19770711 TZHC Dodoma

IN THE HIGH COURT OF TANZJ\l'JIA AT DODOMA APPELLATE JURISDICTION HIGH COURT CRIMIN,\L APPEAL NO. 98 OF 1977 ORIGINAL CRIMINi\I., C,\SE. NO •. 81. OF .1977 OF THE DISTHI'CT COURT OF KONDO;\ DISTRICT AT J<ONOOA Before M. Ae Upaga e • 0 0 0 0 0 • 0 0 O, o .District Magistrate KATOSHITA S/0 KEMBOo • " o • ., .Appf:llant (Original Accused) Versus THZ REPUBLIC., ., • " • • 0 t" 0 0 000000 • • • • • Respondent (Original Prosecutor) Being in possession of property suspected to have been stolen c/s 312 of the Penal Code, Cap., 16 Vol.I of the revised Law., JUDGMENT In the district court the appellant was convicted under section 312 of· the Penal Code of being in possession of prope.rty susp2ctt-:d of having b,,)en stolrm or unlawfully obtained. He was sentenced to 12 months 1· imprisonment. From the conviction and sentence he has petitioned this courto As very rightly submitted by the le ,,.rned state attorney, thE:! facts were too thin for a conviction. It was the prosecution allc~_·ation that on the relevant morning at about ten o'clock the appellant, a barbaig, was si~en driving one head of cattle. According to the police offic0.r who questioned him in the exercise of the power? conferred on him under .section 24 of the Criminal Procedure Code, the appellant told him he had bought thut animal at a village called Isafa but as he did not produce any receipt to support such purchase the askari suspected the r.~imal might have been stolen. It is however doubtful if that ulone was suffici<~nt to raise a reasohable suspicion that the animal might have been stolen or unlawfully obtained so as to prefc:r a charge ag,ainst the appellant. The appellant in his unsworn statement, consistent with what h;;.:, had told the police, said he had bought the animal at Isu.fa village for shs. 305/=. and duly named the sel lero He did not, however, call any witnesses, apparently because such witnesses as hl-:: might have called lived far aw,ay. The learned district magistrate in his brief judgment noted that the appellant in order to be acquitted had to iigive a very satisfactory account o.s to how h~~ came by the suspected head of cattle." This o£course was a misdirection but for which he would most probably not have convicted. The appellant did not have to prove that he was lawfully in possession of that animal. All that he had to do to be acquitted was to give an account to the satisfaction of the court that that head of cattle might not probably.have been stolen or unlawfully obtainr.::d,. The onus he had was merely that ••• /2., 2 of establishing his innocence on the ba_,_ c:1ce of probabi:Li tie so As I iridicated earlier, the suspicio;-: eP.ge~:,dered by the fncts wns very slight,. espec'ially cons::.derinCJ that barbaig::; are cattle herders and the appellant was driving only on0. J-:.,;-~ad of cutth,, and thi"it in broad day lighL ::::: would think, therefore, his account should readily have ~e~n a~cn~ted. Acccrdingly 1 the appeal is allowedo The conviction j_s s ..::-:: as::.o.e together with t11e s'-mtenceo That animal should be retu:.:-ned to h:i.rr.,, Delivered in open cou.1::t th.1.s )_::.th day of July~ 1977., Po l-10 JOi'JATH,\N JU[;3E