Eliud Patrick vs Republic (Criminal Appeal No. 38 of 1999) [1999] TZHC 282 (9 November 1999)

IN THJ.:: HIGH OOURI' OF ·l' i..NZJ.-1.NIA AT MBEYA ORIGHlAL JU.tUSDICTIJN (Mbeya Hegistry) CRILHJ . .'..L AH· EAL NO. 38 OF 1999 (From Original Criminal Case No. 15 of 199, . of Mbozi District Court) ELIUD F.4.TRICK o u .o e o o e c ~ o " • • o o e o o • • e D o APPELLi..N'I' VERSUS TdE REFlJBLlC, ~ •••••. '. ....... ,, • • • • • • • • • • • R8SFONDENT . JUDGNNT ·- . . The appella?:1t one ELJ;UD 1?.tRqf.C be0g}'1-_gisrieved by the cl ecis ion of Mbozi District gourt VJ1ich cor.rv.ctE;,d., ~~;_ 9 ent:-n,ded him _a ?-J(-irnurn of . fiv. (5) yars imprisonm,ent, qft@r. being_Jouncl,gulty pf Shop breaking· . ·•-, . . ..•• ,.., .... , - . . . -· -:.•.·.··i; . . . . . .. and stealing c/s;, -296 (1) of th€') PnaJ. ,Code and of Arson C/s. 319 ( a) •.· . ..·.... . ,.~ •.. ,., . 1.--· ..•. --:, _ .., ... . ·. .. ,, . of tn~ sa111e-fepal}:;4,e is_ ·;:·pe~~in_)3.ga.!15t both c()p.v,i.cion md sentenqe. H,e pointed_. out ,Jhre.i:o, gr.qu..~~- oJ appea; W hi$ memorandur,1 of /\ppea1 :·. being:-. 1 •. That., the learne_d. tr:i.al magtst.ratE.. erred in 1aw in . . ;, .. ·. :, admitting ip., evi<;lenc.~ l).e appellant' ,5 purport_ed cau_tioned • •.' •• ,. • • • ; • •, ; • •••_: :, • •,• I.• statement despite persistent resist?,nce to its p .production. : :• 2. That, there was mo sufficient evidence to show that the . appellant was in possess ion of the stolen property. 3o That 9 · ti-ie firi.ding by the learned trial magistrate that .. -: •;· th appet}z,nt had admitted the allegations of the .. _ -\ prosecution because he had chosen to remain silent when called upon to defend himself was a misdirection in law. Thus prayed to have the appeal allowed, convi'ction quashed ands eritencE{' set asideo At the time of the hearing he had nothirig ele to say ·or add-· Resisting the appeal and praying for its dismissal Mr~ Nange;t-a appearing for the Republic admitted that the appellant challenged the production and admission of th8 cautioned statement. However, it was his contention that e.part from the caution stater:,ent there was still evidence to p;;ve that the offence had been cornmittedo It was Nengala' s contention that the evidence of PW.1 who was the Gomplainant and whose sho19 was broken i11to and ti1ings stolen from on 18th day of January 1999 · • • o • o o/2 11111

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• 2 - then the s~_op on fire, and iater identified some of the stolen items which were found in possession of the appellant wassupported by the evidence of PW.2 who saw some items ready to b~ transported.., He said the 2nd accused was found pulling a.cart going to the appellant's house and switched of the lights and gave an alarm so that the ones inside I could ran away o Two of then mane.ged item.s were found therein., FW.5 witness esed the and the recovery of the s b len i terns. This in itself was strong evidence ,against the appellant without even relying . . --·· on the caution statement for he wns found with the stolen i terns w:il.hin a very short period after the theft. It was .his prayer therefore that the appeal be dismissed for want of merit. The, appellant had nothing to say in reply to Mr. Nengela' s submiss ioriii :• 0 Now having gone through the proceedings, judgment '.and the.grounds for and against the appeal one realizes that the facts of this case are very straight forward in which a shop .was broken into, items stolen then i;;et on. fire and the goods reco.vered two days later in th·e possession of the appellant and welJ_ idE,ntified by the complainanto Following .the doctrine of recent possession its obvious that a person found with tei;::ent stolen property is the act,ual thief unless one proves otherwis8. In the case before me the ai)pellant and his colleagues were tri0d to challange this doctrine and therefo_re. the conviction and sentence were proper., . I accordingly dismiss the aj;pE:al and confirm the i=entence of the lower court. It. is .. -so Ordered. 9/11/99 Wambura, · PRM ( B~ ~T. ) • Appellant - ·i!;res.ent in pernon •. :for ?.espondent - Boniface. t . S.A.No Warnbura PRM (Y:::,J.) 6/11/99 · Court: Judgment delivered in open Chambers this 9th day of Noven,ber, 1999 at the presence. of all the parties. Right ofi. Appeal is also explained. , ' S .A.N. \fo.mbura PRM (E.~i.) 9/11/1999.