19790927 TZHC Dar es Salaam

I IN THE HIGH COURT OF TANZANIA s AT DAR ES SALAAM APPELLATE JURI SD IC TION HIGH COURT CRIMINAL APPEAL NO, 113 OF 199 ORIGINAL CRIMINAL CASE NO. 7 OF 1978 OF THE DISTRICT COURT OF MOROGORO DISTRICT AT MOROGORO Before Longway (Miss), Esq., Magistrate, ResLdant Bagi ,.strata.- MAWAITI ATHUNANIO 0 0 0 0 0 0 0 • . Appellant (Original Accused) versus THEREPUBLIC 0 0 0 0 0 0 0 0 0 0 0 0 0 0 • 0 0 0 0 0 0 0 o 0 0Re spondent ( 0riginal Prosecutor) CHARGE: Stealing from motor vehicle, contrary to setin 269 (c) Capter 16 Volume I of the Laws0 J U D G B N E N T KINICHA, J. - This is an appeal against conviction and sentence 0 The appellant in this case was initially charged with stealin: from a motor vehicle c/s 269 of the Penal Code but was in fact found and convicted of receiving thesame c/s 311(1) of the Penal Code and sentenced to three years (3) imprisonment. The undisputed facts of the case are that six stolen radios recovered by the Police in the presence of the appellant in a roor of a house which was owned by the appellant. The house was at the material time, occupied by the appellant's friend who was the 3rd accused in the lower court. The appellant was accused 2 in the lower court. The room in which the radios were recovered was used solely :D the appellant as a paddy store and the.radios were found carefully ase hidden among the paddy bags. The prosecution c was that althouqh the appellant did not occupy the house at the matetial time he had nevertheless knowledge of the theft or had reason to believe that the property was stolen. The radios were recovered 4 months after they were stolen. The court was of the opinion that radios chanqe hands very quickly. It was for this reason that it declinedto apply - 2 - the doctrine of recent possession and it irsteaI the appellant of receiving them0 The.appellant's defence in. the lower coUrt and in this court is that he had no knowledge of the radios in the store-room0 That the the paddy was in /store before the occurante of the theft and that th house in which the radios were found was occupied by the third accused long before the radios were stolen0 He denied having entered the said room during the materil period and if he had done so he would have been seen by some of the members of the third accused's family as it was their habit that the house was never left alone aat any time 0 Iloreover, according to the appellant, (on cross-examination by 3rd accused, at page 27 of the typed proceedings - 7th line translip) the paddy wa in a doorlessroom e ' On the above facts I find that the possibility of I person other than the appellant having deposited the radios in dispute in the paddy room cannot be ruled out0 The appellant is entitled to the benf it of this doubt 0 The appeal is for the above reasons allowed0 The conviction is quashed and the sentence is set aside0 It is ordered that the appellant be set at iry forthwith unless held lawfully under other charges 0 (N0 P. K. lcI.MIcI-IA) JUDGE 2 7/9/7 9 Delivered in open court this 28th Day of 5eptember, 1979 (N0 P. K. Ki4IEHA) JUDGEO