19820602 TZHC Tabora1

0 IN THE HIGH. COURT OP TARZANIA ATTABORA. APPELLATE JURIDICTIOI (Tabora Registry) (HC) CRIMINAL CASE NO. 1210F 1979 ORIGINAL CRIMINAL CASE NO. 666 OP 1978 OF THE DISTRICT COURT OF TABORA DISTRICT AT TABORA Before NYAMASAGARA Esq., Resident Magistra II \LJU±iA d/o RAJABUO • . APPELLA.NT 0 00 0 0 S S 0.0000 0 5 00 0 00 00 50.0 , • • (original Accused) veraus THEREPuBLIC. 0 •o 0 o • oo••oo.••••• o o • • , I • • • • RESPONDENT o e o (Original Prosecutor) Charge:- Burglary c/s 294 of the Penal Code Caj.16 Vo1 1. of tb4 Laws Stealing c/s 265 of the Penal Code Cap.16 Vo14 of the Laws. J U D G M E T RUJ3AMA, J• The appellant was charged with and convicted of burglary 294 of the Penal Code and stealing c/s 265 of the Penal Qode, She was sentenced to 3 years imprisonment in respect of the 18t offence and I year imprisonment if reep'èct of the3second w the sentncesto run concurrently. On -the hearing day of the appeal, I allowed the appeal and quashed the convictions. I also set aside the prison sentences, .0 this was unfortnately academic. The appeal had taken long to be heard for reasons that are irrelevant to detail in the judent, The appellant had been released exactly one year before the hearing date. The facts as found established by the learned trial magistrate were that on the night of 29/1/78, the house of one Hadija d/Q Omari was burgled and from therein several items worth shs, 1.144/0 stoleu., Nobody was seen coumitting the burglary. However 1 on 11/8/78, one dress was found being worn by another woman, It was stat- ed that this wonn was given by the appellant. Theçe was no evidence fixing the time the g was alleged to have been given to the woman found wearing it. The appellant denied having givéft the to the woman found wearing it and stated that she knew nothing aboui it, I allowed the appeal o two main grounds, Firt1y the evidence tending to connect the appellant to the stolen item, which granted ,, , 2/ was sufficiently identified by the complainant as having been pne of the several items stolen from her, was hearsay evidence. In t.ie judgment, the learned trial magistrate sjates: "In her evidence in chief, POT. 2 told the count that accused having been stopped while weaz!ing the gawn., she (accused) took them to Kiloleni area where àne Haruna Rainádhani was heard by P.7,2 saying that the gaWfl (in dispute) was given to his wife by one Mwajuma". ffarun.a Remadhani was not called to lestify. Once this hearsay evidence is not taken into consideration, the court is left with no evidence connecting the appellant with the stolen property. The learned trial magistrate properly addressed b.melf to the doctrine of recent possession. He also Ob se rved that from the nubr' of beral legal .uthorities he had read as regards the doctrine of recent possession, he had failed to find a general rule as to what period of time was sufficiently recent enough for the applicatio:i of the said doctrine. I would only state that the obsevationof t learned trial magistrate is valid to the extent that there is no chart that provides or itemised categories of stolen property against a general time schedule considered recent enough for the application of the doctrine of recent p9ssession. That would have been impossible and indeed ft.tile. Wowever, as early as the fi'st half ofhe ninetee th c enturi - that is ever one hundred years. ago, in the case of R v. Partridge, ( 1836) 70. & P.551; 173 E.R. 243, the prin.iple was laid down that the question of what is or what is not recent possession of sto a property must -e considered with reference to the nature of the articLes stoleir. In the case of Zus v. Uganda (1967) E.A. dO, Sir Udo Udoma, C.J. held that "a period of seven months cannot be described as "recent" and the trial apply the doctrine of "recent posseSsion". A bicycle was involved. In the case of:JohnNditi v.R Cr. App., 163 of 1978 (Meya Registry) (unreported), the appellant had been fo.nd in p0.- ssession of a seving maôhine in less that hreë months after the same had been stolen from a boünal shop.. 8ametta, J held that a sew±g rachine was not an article that changed handp easily and quickly. In the ease of bdullah Ibrahimv R. (1960) E.A 43, Law, J. dealt with the qustion that had exercised the mind of the learned trial magistrate at .ome length. In tPiiis ease, the cOurt hela that posseSsion of an artLle of comofi use euh asà tyre p'p seven months often the btirg1.ry bOuld not raise the presumptiOn that the appellant was guilty of stealindi The Eà.ston Africn 6burt of Appeal in an appeal from Tanzania jo Sai. Mdern.0 v.a., E.A.0 Cr. AppA No, 89 of 1974 (unrepoEted) stated that what constituted recent possession varied according tO the nature of the arti- cle and the court had found a gun was not an article that qhanged hands frequently. However, the court had stated that 19 months was too long a e1rind to allow the doctrine;to be invoed In the àpoal before me, the possession of the identified as having been amQngst the stolen .tem was traced a lapse of about seven months. This was/traed to her - I am here proceeding on the suppoition that the evidence connecting the stolen i -tOre and the appellant was not hearsay evidence. Surely the period o' seven months is too long for such a common item as a gawn The doctrine of recent possession can not be applicable insh a case to support the charges of bulary and stealing. As was stated in the case of Obonyo v.R.(l962) E.A. 542. "Where it is sought to draw an inference that a person has committed another o.ffence from the fact that he has stolen certain articles; theft must be proved beyond resonäble doubt. If, in such a case, a finding that he stole the articles depends on the presumption arising from his recent possession of the stolen articles, such a finding would not be justif ied unless the possibility that he had received the articles has been excluded. The infence that he stole the articles must be irresistible". In the present appeal, it could not ie said that the possjbjty of the appellant having received the g' in question has been e1u- ded. For the reasons outlined above o this apeal is allowed. The convictions against the appellant are here 1oy quashed and the sentences set aside,. I wish to add that the Republic did not support the corn/ic- tions. YAHYA RU3AMti,J. 2/6/82 2 6/82 Coram: Y. 'RUBAMA, JUDGE Appellant: Mwajuna Rajabu - absent Court: Judent delivered in Chambers this 2nd Day of June 182 in the presence of Mr. Challa State Attorney for the Rbpublic - Th YAI-IYA RUà4., J 2/6/82 /GN tl.