19740422 TZHC Mwanza

IN TJD HIG-H COURT OF TLi AT IANZ HIH C0UT CRIffNAL APF&L No. 17 OP 1974 Oriinal Criminal Case No. 373 of 1973 of tha District Court of Tabora'istrict atTabora Before H. A. ?suni, Esq., R-'L I 1974 (UL ThIIUSSLIN CH GN , versus TIM REPtJLIC . . . . . . . .' . . S • • • • .•.. . . . . RLSPONDBNT CHARGE:: 1st Count '- Stoaling by a 'peron employed in the publc service c/ss 270 &.265 of the Penal Codo. 2xd Count - Receiving stolen property.c/s 312 of tho Penal Code. • .S JDG1vIT S ' JONtfliM, J;:. 'The.' appellant, .5anIndian businessman, wa ohargod with and oonvictdd of 'receiving stolon' property ontrary to section 312 of the Penal Cod.e, and sentenced. to 4 years' uPrisonmentas vas a oD acu..,ed )Henis1 Maulidi2 rho was charged in anothcr count jointly with a third accused vitn stealing b, publiservant ontrry to: sections 270 and 265 of ho.Penal Code.. The third aa3usäd vds aqti.ittc.d. .'Mauiidi:has.iot appealed. . .. . I'vouldi Voint u't at the outset 'that, the offence was vrongly laid under seti&n 312 hio'h ro pr'o.isions' for bci .ng in possession of propeity suspected to have been stolen. S It IS clear from the partiulors of the offeno and the evidence -as a whole that the charo against the appellant was one of receiving stolonproperty contrary to section 311(I) of the Pnal Code. I em however satisfied that the appellnt was not thereby prejudiced. The main facts of the case are simple and hardly in dispute. ?iaulidia driver employee of the Ministry.o' Agriculture at Tabora ) abompanied by, the third accused who was acquitted 1 upon presenting 'off ioial roquilsition papers to Goverzient Stores 1 Tabora obtained 6 landrover tyros. Maulidi on the material evening at about 7.00 o'clock drove to the premises of the appellant and sold him five of the tyres. The appellant's defence both ±n.a cautioned statement he had made to the police and in his unsworn statement was that he had bought the tyres for Shs. 1,500/- not knowing they had been stolen. The learned rosidentmagistrate found 1 however 1 that he knew when he bought them that they had been stolen. In finding so hb relied on the time of the transaction being rather late, the facts that the appeflant took the tyres into the prethisos through the back door, that, to the appellant's knowlbdge, Maulidi did not have 'a vehicle of his ovn and that the appellant had said in his cautioned statement that he bought the tyres by hard luok",which i s hardly a happy translation of 'kwa bhati mbaya" the words actually usoci. Mr. Th.igardbamu for the appellant submitted that it was wrong for the trial court to act on the uncorroboratod cautioned statement of Iaulidi in which he implicated the appellant. However, as rightly pointed out by Mr. Meola who appeared for the RepubliC, there was the appellant 's unrotracted cautioned statement that he had bought the tyres from Maulidi. Cortainl no oorroboration was needed of that, and if, it was 1 thore was the undisputed faot that the stolen tyros were found in his possession. The only point in issue was whether the - - . 2. - . .. appellant knew or'hid reason to bclicvc.,tho tyros had been stolen. The case was by no moans easy to decide. It was i'Ir. ..Mcela's view that the appellant.hnd. ek duty to find out how &ulidi oamo to assess the tyros. I would agree that it would have been a sensible 'thing to do, but his failure to do so should not, with respect, be ovorstresed so as to mputo to him knowledge of the tyres having been stolen or unlawfully obtained. ! part from this i does not sceto metha,t the cir sanes of the transaction wore sufficiently nralpatry to impute such knowledge. It may have boen 7.00 p.m.. whe,n the purchase was made but as'Mr. 111oo'la conCeded ) it vag''not necessarily dark at that our while the, ors attributed to hi 'that:'horeoivcd them 'through bad luck" are .tecessari1y an admission of guilt. Nor should much sigiüficanco be attached to tho tyres being. r.ecoivcd through the back door, for if the 'front door was already closed, as it may well have been, it was only reasonable to use thee batk' 'door hith rny' thoi..havo.:.bbn:in use. 'There is then the suggestion that th apcllant 'knew ppollant did 'not, have a vehicle of his own. It .mayc have been so,bu ftcrt',inly vanot the caso'thatbnly people who own vehicles oan lawfully ell"tyrs. The 'oirt,ustances aresuspect in;which the 'ppolla'nt bought the ,''tyres,' but . in my view they do not suffiôic'ntly. indicate that the appc11ant when he ., bought thorn knew or had reason' to believe thoy had been stolen or unlawftlly Obthirio. bcordingly, I 'do not find, it safe to uphold the conviction, which is hereby uashed together vrith the sentence. I.M. JONTHN 22nd april, 1974 b. '.' JtJDG' '. '