19741223 TZHC Dodoma

544Ylfl IN THE HIGH COURT OF TANZANIA 91 AT DODOMA APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO.213 OF 173 ORIGINAL CRIMINALCASE NO.255 OF 1973 OF THE DISTRICT COURT OF IRINGADISTRICT AT IRINGA Before A. Bahati Esq.. 000 0 00 0 00......0Resident Magistrate I . JAMES s/o KAYOVELAO 00000000 0000000000000000000000000 ..Appellant (Original Ac.cuse) Versus THE REPUBLIC.000e...omoeoc00000aoaoenrooe000....00.,00000.Respondent (Original Prosec'tor) Charge: Burglary cd Stealing c/ss 294(1) and 265 of Pena. Code0 J U D G M E N T MWESIUMO AG. J0 Befor' Iringa District court James s/o Kayovela and his purported wife Jestin d/o Kajinga were jointly charged with two coun' first, burglary contrary to section 294(1) and secondly, stealing contrary to section 265 of the Penal Code but both pleaded not guilty to each count. However, on the weight of evidence, after a full trial the learned ResIdent Magistrate convicted the 1st accused of both counts and convicted the 2nd accursed of receiving stolen property cohtrary to section 311(1) of the Penal Code after having acquitted her on the 1st count for want of suff:.cient evidence linking her with the alleged burglary. Upon those convictio the 1st accused was sentenced to 5 years' imprisonment ô. the 1st count and twelve months' imprisonment and ordered the two sentences to run concurrently and against the 2nd c' accused he imposed a ntence of three years' imprisonment. It is only the accused who has appealed against both convictions and sentences but the 2nd accused has not arid for the purpose of implicity the 1st accused shall hereinafter be referred to as the appellant. Without wasting much time the appeal against convictions clearly is without merit at all and for the 2nd person she would equally have wasted her time if she appealed against both conviction and sentence or against either of them for her covictipn is well founded on the evidence adduced before the trial court and the sentencc. is to my mind also appropriate to the offence but it requires confirm&ton which is accordingly confirmed. Against the appellant James s/o Kayoiela it was very well established that he was found in possession of articles which had been stolen on 8th of Februry 1973 from the house of the complainant one Wachawaseme d/o Kipesi'.e after the window of the said house had been broken into at night. Admittedly prior to the sighting by the complainant of some of -. .- i11 - ___________ 40 ,. . . . . . . 72 the stolen articles some clothes which she identified to be hers had passed through hands of several people but the chain of evidence by the Prosecution witnesses irresistably points at the appellant as the person who first handled those clothes soon after the said burglary. Before the court below and this court the appellant has not given satis- factory explanation as to how ha came by those articles. Like the judge who admitted this appeal and the state Attorney who appeared for the Republic in this appeal I. am satisfied the appellant's convictions on both coutits are sustainable because after carefully analysing the evidence the learned Resident Magistrate who tried the case properly ihvOked the docfrmne of recent possession 0 From the time the house in question was b.'oken into and the listed articles stoen therefrom to the time the appellant was foi.nd in possession of some of them only a short period of just under three months had elapsed. That period, in my view s and in the circumstances of the case was short enough for the doctrine of recent possessioh to be unshakertly applied. The appellant's bare denial of the commission of the offences and his empty insistence of ownership of the articles in question was rightly rejected by the trial Magistrates and to me I see his stand a an afterthought calculated t0exculpate himself and mislead the courts of law but surely in the face of the rulminating evidence as propounded by the court below his convictions cannot be f1ted by this court. However as regards the alleged stolen articles there is one item which has concerned the mind of the judge who admitted the appeal and the state Attorney who argued in support of these convictions and that itemis the sum of shs. 3,000/= which the complainant claimed to have had in her house for safe custody on behalf of her employer one Thomas for whom she informedly used to brew local liquor. This amount is fairly big and one would have expected the prosecution to addu& extra evidence either by proving that the appellant was found with it along with the other articles or they could at least summon Thomas to corroborate Wachawaseffles evidence to the effect that in fact he had handed over the money in question for safe custody while he was away from Iringa on safari. For untold reasons the prosecution have failed to do either of these alternatives though seemingly it was much easitii. to pursue the latter suggested course. They merely relied on the evidence of Wachawaseme d/o Kipesile 1 which evidence though accepted by the trial. Magistrate as truthful, still in my view leaves some doubt as to wether the money was actually one of the items stolen during that night and whether really that money was in that house. In absence of corroborative evidence which was either delibarately or negligently not pursued by the Prosecution or at the court's own motion on that aspect of the case I fe1 inclined agreeing with the learned state Attorney that that omision might have occasioned failure of justice. Consequently the appellant is entitled to the benefit of doubt with the result that the lower court's finding to the effect that the stolen articles included the sum of shs. 3,000/= is set aside0 Thus the appellant is held as having stolen the remaining items listed in the charge sheet. One might think that this exercise is purely accademic for the comvictions remain unaffected but in actual fact it is not so for the removal of this sum from the list of the stolen articles will leave the remaining articles at a valu less than shs, 5,3367= which is quoted in the charge sheet and this would in turn have the effect of entitlement of decuction of sentence imposed against the appellant for if the value of the articles proved to have been stolen becolDea less than 5,000/= shillings then it ceases to be mandatory for this court to uphold the sentence of 5 years' imprisonment awarded for the 1st count under the I. • • r4 0• 000 .13 provisions of section 5 (d) of the Minimum Sentences Act No.I of 1972 While upholding the conviction as 1 have amply demonstrated herein above I would, however, feel inclined to reduce the sentence accord- ingly. I thus set aside the sehtence of 5 veers imposed against the appellant on the .1st count and substitute thereof a sentence of three years' imprisonment.on that count and sentence oh the 2nd count is left undisturbed. The ; sentences shall run cohurrently. Consequent upon the decrease of the value of the articles proved to have been stolen the compesation order is also varied accordingly. In other words the appellant and the other con'ict who hs not appealea must corpehsate the complainant a sum of money commensurabe to the stolen articles thich have hot been recovered 0 :e for the variations as indicated above this appeal is dismissed, Delivered in court this 23rd day of December, 1974. Of! E.A0 MWESIUMO AG. JUJGE For Republic: Mr. W.X. Mbillriyi, SeA. ppe1lant: Absent,