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IN THE HIGH COURT OF TANZANIA J AT DODOPIA APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO0 258 OF 1974 ORIGINAL CRIMINAL CASE NO0 35 OF 1974 OF THE DISTRICT COURT OF NJOI"IBE DISTRICT AT NJOMBE Before P. Msiska 0 0 0 0 0 0 0 0 0 0 .Resident Magistrate HUSEN s/o SANGAOO 0 0 0 0 0 0 0 0 0 0 o bAppellant (Original Accusedrl Versus THE REPUBLIC. 0 0 0 .Respondnt (Original Prosedutor) charge: Burqlarv and stealing c/ss 294(1) and 265 of the Penal Code 0 J U D G M E N T MNZAVAS J. The appellant Hussein Sanga was charged with and convicted of burglary and stealing c/ss 294(1) and 25 of the Penal Code and senter:ed to three and one year'ively concurrent sentence He is appealing against convictions and sentence. The appellant was found tn possession of irticles stolen from the house of the complainant (PW1) three months after the house was burgled0 From the evidence there, could be no doubt that the complainant amply identified the articles found in possession of the appellant as her property stolen after the burglary0 This appeal was admitted only for argument as t. .hcther the period of 3 months from the time of the burglary to the time the accused wa. found in possession of part of the stolen property so recent 5s to entitle the court to invoke the doctrine of recent possession and find the accused guilty not only of theft but also of burglary0 Mr0 Mbilinyi for the Republic/Respondent was of the view that the property found in possessidn of the accused, a watch and a wallet, were common property thatwere easily transferable from one person to another and he was of the opinion that the period of three months was too long to entitle the court to come to the conclusion that the accused was the actual thief • The learned counsel argued that the accused should have been found guilty of receiving stolen property knowing it to have been stolen 0 As to the conviction of burglary it was argued that the conviction was under the Minimum Sentences Act and that the sentence of 3 years imposed for burglary was proper for the offence of receiving. I agree with the learned state attorney that under the Minimum Sentences Act, 1972 an accused will be sentenced under the 4inimum Sentences Act for the offence of receiving stolen property if he knew or if he should have known that the property had been feloniously obtained He need not have /comrnit.- known that the goods were obtained in the courGe of / scheduled offence0 ting a That this is the law is clear from the decisions in 'SAID MEKE V R (1967) H.C.D. 37 9 R V MOHANED NAWEKA (1964) E.A. 353 Also see the recent decision of this court in ESTER d/o ZACAIA V R (1972) H.C.D. 166. But in all the above-quoLted cases there 'as evidence that the accused persons knew or ought to have known at the time they received the property that it was stolen property although they may not have known that the property was stolen during the commission of a scheduled offence0 0 0 0 0 0 0 0 /2 - 2 - In the present case therefore the vital question the court had to decide was whether the accused knew or ought to have known that the watch and the wallet he received were stolen property at the time he was receiving them. In his evidence he told the court that he bought the wallet at a Saba saba show at Dar es Salaam in 1972 As the wrist—watch he told the court that he bought it at Nagonieni ii .1. :r es Salaam and paid shs,. 55/= for it. He gave similar story in connection with a towel he was also found in possession of0 Apparently his evidence was consistent to what he had told the detective sergeant (Pw2) who arrested him. In his judgement the learned resident magistrate said inter alia: "The items are those stolen from the house of Gay d/o Edward. Only after a period of three months thcy were found with the accused. The accused does not state that he received them from someone else. He merely staf t1i.+ he bought them.r a contention which the court has discounted". From the above it is cmply clear that the learned resident magistrate convicted the accused not because he failed to give a reasonable expla-- nation as to how he came to be in possession of the articles but because he did not believe his explanation that he had bought the articlos 0 This was, in my view a misdirection by the trial magistrate on the question of burden of proof. As it was held by this court in ABDUL SIO SALUNU V R (1967) H0C,D. 107 - "An accuseds explanation of his possession of stolen goods need not be "reasonable and convincing.' It is enough if his explanation could reasonably be true..." Taking into account the facts of the case 1 accuseds explanation as to how he came to be in possession of the articles though not convincing could in my view be reasonably true 0 Having digressed from the main issue I now return to the question whether the accused knew or ought to have known that the articles he bought were stolen property. If accuseds explation is to be believed and in my view his explanation could1 reasonably have been true, he bought the articles in broad day light. There was no suggestion leave alone evidence, that he bought the articles under circumstances which would have aroused suspicion to the buyer fhai 1hey had bean feloniously obtained. This being the position the accused cannot be presumed to have known or that he ought to have known that the articles which are freely transferable were stolen property. And, taking into account the decision of this court in GASPARE S/OJOVIN yR (1968) HOCO D. 483, where the property stolen was a watch it would appear that the period of over three months in the present case is too long a period to be considered "recent" in order to raise the presumption that the accused was the thief or the guilty receiver. As the doctrine of recent possession did not in this case apply I need not go into the question whether the accused was rightly convicted under the Minimum Sentences Act as that question depended on the question whether the accused could, on the evidence be found guilty of receiving the property knowing or having reason to believe that it was stolen property, This question has been answered in the negative. For the above reasons it would, in my view, be unsafe to support the convictions. The convictions are accordingly quashed and the sentences are hereby set aside. The accused should be released from custody forthwith unless he ) is otherwise lawfully hpld, /