19771108 TZHC Arusha

IN THE HIGH COURT OF TANZANIA AT /PTTSP'

APPELLATE JIJRISDICTION HIGH COURT CRLJIlTALAPPEAIr 'NO' 181 OF .1976 ORIGINAL CRII;INAL CASE NO0 104 OF 1975 OF THE DISTRICT, COURT OP ARUSIIA DISTRICT AT ARUSEÜ BEFORE: L. S. TH0NAS Esq,., DistrctNagistrate STANLEY DAUDI • • • • • • * • • • • . APPEJ..jA.iT versus, Z .(..Origiinal'Accused) THE R.Ptfl3LIC RESPONDEITT (Original Prosecutor) 0 JUDGE11IEN'I' On..8th December 1975Stanl•ey s/o"Daudi, who had been jointly cnarga iith one Akili s/a John, on wo counts, first, houbraking coriträry0tO sectiOn 294(1) and second. àtealing "nrary to section' 265 Of tho Penal Codo,.was found guilty and COflvict?d of both count.s andvias sentenced. tO 3, years.: imprisonment on the first count and ?ix montiaa..imprison.meflt. on -the second count. Akili s/o John was, howérèi, found, not gii1t and was acquliGod. . Aggieved by that, decision of Arusha Distric ourt presided over byL. S Thoinas District Magistrate as he formerlyx;as (now ro'bired), StanloDaudi now, in ,. m ' outright view,, vainly appeals to this Court against bbth conviction and sontcflco. In his neaorandum of AppOal he indicated that he would like to be present during the hearing of his appeal so that he could'elaborate his grounds of appea1 but when the Court accorded him that chance' he informed the Court, much to the surprise of every one present, that he had nothing.to add,,to what he had stated in the Moniorandua of

Appeal. In suppoit of th conviction and the sentence the learned State Attorney, Mr. Nwale, who appeared for the Republic argued that thor' was overwhelming evidence in support of the charge. Facts as provd by th5 osocution evidence adduced beforc the trial court are simple and etraightfoard. On the 19th day of January 1975, P 1.4 locked the house he was living in and went out for a walk4 77hen he riir.ed at about 6.00 P.M. he found the door open and on entering the house he found some household articles missing. Thus on the same day he reported to Police. Two days later P.W.4 in the company of two Police Officers, while searching -forthQstolen articles along Aisha-Moshi road found two non with some of the stolen articles. These included ......./2 3F -2- These included, a cupboard and a chair which Were produced. in Court as. 11 ExiibitsAand_B" which F0W04 recognized. and • identified on the spot and before the trial court. P.713 and P.17.1 who acconpanied W4 likewise testifid. to the effect that the appellant and another man who took to his heels when they saw the searching party, was found. with "exhibii A & B" In defence the appellant dented any involvement with that offence and raised an ali1i. The trial court rejected the denial and the alibi raised and in the view of this court, under the circuLiasiances of this case the decision of the court below to reject that defence

was right. The appellant was cauit red-handed with the stolen articles. Under the doctrine of recent possesion he should have given an explanation as to how he caiae to be in possession of those articles at least to a degree of raising a reasonable doubt in the prosecution evidence. This he utterly failed. to do hence the inferrence drawn by the trial court that the appellant was the breaker and thief was correctly arrived at by the application of the doctrine of recent possession. In the event appeal against conviction cannot win and as regards sentences that on the let count is the minimum wader the law and that on the 2id CO 1J.fl. if anything, should attract criticism for over-leniecv b;': .j.nco the two were rightly ordered to run concurron .rther. is no need to interfere with the sentence on th 21id count, The final result in this appeal is that it is dismissed in Its entirety. Delivered in open court at Arush. this 8th day. of November 1977 i. (E, A dSIUT!IO) JJDCh For Aellant: Absent and unrepresented.. For Reso1dcnt(ReJ)ublic) Mr. . Msechu, State Attorney.. EAM/NTPM0