Geroge Edward Chitema vs Republic (Criminal Appeal No. 80 of 1978) [1978] TZHC 347 (1 January 1978)

I H IN THE HIGH COURT OF TANZANIA AT DODOMA APPELLATE JURISDICTION CRIMINAL APPEAL NO. 80 OF 1978 (ORIGINAL CRIMINAL CASE NO. 611 OF 1977 OF THE DISTRICTCOURT OF DODOMA) GEORGE EDWARD CHITEMA. . . . . . . . 00 . . Appellant (Original Accused) Versus THE REPUBLIC,. . . .. .. . * . . . . . . .. Respondent (Original Prosecutor) charge: Burglary and stealing c/s 24(1) and 265 of the Peflal Code. J U D G M E N T CHIPETA,, J.. The appellant, George Edward Chituma, was sentenced to / and tWefltyconcurrent terms of 40 months ,tespectively on conviction for the months offences of burglary and steaflng c/ss 294(1) and. 265 of the Penal Code. He now appeals. The prosecution?F evidence lies in a narrow compass. During the night of 1st to 2nd September, 1977, the house of one Rogata Malle was broken into and several articles, including a radio cassette were stolen therefrom. The matter was then reported to police. At about 3.00 p.m. on 2nd September, 1977 2 the appellant met one Bonif as Mwakasege (P.W.2) and told him that he badly needed any, amount of money as his wife was ill and that he as ready to pawn his radio cassette for shs, 50/=. P.W.2 3 , who was with one Augustino Mathias (P.W.3) then told the appellant to go and bring the radio cassette. The appellant left and late.r raturn:d with a radio cassette black in colour. As P.W.2 and P.W.3, and one Masimba (who was also present) knew the appellant before, they did not suspect him. So, according to P.W.2 1 he gave th appellant shs. 50/= and took possession of the radio cassctt. But according to P.w.3 1 P.W.2 gave the appellant shs. 2501=. On 16th September, 1977,while P.W.2 was innocently walking with that radio cassette on his way to Hazina area, he was stopped by Detective Corporal Edward (P.W.4) who had ben investigating the burglary caseQ P.0.4 recognized the radio cassette to be that of the complainant. When asked by P.W.4 P..W.2 explained that the same had been pawned to him by the 'appellant in the presence of two witnesses0 The appellant was then charged with these offences. In his defence, the appellant denied having pawned the radio ca5sete td P.w,.2 and said that on 2nd September, 1977, he was at Thurnwa where he stayed from 29th August, 1977 till 4th September, 1977 when he returned to town only to be arrested. One of the appellant's defence witnesses corroborated the appellant's story almost word for word, and another denied having seen the appellant on 2nd September. ... . ./ 2

In his judgment, the learned trial magistrate carefully reviewed the evidence and was satisfied that P.W.2 and P.W.3 were witnesses of truth0 He accordingly accepted thair evidence and rejected that of the defence, and found as a fact that the 2 appellant did pawn the radio cassette to P.W.. Invoking the doctrine of recent possession, he held that the appellant must be held to be the person who broke into the complainant's house and stole the radio cassette and other articles th..refrom, and so convicted him as charged0 It is true, as the appellant points out in hs memorandum of appeal, that the evidence disclosed that the offence was committed on or about 2nd September, 1977, whereas the charge sheet alleged that the offence was committed on or about 8th September, 1977. The question, then, is whether this irregularity can be said to have prejudiced the appllant. I do not think so. Although the charge cited 8th September, all the prosecution's evidence referred to 2nd September and, a fortiori, the appellant's own defence was based on the vi.donca that it was on 2nd September, for that is the period covcrad by his alibi. It would appear to me that P.w.4 1 who apparently prepared the charge sheet, cited 8th Septemb. r because that was the day when the file was given to him to investigate the case. In the circumstances, therefore, it cannot he said that the error in the charge shet occasioned any failure of justice in that the appellant was under no illusion as to what was the material date0 The next, and important question is that of the credibility of withesses, upon which the case turned. According to P.W.2 and P.W.3, they aiew the appellant befro the material date. The ap'allant charged that P O W.2 was lying because in April of that year he a n d P.W.2 quarrelled over a girl—friend. Yet earlier on he had.said that he never 1ew p.W.2 before. As conceded by the appellant, he had no grudge with P.W0 3 The learned magistrate tàok all these matters into consideration before rejecting the defence as "a deliberate lie in a bid to put justice into mockery". The learned magistrate 8W and heard the witnesses, and as I am not able to say that he as plainly wrong, I find no reason to fault the findings of fact. As the apeliant was found in possession of the radio cassette within a clay of the theft, the doctrine of recent possession was correctly invoked. The sentences, though somewhat severe, are not so manifestly excessive as to warrant interference by this court. They are, therefore, to stand. As the same require confirmation by this court, they are •hereby confirmed. In fine, the appeal. is dismissed in its entirety. ~ /,_[ q A DODOMA 8, D. CHIPETA JUDGE /