19710504 TZHC Arusha

CZANIA - MMQGDIGT j2& IJI GH - COURT CRIMINAL APPEAL NQ.9 OP 1971

OF THE DISTRICT COURT OF KILIMANJARO DISTRICT AT MOSRI. flcfore_I.H.$lReoa Ep flesl.4_ent Pa istrate PETER 8/0 (Original ccued) versus THE REPUBLIC...........,.,..........,.....,..........RE3POIENT (Original Prosecutor)., 1et Cojmtt Burglary c/c 294 (1) of the penal Code Cap. 16 Vol 1 of the:lawo. 2n&Countt SteaUng c/s 265 or the ponaj code cap.16 Vol 1 of the laws. q7Jf-(J) 2o Kwikima. Ag.J. The appellants were jointly convicted of burglary and stealing property worth she 187/= the belonging to one Edina Leonard. The prosecution evidence was that a radio and blanket were found in the appellant's respective houses. The complainant Ed.tna identified theni to be her property stolen when her house was burgled on the night of the 16/17 May 1970. She identified the blanket from the spot where it was burnt. The radio had her name scratched on its This was all the evidence against the appellants. Applying the doctrine of recent poocession the learned Resident Magistrate who tried their case found the appellants to be the actual burglars and thieves of Edina's property. The Learned Resident l4agistrate concluded; " and for the evidence adduced by the prosecution I an OStinflOd that the two articles were properly identified by the owner. As such thoreforo I am astiefied that if the two acuscd were found with them then they must have stolen them"* conceded that the learned Resident

Magistrate's conclusion did not exactly accord with the Law. The accused persona are only held óulpnble if they tall to e,pla1n to the satisfaction of the court that their possession of the articles proven to have been recently stolen is innocent and lawful. In this case the blanket was claimed by one of the appellants to be his property. The complainant purported to give her identification mark after being shown the disputed blanket at the police station when she had opportunity to study it and commit to memory ary special marks it would have. It 10 thCrefore unsafe to hold that the disputed blanket was conclusively Edina's property stolen In the course. of the burglary at her house. Such item as a blanket Is very, common indeed. It can change hands so easily in a space at one month as everyone has use for it especially in those parts of Tanzania where it can be quite chilly at night. I fail to see how the appellant could be hold .• • ./2. ... - to suspicion for possessing a blanket allegedly stolen one vxonth prior to Its being found in his possession. It is true that one month was held recent for a radio by Georges C.J. ( no be then was) in the care of ftgj Aflj Mahautbi. V R 1968 ECD 157 but it should be pointed out at once that in those dayo a radio used to be 3.iccnocd for an annual fee, of ohs 20/v. Such to the case no longer and I doubt if the Court would still hold one

month to be recent for a radio, without further evidence tending to Implicatiq the pooceosor* Furtherrnoro the appellant Peter Ngau vrfth the was only found with the blanket out of the large number of clothero Edina alleged to have loot in the course of the reported burglary.. From the foregoing it Is evident that Peter Ngau'o conviction could not hold. With all the doubt prevailing ii his cane, he could not oven be hold a guilty receiver, lot alone being held the actual burglar. The trial court ought to have Th was his property. The investigated the his claim that the 'nkot judgement reveals that the appellant a evidence given an oath was not even considered by the learned trial magistrate. This acctwioned a failure of Justice as a court should judge a case according to all the evidence before it and not only according to the evidence of the prosecution, It is true that the burden lies oquarely on the prosecution to prove their case beyond reasonable doubt but the accused should be listened to and his defence inveotigated in cases of ouch nature. This was laid down in the case of iiLUam iL R 1970 HCD 176. The learned trial . magistrate did not bother to inquire further into the appellant 'a allegation that the blanket was his. The prosecution toll into the same error. As for the other appellant Oldion Wkomà, there was other evidence implicating him besides his possession of

the radio which was condusivoly shown to be Edna's. He failed totally to explain to the satisfaction of the court that he came by the radio lawfully. He simply denied being found in possession of the incriminating article. The witness he purported to call advanced his defence no farther. Consequently his appeal cannot hold and it is hereby dismissed in its entirety. For the reasons above,the conviction of the appellant Poter should not stand in the absence of other evidence tending to inplicato him. Accordingly his appeal to hereby allowed. Tue conviction of the appellant is quashed and the oentencd thereof cot aside* The appellant be released tuthwith unlay held other lawful connezion. LLpH.Ajwikima, Aruobt. AG. 3 U J) GJL, 4th May, 1971* of