John Asumile vs Republic (Criminal Appeal No. 240 of 1977) [1978] TZHC 273 (10 April 1978)

THE HIGH COURT OP Tft1'TZNIA /,L7 AT DOD)MA APPELLATE JURISDICTION CRININAL APPTAL NO. 240 OF 177 (ORIGINAL CRLiAL CASE NO. 801 OF 1976 Appellent vor SUS THEREPUBLIC •• .,. 1 .....,..........ResponLnt (Oriinal Pros..cutor) J U D G M E N T A now lorry tyre appears to have boon stolen from the premises of the Water Dopartiont, Dodoraa. It was the spare tyre of a lorry of which P11.4 SHINYA was the driver. According to PW. 1 GIDEON,a day or two later in thc morning the appellant as his friend aproachod him at his place of work, the Railway Hotel, asking for the key to his room so that he could entertain a girl frid there. He gave him the key. P.W.2, NERINA the sister of P.W.1 was staying with him as his guest at the Railway quarters and on the evening of that clay, she said, the appellant carte to the hôuso riding a bicycle and carrying a friend at the back and shortly thereafter someone, the second accused in this case, arrived there pushing a cart. The appellant then opened her brother's room using the key and he and his companion took out a lorry tyre and put it on the cart. The appellant then rode off carrying his friend on the bicycle while the other man followed some distance behind pushing the cart. F. 3 NAYCA

• neighbour of P.W. 1 had been observing all this and as the tbree people were going away past hirl he asked to Imow the source of the tyre. That got him only&cbuke from thom.. /a He would not let then got away with it, so he wont ahead of the second accused riding a bicycle and telephoned the police and, while awaiting their arrival, ho stopped hie. The witness duly handed ov•r the cart with the tyro on board to the police. The second accused in the roantim.c had left to look for the appellant, but on the next Jay ho reported at the police station apparently, for his cart, whereupon he Jed the police to the arrest of the appellant. The tyro turned out to be the stolen tyre of the Water Depart tent. The second accused in his defence said he an.d his cart had been hired by the appellant ar1d another person to carry some luggage from the Railway urtrters. He agreed and together they proceeded to that place, the accused duly pusJ2ira his cart. There, he said, the appellant using a key opened a door and cane out of the room pushing a tyro which he and the other person put an the cart. He pushed the cart heading for the place he was asked to take it and moot then while they rode off ahead of him. He hoard PW.3 speak to theta but he does not appear hord the discussion. He was later stopped by PW.3 when he offered to look for his hirers. This was supported by his witness DW.2 who said he was present when the appellant and an other hired him. The appellant's defence in an unsworn statement was that he had called at the apartment of PW.1 to pick his luggage and that he had foimd him present. While there, there came two people on a bicycle followed by another p. rson pushing a cart..

-2- The two people then opened PW.l's ro'ia and took out the exhibit tyre. He became a little curiotis but his suspicion was allayed upon PW.1 replying to him the tyre belonged to them. He was saying, in effect, that ho had had nothing to do with tho: tyre. The acquittal of the second accused on the foregoing, facts was clearly deserved. I 'avo no doubt either tht, on the evidence the conviction of the aipcllmt WaSflCV-- table. The evidence of Ptq.1 was to be received with cution as well as that of PW.2 his sister, if only because on 1.o face of it he was answerable for the presence of the stolen tyro in his room. Their evidence ws however well corrobo- rated by that of PW. 3 who had no cause to falsely implic.;te the appellant and also that of the second accused. On such evidence, I am satisfied he was properly found connected. withthe thoft. He however seems to argue his way out on to fronts. Firstly, ho seems to suqest that PW.1 h'al lmow- ledge of that tyro being in his room. This would not, however, displace the fact that he took that tyrc out of the room. and handed it to the second accused. The other front of his attack on the lower court's jud.gmcnt does, on the ot:or hand, appear to have some validity. PW.4 the driver of the lorry has not said where the lorry was parked when the tyro was romove. As it was however otherwise suroestod that it was in the promisea of the lñator Dcpart-iont, the apcllant called D.W. 1 ,a watchman of th'.t doixrtn.ont to depose that nothing gets out past the gate withi.t there being a gate pass, while all vehicles leaving thQ premises are chocked at the gate to soc that is on board. Now, the appellant was not an omployco of that departient and there could be no certainty that he was himself the thief, notwithstanding the short period between the theft and the discovery of that tyre in the appellant's possession. Accordingly,, he should be given the benefit of doubt that he may not himself have stolen it and that he only rodeived it. All indica- tions are however that, when he received it he lmew it bad. been stolc.n. Firstly, he told PW.1 a lie that he wanted the key to entertain a rlfriond in his room. Seconily, if ho irnow or believed the tyre had not boon stolen there would hac boon no cause to lock it. in that room. Thirdly, according to PW.2, in response to her expressed surprise •that the girl friend he had told P.W.1 abtut was only a tyro, the appellant replied to the effect that she was not to ask him any more ques;icn. He appears to have made a si:'ilar reply to P.J. 3. Finally, upon the second accused failin: to deliver the tyre as instructed he did not follow it up, which is obviously inconsistent with any claim that when he receive-', it ho had. no Imowlcdge or reason to bolieve it had been stolen. ,Accord.ingly, he was a guilty receiver. In the result, the gonviction of theft is sot aside and there is substituted a conviction of receiving stolen property c/s 311 (1) of the Penal Code. This, like the offencO of stealing in those circumstances, attracts the : -iinimun sorjoncc, th ich w S duly imposed, and, accordingly, the sentence will stay undisturbed. Save as just indicated then, the appeal is dismissed. Delivered in open. court this 10th day of April, 1978., (( P.M. JONATHiN JUDGB