saying that they had never seen the radiogram in his house. These witnesses, who were his close relations, also claimed that the appellant and itifani had a quarrel over another radio. They said that the appellant had sent that other radio to klfani last year and that whenever he went to collect it Alfani was putting him off. But this allega- - tion was not put to Alfani. The learned Magistrate appreciated the fact that two of the principal-witnesses for the prosecution, Alfani and Kasola, were brothers...jn_law. But he entertained no doubt that they were credible witnesses. He was of the view that the receipt which Kasola issued put it beyond doubt that their accounts were true. In that respect the learned Magistrate observed that according to the copy of the receipt, that receipt was drawn sometime back, before the complainant traced the radio- gram. He reasoned in these lines "If we have to decide that Kasola wrote,,, this receipt to help his brother -in-law we would have to agree that Alfanj had decided to cover himself up long before the radiogram was discovered by the complainant by making the accused ,the owner of the radiogram. Every one can see that wuch an argument is absurd and has to be dismi- ssed. This case' therefore stands or falls on the receipt which the accused jS saId to have been given by Alfani. • ' . I have no r'ason,' to believe that accused was not given that receipt." With re6pect, I would agree with learned counsel for the appellant that 'it is debetable that it was inconceivable that Alfani, supposing he was himself a guilty receiver, would not conto'rplato covring hi - lf up in tht manner before he subjected the radiogram to public view. And the learned Magistrate certainly misdirected himself on the burden of proof. The question was not whether the court had no reason to believe that appellant was not given tiat receipt. That reads as if the burden was on the appellant to prove beyonI doubt that he 16 (-.3- was not given the receipt. He did not carry such burden. It was upon the prosecution to prove beyond reasonable doubt that Alfani handed over that receipt to the appellant. I am however prepared to accept that the learned Magistrate did not intend the sentence to mean so I am also prepared to say that on the evidence he was entitled to believe the prosecution evidence and act on it. For that was essentially a question of credibility and the learned magistrate was in vantage position to assess the credibility of the witnesses more accurately. But the outcome of the case did not depend solely on credibility and this is what the main ground of this appeal touches. It seems to me that upon the finding of the trial court on the issue of credibility the prosecution must be taken to have proved that the appellant was in possession of the stolen radio- gram in January, 1976, There was no direct evidence that he received it from another man. The evidence as to whether he was a guilty receiver was entirely circumstantial.. It follows that the appellant could only be found guilty of the offence if the circumstances permitted the application of the doctrine c,f recent possession. The doctrine says that if some one is found • in possession of property soon after it has been missed.1 and he fails to give a p1asible explanation of the manner in which he came by it, the court will be justified in inferring that he was either the thief or else a guilty receiver of the property. Now, as we have seen, possession was proved. The next question which arises is whether that possession was recent.. Because as can be perceived from the above passage, the application of the doctrine presupposes that the accused's possession was recent and unless that. is the case, then even a failure to give anexplanaticnarnountstonothing. For the general rule is that an accused's failure to explain damning facts cannot convert insuffjcjét into prima fad . evidence. As has oeen said time anr again, what constitutes recent POssession within the meaning of the doctrine is a question of fact, deperzcing on the circumstances of each particular case. •And the nature of stolen property and whether that thing is likely to pass readily from one person to another, are arong the main factors to be takoi into consideration. It has been argued in this court 'arch, 1971 cunot qualify as recent to January, 1976 and that a radiogram worth Shs.1 ,360/ (according to the charge) is in all probability a common household article which can now be found in every other house in Tabora Town, .1 would agreeo If only for consistency, I have found it - needful to peruse other decisions of this court on this point. ...,..../4 '4 -, —4- In Gaspari Jovin's case (1968) HCD No. 483 and in Jumanne Moharned's case (1970) HCD No.79, the court held that possession of a watch four months after it vanished was not recent. In Katnando Mahingira v R (1967) IICD No. 149 it was decided that possession of a bull four years later was also not recent. And in the case of James Malawi (1969) HCD No.172 the court was of the view that possession of a radio four and half months subsequent to the day of theft was not recent. I would also hold, that the appellantSpossession of the radiogram about five years after it disappeared was not recent. cW ForI am able to see 1 the learned Magistrate dion-directed himself to this question of recent possession0 It is unlikely that he would have convicted the appellant if he had addressed his mind to it, This appeal should succeed, Accordingly, the onviction and the sentence are set aside. Likewise the order for I will conclude by saying a few word.s about the sentence V and the order for compensation. I have failed to unerstand why the learned Magistrate applied the provisions of the 14nimum Sentences Act. It is not that every offence of receiving under Section 311 of the Penal Code is punishable under the Minimum Sentences Act, The Minimum Sentences Act only comes into play where the property was stolen in the course of the commission of one the offences mentioned in items 1 to 6 of the First . Schedule to the Act, or where the property stolen is the property O of a specified authority. There is no shadow of evidence that this was the position in this case. As for the order for compQnsation, there is merit that it was arbitrary. There was no evidence.t.9 suggest, that 100/= was the value of the missing l egs. •. . ' V . ' ' V Pronunced in Court. Appellant in court. Mr. Teemba for the Republic. Tabora, D. P. MAPIGANO, 22nd December, 1976. JUDGE.