19770623 TZHC Dodoma 1

J

IN THE HIGH COURT OF TANZANIA V,/7 ', C /-Z,~ AT DOD'3MA AP3L1A1, 'E J[JRISDICTION HIGH COURT CRIMINAL A PPEAL NO. 90 OF 1977 CF Misc. Crim. App. 12 of 1976 ORIGINAl CRIMINAL CASE NO. 258 OF 1975 OF THE DITRTCT COURT OF IRIN('A DI3TRICT AT IRIUGA Before H. I. Mumbiri . . . . . . . . . . . . District Magistrate IGNAS Sb MWINGA ...............Apel1ant (Original Accused) Versus THE RHPUBIIC. , , . .. ..... .. . . . .Respondent (Original Pros ecutoi) Charge: Stealing by Servant c/s 271 and 265 of the Penal Code.

J U D G M E N T The appelisnt who was initially charged with stea1in c/s 265 of the Penal Code was found guilty nd convicted under section 312 of the Penal Code -end s.3ntencsd to 3 years imprisonment unde:r the Minimum Sentences Act. The appeal is against both the conviction and the sentence. The record is ouiet -L as to whether the cozviction was under section 312(1) (a) or section 312 (l)(b) of -'-1 ° nal -' Code. The conviction could not poesibly be under (a) because there was no evidence to indicate •th.t a?e1lant had been detained in te.rns of sctjon 24 of the Criminal Procedure Code. It could not be one under (b) eith:r bc-cause there wa; no evidence to s.ow that appellant was found by a police olfic. of or above The rank of Inspector in poseession of or having control over the alleged articles. Mr. Mchora counsel for the Republic - informed this - Court that the Republic did not support the êonviction under section 312 of the Penal Code. He contended, however, that there was ample evidence warranting a conviction of theft as charged. On the evidence on record there can be no doubt at all that i± was the apueflant who had deposited the pick—up heads at' P.W.6 1 s hop. This is clear from the evidence of P.W.l, , 6 and 8, all of whom the trial court found to be truthful. But I note that PW8 is recorded as having mentioned PW5 as the person who was initially arrested with

him when th two were allegedly found bargaining over the price othe pich—up heads. On thorough p-.rusal of the record I am satisfied, that was merely a mistake in recording on the part of the trial magistrate. The trial magistrate must have intended PW6 as the testimony of PW1,5 - and 6 seem to indicate. - 2 - C .- • Although the pick—up heads were found in th shop of P146 yet - on the evidence—appellant retained control over the artic1es. Appellant was therefore found in possession of the stolen items. And because he gave no explanation as to how the same cacao into his posscsion, the presumption in law would be that was either the actual thief or a 1... - guilty receiver. Bu; the circumstances surroundin the tht were such that th thief had a k:y to the office where the pick—p heeds were kept. And on the evidcnce only 1st accused who wa. acquitted and P.W.4 had keys to the door. The presumption of the appelJ.ent being th€ actual thief would appear therefo. rebutted by the circumstances. Appellant was undoubtedly a more guilty receiver. As such he ought to have bLen convicted under section 311(1) instead of section 312 of the Penal Code. In view of : - hc above I would set aside a conviction unde:, section 312 and substitute therefor that of receiving c/s 311(1) of the Penal Code. I am doing' so advisedly, for as already seen, appellant was charged with theft. So that the

conviction under sction 311(1) of the Penal Code is, in actual fact, in substitution for that of theft and not for on "4 under section 312 of the Penal Code. The property stolen and receIved by th. appeflant belonged to a specified authority the IrinGa llegional Trading Company. Accordingly the offence committed by the appeflant was a sceduLd one. The offence carries a minimum sentence of 3 years In view of this the 3 ycar sentence of imprisonment as imposed on th appellant remains undist'ur: Delivered in court at Dodoma this 23rd day of June, 19770, M. J. M14AKIBETE

JUD GB