na TZHC Dodoma 15

i o4 IN THE HIGH COURT OF TANZANIA Od S AT DODOMA 111tc- F—çi APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO.196/72 ORIGINAL CRIMINAL CASE NO0 220 OF 72 OF THE DISTRICT COURT OF IRINGA DISTRICT AT IRINGA Before J.A.P. Mdoe •................................District Magistrate JOHNSELEMAN®SALUMSOMGA ............ 00000000000000000000Appellant (Original Accused) versus THE REPUBLIC ..................................... •• Respondent 0 0 0 0 0 00 (Original Prosecutor) - Burglary c/s 294(1) of the Penal Code Cap. 16 of the Laws. ip J U D G M E N T MAPIGANO AG 0 J. Thd appellant was convicted of burglary and stealihg and was sentenced to concurrent terms of imprisonment of four years and one year respectively. He is appealing against the convictions and sentences. It was established in evidence that on 9/5/72, the complainant's house. wasbroken into and several articles, inclui!g a jacket, stolen fromit.. The complainant estiinated that the value of the goods which were stolen was about shs 0 4300/=. 0n23/5/72, the appellant was arrested in connection with another iatte±'., According to S G M. Weston (PW3), the appellant was then wearing a jacket, exhibit A, when he was brought to the police station. PW3 seized the jacket on suspicion that it may have been stolen. Subsequently, the complainant in this case was called at the police station and he confirmed that the jacket was his and that it was one of the items which were stolen following the burglary The appellant was then charged with the two offences. The appellant gave evidence on oath and he denied that he had been found wearing the jacket. He claimed that the jacket.had been planted on him at the police station. However the learned magistrate accepted as true the testimony, of PW3 and rejected the def'ence0 As he remarked, the learned magistrate found no reason to suggest why PW3 should have planted the jacket on the appellant and iindeed the appellant himself had not suggested any plausible ground why PW3 should have decided to fabricate an accusation against him. Accordingly, the court found that the jacket was found in the physical possession of the appellant. The learned magistrate also thought that this possession was recent and on account of the appellant's failure to give a satisfac- tory explanation as how he came by the jacket, he presumed that the appellant was guilty of the two offences he stood charged with. I have perused the evidence and considered it sufficiently and I am of the view that there is hardly any plausible ground upon which the trial court'-s finding that the appellant was in possession of the stolen jacket may be challenged successfully. In arguing this appeal the appellant claimed that PW3 had been all out to put him into trouble s but he did not say or even surmise why and there is nothing to indicate that he even complained against PW3 during the trial. I therefore,. agree with the finding that the appellant was arrested when he was wearing the jacket. . . ..... The most pertinent matter to consider in this appeal is whether that possession was recent and whether the presumption that it was the appellant who burgled the complainant's dwelling house, was reasonable.' It is true that one of the factors to be taken into account in considering whether the possession of a stolen article is recent, and it appears that the learned magistrate was fully aware of it., is how easily and readily that article can pass from one hand to another and I have no hestitation to say that a jacket is essentially one such article. As said in JAGAT SIGH, V R. (2) (1953) 20 E.A0C.A. 283 atp. 286 "It is not the law that proof of recently stolen articles will necessarily or in every case justify an inference of guilt. What constitutes recent possession depends upon the nature of the property and the circumstances of the particular case." In Lucas Ianda v R (1972) H.C6D, no 0 214 the accused was convicted of housebreaking and stealing. The evidence led was that ten days after the house was broken into, the accused was seen with some of the stolen clothes viz, a bed-.sheet, two trousersi three shirts + a neck tie and jackets The trial court considered that the time was recent enough to raise a presurription against the accused on the charges. In the present case the appellant was found with the stolen jacket fourteen days after the burglary and I think in the absence of any other circumstance, a presumption against him' on the charges may be raised In my opinion there is here one material particular to be considered. Unlike in Lucas Nbanda's case above, the article which was traced in the appellant's possession did not comprise most of the complainats stolen goods. According to the complainant, a total of twetty—one articles were stolen on that occasion while only one item was found iii the appellants custody. Other articles had been discovered at Dodorna and others were never traced. It appears to me that the learned magistrate in convicting the appellant of the charges of burglary and stealing, did not direct his mind to this important matter. I cannot say that had be done so, he would still have convicted the appellant of these offences. A better presumption would, in my view, have been that of receiving stolen goods knowing or having reason to believe the same to have been feloniously stolen or obtained centrary to section 311(1) of the Penal Code. Accordingly, I set aside the convictions for burglary and stealing and substitute one for receiving. The sentences are set aside and one of three years imprisonment is imposed instead. The order for compensation is also set aside. LP. NAPIANO AG, JUDGE I