19770623 TZHC Dodoma

J IN 1'HE HIGH COURT OF TANZANIA AT DO DOM!:.. . J:..PP:aLlJ~•J:E JURISDIC 1rION HIGH COURT CRIMINAL .A PPJ!JAL NO. 90 OF 1977 CF Misc. Crim. App. 12 of 1976 ORIG-IITLL CRilvIINAL CASE NO. 258 OF 1975 OF THE DI:JTR~·cT COl"RT OF IRINr.:~ DI3T;1ICT AT IRIFGA Before H. I. Mumbiri •• . . . . . . . . • District Magistra·c.: IGNAS s/o }NINGA .. . • O•. o • o o • o • _ti.pJ.~•ella11t o (Original Accused) Versus TJIB RJi1PUBLIC. • • , • • . . • . . . • Respondent (Original Prosecutor) Charge: Stea,lj_ng by Servant c/ s 271 and 265 of the Penal Code.

JUDGMENT The appellant who was initially charged with stealing c/s 265 of the Penc:i,l Cod0 Wf,.s found guil·cy a~1rl cor.victed unde1" section 312 of the Penal Code nn<i S8n-~enc8d to 3 years imprisonment und8:r the Minimum Sentences Act. The appeal is ac;c...inst both ·i:;he conviction and the sentence. The record is quiet as to whe·ch1::;r the c:o::wic·sion was ·. under section 312(1) (a) or section 312 (1) (b) of JGho Pt:mal Code. The co:nvj_ction could not pocsibly be m1der (a) because there was no evid ?-nee to indicate tl18 t B.}J)ell2:nt had been detained in t(irns of D •:· ct ion 24 of the· Crimin...al Procedure Code. It co1::.ld not 1Je one undf,r (b) eitlLr bccG,use there wau no evidcmce to s>oi,r ·cb.at appellant WG,8 f01.111tl by a police off::..c. :.· of or above ·'.;he ra11k of Inspector in posnessim1 of or havins control over th8 ~i,lleged . articles. Mr. Mchora - counsel for the Republic - informed this Court that the R0pv.blic did not support th8 convic·cion under section 312 of ·:·he Penal Code. He contended, however, th:::i,t there was ample:: :-.-,vidence warranting a convic-i;j_on of theft as charged. On the ~}vicL:mce on record there can bf.:: no doubt at all that it. :was the:: ~.pl)E:llant w\o had deposited thr: pick-up heads at P .W .6' s shop. 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 th;.;;,t PW8 is recordBd as having mentioned PW5 a.s the person who was ini•i;ially a.rr8sted with him wh•m th(. ti;rn W8re allegedly fo1.,1.nd bargaining over the price O)~ ·';he pic!::-up heads. On thoro1..1. 0 l1 r ..,:rusal of the record I am sei,tisfied, that W8S merely a rai;:;·cake in recording on the part of the trial magistrate. The trial magistrate mL.rn·i; ;J_c3,ve intended - PW6 as the ·cestimony of PWl,5 and 6 S6em to indica·ce. 2 ..... •· Al though the pick-up heads were found. :L;:1 ·';h,;; shop of J?W6 yet .... on th::· evidence-app0llant retair..:,d control over the articles. App8llant was therefo:r·e found in possession of the stolen i terns. And bocause ho gave no 0xpl3,nati on as to how the sane ca:c,10 into his poss6csion, tho preS1~J11ption in law would bo th2,·:: l:J.,, 1,ras aith,:1r the actual thi<?;f or a L . : - guilty receiver. But th& circumrJtanc,~s surroundinc ·'.;he thoi't w0re such thaJ~ the: thiGf h;:~.d a k, y to '.·he office Hh:..ire tb.0 pick-J.j_) 0 h:>ad,s w1.:1rf3 kr~pt. And on tho '°;;Vidcnce only 1st accus·3d who wa.'.: acquitted and P .W .4 had keys to tlrn door. I'ho pr::sumption of thci appcdJc1.nt bcinc th8 actual thi0f would app~ar ther0fOJ'. ,, . rebutt0d by ·:;h.'3 circurr.istances. A_ppell8.11t wc.s undoubtedly a mere guilty receiver. As such he ougb.t to have b,.-.-en convict 12d under sec ti on 311 (1) ins t.ead. of

sc,ction 312 of ·i;he Penal Code. In vim·T of >hs abova I would se:it asid~:: a conviction u.nd;.;: section 312 and substitute therefor th2,t of receiving c/s 311(1) of -i;h8 P:inal Code. I am doins so advisedly, for as already s::::cn, appt=;llant was chHrged wi tJ1 theft. So that th-3 conviction und,:.:r s:ction 311(1) of the Penal Code is 9 in actual fact 9 in substitution for that of theft and not for 011-· •, • ..1 undar section 312 of tl1e Penal Code. The prop':,rty stolen and receiv,sd by tl'L·. o.ppsllant belonged to a spacified authority --· the IrinLa :a.egional Trading Company.. Accordingly the offenc·a committed by the appall ant was a scedul<Sd one. The offencs carri0s a minimtu'.l sentence of 3 y-:~ars. In visw of -this the 3 vcG.r sentence of imprisonnu::n·c as imposed on tht~ a1Jp,::.;llant ~norJ.D,ins undistur-.:-: .- Delivered in court at Dodoma this 23rd day of June, 1977., M. J. MWAKIBETE JUDGE.