19780612 TZHC Dodoma

#/c i>- g- *q~ IN THE HJGH COURT OP TAIkNIA

AT DODONA A2PELLATE JURISDICTION CRIMINAl AI'PAI Mo • 259 OF 1977 •, ) OF 1977 (Original Criminal Case No. 336 of 1977 of the District Court of Dodo na at Dodoma) MARWAVEREMA . . •....... KICHEIJE NYAJ'TG!.RE . . . versus 1R9'UBL . o ... . ) ES±ONmNT CHAR0E 1st Ct Burglary c/s 294(1) of the Penal Code 2nd Ct: Stealing à/265othe Penal Code.

JUD NT iONAT 11 J.. The two appeliant.s whOse etitions have been consolidated were in the Dodoma District Court ch•rged with burglary and stealing c/ss 294( 1 ) and 265 of the Penal Code. They were acquitted of the first count but convicted of the second • coun.t and sentenced to 3 years t' imprisonment. Against the copvi2tion they have appealed. The house of Captain MTAIANGARWA appears to ave been hroken'into on the relevant night and a great nuñbet' of clothes and household goods to the of about sh. 15,000 stolen. On the next day a few of these things were fouiid abandoned in the bush about half a rile from that hous. Tie. appeilnts at the material time were inmates at the isa±iga Institution under psychiatric observation. They had however. only just escaped. As investigations into the burglary continued they were seen about to hard a train at Zuzu station and the station master, suspecting they might be escapee prioers, tipped-off the police ahd the Second appellant was soon caught at that etatioji. He was wearing some of the complainant's clothes while his haggage bomprised many of his other thin;s. The first accused could not be arrested there as he disa earod upon learning the authoritie were on their trail. He howeve' boarded that train and the complainant accompaniod by the olice also boarded it to look for him. .They duly found him. He, too, was wearing some clothes of

the complainant and hViñ bundle consisting . • of his other things. • - 2 - The foregoing has not been in dispute.. The defence of the first appellant was that, he and. the second appellant after they escaped were approached by one NASAWE and another person in a taxi, the number of which they alsO gave, as1dn them to give them a hand in moving their effects from a hoiice in the township. They agreed and. they cëthb' to the coltinant 's house. The second appellant roincd in'tho car as he; coanied them into the house'. They 'found itT.open abd"àiobodr inside. That person said he was shift.iñg and: thby helped. hin to', 'crry the two bundles to the taxi. On the .way,.:ho'continued:,ie and the other appellant were given some of those clothes to wear. Eventually, they were asked by those people to proceed on foot to Zuzu station where they should board a Tabora—bound train together with one qf their hirors. This account was fully borne out by that of the second appellant in his defence. H0 howovdr elaborated 'that from that house they came to a forest whore they wore ''Cc rved. tea. The learned resident magistrae in hiO judg.ont: had doubts if the appellants had themsolvs brokei into that house. He accordingly found that they had been invitbd and tahen to that house only after it had been broken into. He howevOr êonvict tl'em of ste aling the complainant, '.s property. It is however

to be observed tbat, according to thc appellants, when they got to the complainant's house all the t1ings had boi tel::en from. wherever they had been ard tied up in .to.hundlcs.roady for being carried away.. The•trial,o'rt was inclined to believe this. It was to say, therefore, that the theft had already been perpetrated when the appellants arrived there. That being so, they could not have participated in its '.Oommission. Therefore, o'nthe basis that all tho things had already, been rethove'd from their original positions and consigned in one plabe when the apc ilants arrived, which technically. 'constituted theft, it was not open to the lower court to convict' them of the theft. Instead, consideration. should have been diiected to whether the part played by the Cpl'lants constituted guilty rceivership. The first a:pellant in his eidnce said thst as they were taking the things out of the house one of their hirers had occasion to warn to the effect that they should hurry up as the owner of the house was about to return. That should have alerted them they had been tricked into the affair and so avoided being inv1vod , That it. was not • a case' of sOmeone shifting, from that house,.tho party hoadod for a hide—out in a forest before finally caring the booty to a distant place before boarding,,a train or attemng to I - 3 - These, in my judgment, are clear indications that they

must have known the property had been stolen ancl they could not have been innocent carriers. There was, however, evidence that they had both been mentally afflicted, but as candidly admitted by the first appellant in his evidence and confirmed by the psychiatrist's report, he had rccov..;roci when he macic the escape and. had only been there to await a further order from the court which had remanded him there in connection ith a criminal case he was facing. The other appellant claims, on the other hand, that he was toporarily insane when ho conittcd the offence, but not only is this refuted by the psychiatrist's report made shortly previously to the incident but it is also clear from the manner of his participation, including the surreptitious naturo of the escape, an(,' the recollection he has of the occasion, that he know the true nature and quality of what he was doing. Accordingly, for the conviction of stealing there is substituted a conviction of receiving c/s 311(1) of the Penal Code. Notwithstanding that the appellants were first offenders I would not consider the sentence of 3 Ycars is so severe as to call for interference and as it requires the confirmation of this court, it is hereby confirmed. Judgment delivered in open court this 12th day of June, 1978. (a P. M. JONATHAN

JUDGE