19770530 TZHC Mwanza

1 I 0 c* IN THE HIGH COURT OF TANZANIA AT MWANZA 1 PPELLATE JURISDICTION HIGH COURT CRIMINAL i-2PEAL NO0 47 OF 1977 ORIGINAL CRIMINAL CASE NO0 243 OF 1976 oF:Tj-E DISTRICT COURT OF MU..ONA DISTRICT AT MUSOMA Before G 0 ARWELENGERA E sq0 , RESIDENT MAGISTRATE SENGO.NYAMWIclWATA, 0.0000000 0• 000.0 .fl 000 00000 00000 e 000000 OAPIELLAN (Original Accused) versus THEREPUBLICO 0 00 0 .......... 0000000 0 0 0 00 0000 0 0 000 o 00 0 ORESPONDENT 0 0 0 (Original Prosecutor).. CHARGE: 3 Counts - STEALING from a Motor Vehicle c/s 269(c) of the Penal Code0 JUDGEMENT MFALILA, J. The appellant was originally charged jointly with two other accused persons who were acquitted at the trial with three offences involving stealing from a Motor Vehicle contrary to section 269 (c) of the Penal Code0 But he was only found guilty in respect of the offence in count I for which he was convicted and sentenced to two years imprisonment subject to confirmation 0 For reasons which are not apparent on the record, the trial Magistrate did not enter any verdicts in respect of the rest of the counts. This was irregular as it made the record incomplete0 The complainant in respect of the charge in count. 1. NARSHON JAGA (P.W.1) said in his evidence that on 16/6/76, he went to Kenyamoto village to sell his merchandise at the local market0 As the market day was to be on the following day, Narshc0n and the other traders decided to spend the night outside a certain house in the village0 He put his boxes of merchandise in a parked lorry which was covered with a canvas sheet, or tarpaulin. However when he woke up the following morning, he found his box missing from the lorry 0 This box contained articles of clothing of various descrip- tions which he was to sell at the local market 0 He reported to the local leaders and the same day.at the suggestion of the village chairman, a search was made at and around the appellant's homestead0 Nothing was found in the house, but a few paces from the home in the casava shamba a box and a number of items of clothing were seen0 The complainant immediately identified them to be some of his stolen items. The appellant was arrested and charged0 The appellant denied any knowledge regarding the articles recovered from his shamba0 He said that he knew nothing about them and that they could have been brought there by anybody without his knowledge. The trial Magistrate considered the possibility of somebody else other than the appellant placing these items there and rejected this possibility0 For one thing he said that there were footprints leading from the appbllant's house to the place the items were recovered0 As the appellant lived alone, nobody could have proceeded from his home to this shamba without his knowledge. For another the place where they were found was too proximate to the appellant's home as to rule out the possibility of anybody else placing them there. With these findings the Magistrate found that the appellant was fourd in possession of these articles and from this fact inferred that he must have stolen them from the lorry at Kenyamoto. On the whole I am satisfied that these conclusions and inferences were justified on the evidence0 I think likp the trial Magistrate that the appellant had hidden these articles in his shamba, and as the trial Magistrate rightly held, this constitutes "possession" under the Penal Code definition0 - In the result I agree with the- Resident Mogistate that the appel- lant stole these articles from the lorry in which the complainant had kept them0 He was theeore rightly onvicted and his appeal is dismissed. The sentence of tvx): -yE ~a ±'s imprisonmetit-S confirmeç1 Delithred in Court at Mwanza this 30th dayof MAY, 1977. F-9 LA