19771128 TZHC Mwanza 1

IN THE HIGH COURT OF TANZANIA AT VIIIANIZA APPELLATE JT)RI DICTION HIGH COURT CRIMINAL. APPEAL NO. 247 OF 177 ORIGINAL. CRIMINAL CSE 140. 132 OF 197.7 OF THE DISTRICT COUiI UP GEITA DISTRICr AT GEITA • Before P.. N0_BERUA, Es. 2 SENIOR MIGISTRATE . •c JOHANES KATO00000co.o.0000,,o,,,.,.00,,o,o,,00,00,000000000000000A?PE,j'J\JT (OriginrUi Accused) versus S THEREPUBLIC. , a a . so -,o • a a a a 0 0 ,o a a a a a Ga 00 aa 0 0 0 0 00 £ZE SP OiJDENT a a a a a a a a a (Oriqicinl ros ctor) CHRGE Being in possession of property reasonably suspected to have been stolen or otherwise unlawfully acquired c/s 312 (1)(a) of • the Penal Code. JUDGMENT -t MFALILA, J. The appellant Johanes Kato was convicted of the offence of Being found in possession of property reasonably suspected to haVe bean stolen or otherwise unlawfully acquired c/t 312 (1) (a) of the Penal Code and was sentenced to 9 months imprisonment0 The evidence wan led showing that when the apeellant was searched by PC Chacha outside Gedeco offices at Kalangelala Geita District he was found with a watch worth between Shs, 600/= and 3hs, 900/=. The appellant's explanation as to his possession of this watch was rejected0 I think on the e\ri-iuce the district Court rightly rej acted this explanation which in my vie-i was absurd to say the least. I also agree that the circumstances in which the watch was found with the appellant clearly show that he had either stolen it or otherwise unlawfully acquirit. But there are one or two factors which affect the correctness of the appellant's conviction to some degrees First of all his age. On the charge sheet the appellant j was shown to be 15 years old but durinc the trial the Magistrate treated him as an adult right from the beginning. He did not comply with the requirements of both sections 3 and 16 regarding procedure and specific finding of age. All that happened at the end of the trial was that the prosecutor on his own initiative produced an medical certificate on which the appellant is shown to be clinically 16 years old, whatever that means. To all practical purposes this was wrong. The Magistrate should remember when dealing with young offenders alays to comply with the provisions of section 3 regarding procedure and section 16 regarding findings of age 0 Secondly with regard to the conviction, the particulars of the charge stated that the appellant on the 22nd day of April 1977 at Kalangalala Geita District was stopped and searched by No0 C,2466 PC Chacha, a Police Officer in exercise of powers conferred under section 24 of thu Criminal Procedure Code and in his possession was found one wrist watch worth Shs. 900/= reasonably suspected of having been stolen or unlawfully acquired. But on Chacha's own evidence these particulars are not correct. For according to him, what happened was that on the day in question he was asked to proced to Gedeco offices where on arrival he found the appellant under arrct and on searching him found a watch which he estimated to be worth Shs. 600/= strapped on the upper part of his arm under a bug—sleeved shirt. The appellant's explanation regarding this watch did not impress -him. Hu therefore took him to Court and had him charqed with this offence0 Therefore if the evidence of PC Chacha is correct, and there is no reason why it shoulcin' t, the circumstances of the appellant's search ware not arri..d out :fter he was stopoed un:er powrs in section 24 of •j Criminal Procedure Code. As narrated by PC Chacha the circumstances of the appellant' s search are covered by the nrovisions of sedtion 312 (1) (h) of the Penal Code 0 So tht as PC Chacha Nyamhanqa the Police Officer who searched the appellant and found him in possession of this watch does not hold the appropriate rank under (b) , the appellants s eoarch was illegal, hence 'his Conviction under :oction 312 (1) '(a) ..annot be supported. Mrs. Matovu who apeeared for the Republic at the hoarinq of this appeal urged me to uphold the appellant's conviction, but I think she might have done so after overlooking to address her mind to the above two points. Secondly as the 'evidence dl---e s not support the particulars as alleged in the 'hrge sheet and 'a the 'faöts' '±'v'eIed 'b' the s':ate of the evidence could not be used by P.C. Chacha to charge the appellant, his'. conviction, was accordingly had in law. This appeal must therefore b allowed. I quash the conviction, seE aside the sentence with an order' for the eppellant's immediate rolease from prison unless he is otherwise lawfully detpirid. But in view ofmy finding on the appellant's legality of his possession of this watch I wiL leave the Magistrate' s order regarding its disposal undhanged. MWANZA, L,reiFALtLA 28TH NOVEMBER7. ' JUDGE I .