19730207 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA AT MANZA, 4 HIGH COURT CRIMINAL APPEAL NO. 357 OF 1972 Original Crimis1 Case No, 110 of 1972 of the District Court of Tarime District at Tarime — Before A.G.G. Korosso Esq., Resident I1agistrate. / \ N MANIRA MITA .....a, ,,, ,•,.•.",, APPELLANT \ 0 versus TH hEPUBLIC ......... ......... , .......,,,,,,. RESPONDENT CHARGE:- 1st Count: Burglary c/s 294 (i) of the -Penal Code. \''. •• 2nd Count: Stealing c/s 265 of the Penal Code. \ .Trninv1Nrn - KI$ANGA, J.: The appellant Manira Nwita was oriina11y charged with burglary and stealing contrary to sections 294 (1) and 265 respectively of the Penal Code, He was acquitted completely on the burglary count but a substituted conviction for receiving stolen property was entered on the remaining count, and a sentence of 3 years' imprisonment was imposed. He - ' has now appealed against both conviction and sentence. Various articles, mostly of clothing were found in possession of the appellant who claimed ownership thereof. The complainant (P.1.2) identified most of these articles as --being those which were stolen from her room :.,hic!: was broken into. Her identification of such articles appears to be satisfa- ctory, and I em satisfied that the learned trial magistrate was entitled to reject the appellant's mere assertion that the articles were his property. However, of the many articles which the complainant identified, only two wer_ alleged in the charge sheet to be stolen. These were one tight dress and one purple dress. The other articles which she identified and claimed to be part of her stolen property were not included in the charge-sheet. Neverthelo3 the appellant wes convictd of receiving all the articles which were duly identified by the complainant as being property which was stolen from her. It is apparent that the conviction was not completely supportable because it relates to things which were not the subject matter of the chargi. Ihere a person is convicted of staling or receiving stolen property, it muet e . be alleged in the charge sheet that the prisoner stole such property or received it having reason to believe that it was stolen. where there is fl3 such averment in the charge she-ct I think it would not be competent to convict the accused even though the articles found. on him are proved to h:ve been stolen, .ccordingly the conviction is varied and is upheld only to the extent of receiving one tight dress and one purple dress being stolen property, These two dresses are alleged in the charge sheet to be velued at Shs. 25/= each, However no evidence as adduced as to their value and no such finding was mde by the- court. In those circumstances it must be taken that the value of the dresses is not known and for the purpose of the Minimui. Sentences Act it should be assumed in favour of the appellant that the value of such dresses is less than Shs. 100, 1=. The ape11ant was also shown to be a first offender and there is no indication that ha knew that the two droeses were stolen in the course of a burglary. Had the learned trial magistrate considered these factors ho- migNt have found them to be sufficient to exclu..c. the imposition of theminimurn sn'te-nce of three years' imprisonment. The appellant has been imail for a period of about eight months since his conviction., I think that.such a term would meet the- justice- of the case. Accordingly tthe sentence of three years' imprisonment is reduced so as to result to the immedia.- e.relcasc of the appellant unless he b held on other grounds. bxcept to this limited extent the appel i/dismisse.. / MANZA, - H. KISANGA) 7th February, 1973. JUDGE. •