Hussein Abdallah vs Republic (TDR Criminal Appeal No. 32 of 1978) [1978] TZHC 356 (1 January 1978)

IN THE HIGH COURT OF TANZANIA AT TANGA V (Tanga Registry) V V V APPELLATE JURISDICTION V V V V TDR CRIMINAL APPEAL NO0 32 °"VV 1978 V •' V V V (Original Criminal CaseNo. 73 of 1978 of the District Court V of Handeii District at Handni) • V BEFORE: M.H. BAKARI, 'ESQO', • V District Magistrate HUSSEIN' V ABDALLAH : : :: : : : : : : V: :: : : : : : APPELLANT V V V (Original Accused) versus THE flEPUBLIC : V : :V: : : : : : : : :: •.::::: : : RESPONDENT V V : ( Original Prosecutor) V CHARGES: Burglary and theft - contrary tpsçtions294(1) V 'V and 265 of the Penal Code,' respectively0' V V V •'V VVV UDGMEVNT NYALALI, C.J. - This criminal appeal originates in the V District Court of Handeni District wher the appellant Hussein V Abdalläh was jointly charged and conicted,as the second accused, with another person with the offence of' burglary - contrary to section 294(1) of the Penal Code in the first count, and theft - contray to section 265 of the same Code in' the second count y and they were each sentenced to three years' imprisonment on the first count tthd'&r the Minimum Sentences Act, 1972,'and twelve months' imprison- ment for •-the second count.. The sentences were directed to run concurrently0 The V lower court further directed the appelJ.ant V Underthe Minimum Sentences Act, 1972 7 to pay compensation to the complainant 'amounting to shs0 257/50. The appellant, who was the second accused at the trial in the District Courtwas aggrieved by the convictions and sentences. and the order for compensation and hence this appeal to this Court0 The other persor who was charged,: V as the first accused, is not , V appealing 0 The present appellant, in his memorandum of arpeal,' V elected not to appear or be represented at the hearin Z his appeal. The Republic was,.howVever, represented by Mr. Sekule, learned Principal State Attorney. V .'../2 ' V

• 2 I have carefully examined the evidence adduced on both s!des et the trial in 'the District: Court, the judgment of the trial cou:t, t:.e memorandum of ppeal' •submitted by the appellant to this Cotrt and the brief oral submissions made by the learned Priic.pl State Attorney at the hearing., of this appeal, and it seees there is no dispute between the parties, accordinç to the evidence, thatduring'The night of the 26th Marchi 1978, the dweil.ng houë"of was b:"oken into and various properties of hers 'inciuding three bed.-sheets, one blanket, one jacket, one /1 towel a:d e pair of' ladies' shoes were stolen fro,her. Furthermore, there :s no dispute that on the 28th March, 1978, the dwelling house of the rs accused, who is no: .appealing' was searched and various popeties were found therein wh.ch were subsequently identified by Pii: being among the p:..prties stolen from her two days..,. pr - !o.:(. 'Again, there is no Us,pute that on the 18th April, 1978,, tha: ic 'dome twenty—three days after the butgiary and theft çf Por1' ;l1.ng house, the d.:Uing house 'of the present appe1ar)t was sea: -thed and various suspoc'ed properties including three besheets one blanket, one ja:het,'one towel and a single dëJ ;Inoe were found with th appellan.'The appellant, and the oc'j rtie found with him taken to' the police station w tellant was subse 'tly charged with these offences. 1'lth reardto'matters hare in dispute in this case, it Is the p:osecution case as laid out at the trial in the District Court ta -: the suspected art1.c.es found with the appellant in his dwe...i.ng house on the 18th April, 1978, were among.those stolen from P.W.l's dwellin2 -" on the 26th March, 1978. On the other hand,it wac the defence case of the appellant stathd h.s trial in the Dst' .:t Court that most of the ' :rt.cles had been sold. to him by the first accused and some f:eely given to him by the first accused. .f.ist point for con:? 'eiation and decision in this case, is wheth the suspected arte1e3 found with the appellant at his dwel3,r hse are among the priper±ies stolen from P.W.l's . .

-3- dwelling house 0 P.W,1 sufficiently identified the articles in court by unique marks appearing on the articles. On that basis, I find it as aaqi...that these articles•were among the properties stolen from PW.1's dwelling hp.useo,. The next point for cQnsileration and .decisiqn in this case, is whether the appellant is the peson.who burgled...W.i,'s dwelling house and stole her propertyon the26thrch, 1978. Of course no one saw the actual brgl.er and thief, but one has to consider whether the Doctrine of Recent Possession, under which an accused person who is found in possession of stolen property is presumed to be an offender unless he gives a reasonable explanation as to how he came into possession of the property, cnnot be applied to the facts of this case. It is evident that twenty-three days elapsed between the burglary and theft on the one hand and the finding of the stolen property with the appellant on the other hand, js .eyi..ent.. also that the appellant was found in possession of numerous articles stolen from P.W.l's dwelling house. It is-, therefore, !.my considered opinion that twenty-three days is too recent a period for the appellant to obtain-possession of these various articles by innocent means - particularly becaUse it is highly unlikely that the appellant would have innocently acquired a single ladies' shoe rather than a complete pair of P'.W.l's shoes, I am, therefbre,of the view that the Doctrine of Recent Possession in the present case applies and the appellant is prosumed to be the burgier and thief unless he gives areasonáb1 explanation as to how he cameinto possession of P.W.l's properties, The appellant stated at his trial that he had bought most of these properties from the first accused, and some, including the single shoe, were given to him by the first accused freely. But the first accused in his defence had stated that the properties which were found with him andr which he was charged and convicted, had been left with him for safe custody by the appellant. The appellant, in his cross-examination of the first accused, did not suggest that . . . .14