19790110 TZHC Arusha

S - L/29 P tt C IN THE HIGH COURT OF TANZANIA AT ARUSHA APPELLATE JUISTITION • HIGH COURT CRIMINAL 4JFEALNô. 241 OF 1976 ORICINALCRIMINAL CASE Fo. 200 OF 1976 OP THE DISTRICT COURT. OF MOSHI DISTRICT AT MOSHI E'ORE : A.S. FANcAHELA •Esq, DISTRICT MAGISTRATE. Shabani Selemanj. •.Se.... .. •.. •....eS.a Appellant Orig. Accused ). versus The Republic .•........ . . •* e ••.*..• .. Re spondent rg. Pros ). Before N.S. Mnzavas J. JLTDGEME NT The appellant, Shabani Suleimani, was charged with Burla'y and stealing clv.. 265 24I) O f thO Poral Code. Aftor evaluating the evidence before him the learned 'trial magistrate was of the view that the facts were more compatiable with the offence of receiving stolen property knowing or having reason to believe that the same was feloniously obtained c/s 312 of the Penal Code and acting under the provisions of section 181 (I) of the Criminal Proqedure Code convicted the accused: of this offence and sentenced him to 3 years imprisonment. Against that finding and sentence the nccused is appealing to this court. In his defence before the lower court, which defence he I'as recapitulated in his memorandum of appeal to this court, the accused argued that he had/eceipt in support of his defence that the pair of trousers he was found wearing was his personal property The receipt, " Exhibit BU showed timt the pair of trousers was bauht in Mombasa, Kenya, on 8/1/7. As rightly argued by the ...•••.••.• the learned state attorne.y the receipt ," exhibit B," did not absolve the accused from the charge of receiving stolen proerty. If accused's defence that he was given money shs.130/= by his brother, (D.W.I) on 12/1/75 to buy the trousers is anything to go by how come that the reoeipt exhibitB,"shows that he bought the pair of trousers on 8/1/75 - Four days befoe he was given the money to buy the par of trousers And what is more the pair of trousers was, with Sundry peculiarities, amply identified by Joyce, (P.W.2), the complainant as part of her property stolen from her room on the night of 9/12/75 when her .house,..waa burgled. There was evidence that the appellant was found wearing the pair of long trousers on 15/12/75, hardly a veek after the burglary and theft. On this evidence the accused was pr'obably lucky not to have been convicted of the offence of burglary and stealing as charged under the doctrince of r'ecet possession. •••. As forthe sentence of three years imprisonment the pair of trousers found in the possession of the accused was stOlen 'after the burglary, a scheduled offence under the Minimum Senten,ces Act, 1972, and as such this court has no power to interfere. . . ... In, the event i agree with the Republic submission. that this appeal should be dismissed in its entirety and I. so order. • S. 1f-Z..VA S ARUSHA JUDGE ) 10/1/79 . Appellant - Absent and unrepresented. . Merinyo for the Republic.