19710722 TZHC Mwanza

0: -..*- IP T}L HIGH COURT OP TiZANIL AT iJJZA Appellate Jurisdiction CR:uaNAL APEAL NO. 647 OP 1970 (Crirnal C±'ininal Caso No. 301 of 1970 of the clietiict court of Kiona before P. A. Munyora Esq., resident naaistratc) JOitd LITASHIMt...............,. .APPELLANT (oIzIc-il.i ACCUSED) versus Ti REPIJBLIC . • . . . * . . . . . . . .RESPOPDJ3TT (o:IGIHJr PRC3ECTJTOP) CIIALCE:-. Stea.1in c/s 265 of the Penal Code, JuGr:EIT EL-KIlmy, J. The appellant, John So Batashuka, was charged with-and convicted of stealing contrarj to section 265 of the Penal Code, Cap.16. He was sentenced to eighteen (18) months imprisonment He is appealing against his convictic:a and sentence The Republic was ropreserred by the learned State Attoracy, iIr.Butam- balm. The appellant did not wish to be present at the hearing It was alleged that on the 11th of Juno, 1970, at about 5 p.m., HaSaIl Eajobu (hereinafter referred to as "the cöriplainantu) was at the railway station at Kigoma. He was due to travel to Taborm, and he obtained for lilusoli secod class accommodation in the train. He left his basket and bar; in-his compartment and went to see the railway ticket examinc-r on some matter. \?hen he went back to his compartment, he noticed that his handbag was missing • He decided to discontinue his safari and i he reported the alleged theft to railway police at Kigoua Later on he received information that a

person was seen walking towcads G-ungu, some three miles from Kigoma, wi th a handbag which fitted with the description of his own handbag. It appears that he did not care to follow the alleged persodi At about 7.30 P.M., on the sane day and while still at the railway station, the appellant passed him and he was holding a handbag which was similar to his handbag'. After following the appellant for some distance, he was satisfied that it was his own handbag. He cllged that lie requested the appellant to hand cor the bag to him, but the appellant refusodi No alleged that the appellant asked him to name the contonts of the bag and he did so, but tho appellant told him that none of the thins he nmooc1 were in the bag The complainant asked the appellant to open the bag but he rofas&4 He insisted that the bag was his property. This argument wont on for some time until they agreed to go-to the shop of John Chengo (P.7.2) so that a poroon can vvitnaa the contents. At that shop, and in the presence of John Change, the hand- bag was opned A pair of trousers and a towel were taken out. The complainant claimed that both items were his propty On the pair of trousers he was able to show that the replaced lOu'ttons were limed by moans - .- - - - (- - PF !- o white thread, and on the lianclbai he pointed out ia black line of colour on the outside which he allcecl was caused by black substance-

fron his ...2 bicycle. Ohenie (P.\;.2) confiruei the cuplainnnt's evidenco. In his sworn defence, the appellant said that he boul -it these items from a peddlo: at his house, and that when he was passin; with than the complainant confronted him, He alleded that he could not find this man s and that he di not Irnow that the items wore stolen property, and that he did not suspect them either. He said that he did not cniro from the person who sold thou to him if he had obtained thou lawfully. It would have been strar:a if he did as thn normal circunstances a buyer does not ask the vendor there or how he cern to be in possession of such foods unless ho suspected thcei In this case, the appellant said that he did not suspect thei On this evidence, the trial nistrate bold that -the items found in possession of -the appelent were those of -the couplctinnat With clue respect, the subsequent findinfo of the trial mafistrote cannot be summarised, and I auote them in full, He held:- 11 The accused's (appellant' s) defence is that he boujht the coods from the traveller and did not ivaovi that they were atolen foods. Por-that reason I find that the accused (appellant) was in possession of stolen propetk a few hours of its thcft and he has riven a reasonable explanation as to how he cane by the sane1 In this connection the acoused (appellant) stated that lie boucjht the hoods from a

-traveller and no one waspresont then ho bouht then i cm unable to accept such a story I find thc accused (appellant) has not 'ivon a reasonable explcmation He then concluded that the "presumption to folli is that the accused (appellant) v;as the thief not a receiver" With duo respect to the learned urf;istratc, in this passae 1 exhibited confusion in his mind, and it cannot be said that.. the learned uciistrate properly directed hiusblf on the issues involved. In my vic-w at least, three issues wore involved and the learned uaf,istrcte oiht to have directed his mind clearly. There was tho question of innocent possession which, if accepted, would hcwe been a Lood defence to theft and to receivini; stolen property The second issue was whether, on the facts and circumstances, the appellant WCS C thief as charc;od. and similarly on the third issue vthetiier the appellant was a fuilty reQeiver. At the start of (above underlininf- ) it would suL;fcst that the leQrned rirristrate vies satisfied that the appellant cave an explanation which could probably be true and therefore ho was inclined to acquittinL bin. But when he turned to rejectinf pert of the / appellant's expl:-nstion, it becomes unclear as to what he meant by the 7 words- The has a;iven a reasonable explanation as to how he cane by thc l , ,-' sane u. The matter is not further crified by the use of the last -pbes the

accused (appelL nt) has not fivon a reasonable oxplanat'. 's it was said by the Court of Appeal in the case of IM V. ViB/ (1942) 9 E.A.C.J_ p42, in order to justify quashinf- a conction iaisdecOn as to evidence must be of such a nature ad the circunstances of Ghc case must be such that it is reasonably probable that thebrial court would not have . . .3 convicted hod -there been no nisdirection.. The case of REX v. COIIEEk (1938) 5 E,i.C.ii., p.128 is also re1evt. It is clear that the exlcucace of i:.iisdirection does not necessarily lead to a quashi of a conviction, as that would depend on the nature of the evidence on record and the circunstances of thi2 The test app ois to be whether the appellate court on the particular case could still say that the ieaxned magistrate could still cone to the santo conclusion had he not nisdi.recbed hiusclf The Court of Appeal thought tint, in CORREAT 5 case s that OVCIi 0. 5OI'1OUS misdirection would not necessarily ic-ad to auashing a conviction. In this case,, apart 'from these Liisdirections I hve underlined, the loaneed trial an5istrate. also misdirected himself wiien he said that tao appellant VanS required to give a reasonthle explanation. The law does.not requine bin to do anrbhing of this sort in the ccuise of his defence. HO is simply, required to give an explanation which could probably bereasonably trues Thcrofe, taking into

account these raisdirections on the cvidnce together • Vlith the facts of -this case and the surrounding circunstances -. the appellant's conduct from the tine he was seen in possession of the handbag to the time when the handbag was opened in the preence o Chengo is consistent with the conduct of a po rsha who was on guard - it cannot be said that the learned magistrate could have cone to -the sane cnc1usion. If at one instance he was inclined to the view that the appellant's explanation was probably reasonably tiue, and then he thought otherwise, this court is unable to say which was the final assessment of defence which was taken by the trial court. For the stated reasons, the appeal is allowed. - ORDER:- The conviction is quashed and the sentence imposed set aside. The appellant should be released forthwith unless he is held on some other lawful purpose - Delivered in Court on the 22nd day of July, 1971. (z. if. El-iildy) JUDGE. Appellant: absnt, - Respondent Mr. Eutanbala.