Juma Dadi Msanga vs Republic (Criminal Appeal No. 87 of 1996) [1999] TZHC 184 (16 August 1999)

KAJI ... · ,j, · . . t. ·l· ·• . . ............... --· IN THE HIGH COURT OF TANZANIA AT MTWARA GRil1IN[iL APPEA.L rm. ·a7·0F 1996 (Coh1:,olidated with Criminal Appeals nos.88 &89/96) f • .,. . . • Orig;inal Qriminal Case Noo 17 of 1996 ot the· Di_strict Court of Lindi at Lindi Before: BiHo t-iandawa, Esq.Rs/ivi!'lgistrate JUill!A DADI l1SANGA. ~ - - - - - - - ;.. - APPELLANT • l, ~ ,• • Versus THE REPUBLIC . ..; ... - - - - - -RESPONDENT JUDGMENT This judgment covers Ctiminal appeals Nos 87/96, 88/96 and 89)96 which were consolidated and heard together, The appellant in Crimiiia.l appeal No 0 87/96 JUMA DADI MSANGA is to be referred to as the 1st appellant. The appellant in Criminal appeal No .. 88/96 BAKARI HASSAN JUMA is the 2nd appellant. The appellant in criihai appeai No. 89/99 SAIDI AD:tNAWA is the 3rd appel1anto ·All 3 were jointly- charged with stealing 6o bags of salt vaiued at Shsl 3150CX)/~ being the property of PWI ADAMU ALLY,. kil pleaded ot guiity to the charge. . . . However at the end of t_he trial the 1st appellant Juma was adquitted of tilieft but was convicted of re-eeiving stolen property c/s 311 (1) o'r the.Penal Code Cap 16 as an alternative verdict; appaently uhdr si 306(1) of the Criminal Procedure Act, 1985, He was sentenced to ·18 Mdrtths imprisonmento The 2nd and 3rd appella..its were found guilty as charged and were convicted accordingly{ They were each sentenced to 2 years imprisonment. All 3 were El.ggrieved 0 Hence these appealso At the.· trial the prosecution adduced evidence to the effect that during the night of 17/1/96 1 while PW 2 ABDALIA ISSA was guarding PWI 0 s salt farm, he 5aw some people stealing that salto Re directed and torch light there and identified two of them to be appellants~ They ran away• He ran after them but the 2ndl.the 3rd they disappeared his

2 When PWI was informed about __ i_t, he went there and found over 60 bags of Salt missing. They were· valued at Shs4315,000/=• He reported the matter to the Police. PW 3 No. D3283 D/dpl AKANDU went to search the 2nd and 3rd accused's houses but he found no sa.lt., Through investigation PW3 discovered on that very day of 18th January; 1996 · that somb of the stolen salt 1:ias ih the prossession of the 1st appellant juma •. • His house was searched and 27 bags of salt were found which PWI identified to be among the over 60 bags stolen the previous night, The 1st appellant was also found in possession of other 15 gs of salt which PWI identified to be among those stolen the previous night. All 3 were arrested ar.d charged with theft. In his defence the 1st appellant Juma admitted to have been found in possession of 1 0 bags of salt., But he said he had bought 37 bags from DW2 HAMIDU ISSA and 3 bags from DW 3 OMAR Hf..SBAN which he transported by using DW4 SALffi'flJ ALLY MUHIDINI I S Land Rover, DW2 and DW3 confirmed to have sold salt to the 1st appellant at 37 and 3 bags respectively, But they sa:ild the salt they sold to him was not of the type ,.Jhich PWI identified to be his. DW4 also confirmed to have transported the 1st appellant's salt from DW 2's salt farm. But he said it was black and dirty :::.nd not white as the one identified by PWI The 2nd and 3rd appellants gave a total denial;. '1. 1 he learned trial Resident Magistrate was satisfied that the salt found with the 1st appellant was among the over 60 bags stolen from PWJ:Cs farm But he was. of the view that since he was not among the thieves whoin PW2 Abdallah had seen steali11.g, he was not a thief but a receiver, He convicted him \vith receiving stolen property and sentenced him to 18 l'fonth.s imprisonmenta As for the 2nd and 3rd appellants, the learned trial Magistrate was satisfied with the evidence of PW2 who had seen them stealing. He convicted them·with theft and sentenced· them to 2 year~ imprisonment each •. They were aggrieved with the conviction and sentence • •• /3 •.

• 3 In their grounds of appeal they repeated moreorless what tliey had stated at the trial, '.1:he learned State Attorney Mr, Mtinangi who represented the Republic at the he.aring of .these appeals did not support the conviction on the ground thEtt the 2nd and 3rd appellant-were not properly • ••~• ~• h • 0 • identified by PW2 Abdallah, and that the salt found with the 1st appellant was not properly identified as it had po special mark. I have carefully considered the evidence on record, the appella..r:1.t' s grounds of appeal, the learned. State Attorney's reply together with the overall circumstances surrounding this case, There is no dispute that PW2 knew the 2nd and 3rd appellants very well as aJ.i- of them had previously worked together in PWI's salt farm. There is ample evidence by PW2 that he saw them very clearly through torch light which was emanating from three torches which the 3 watchmen had. With all these, I am satisfied PW2 properly identified them, and the conditions were favourable for a proper identification. As far as the 1st appellant is concerned PWI described as to how he ident:i.fied that salt to be his. He said it was white, clean, clear and graded first class according to the treatment he had administered to it, He also identified. the so called "viloba: 7 9 'l!he 1st appellant alleged he had bought it from DW2 and DW3 and · .... transported by DW4.· DW2 Hamidu admitted to have sold him 37 bags of salto But he sa.icl that salt was black and dirty. DW3 Omar admitted to have sold him 3 bags of salto But he said he could not remember its olour. However he said that he had bought that salt from DW2 9 s saltfarm where his wife was working. Since DW2's salt farm was producing black dirty salt, and since DW3 purchased that salt from DW2 1 s .salt farm, it goes without saying that it was black and dirty. DW4 Salumu admitted to have transported his (1st appellant 9 s) salt. But he said it was black and dirty Since the 1st appellant was found in possession of that salt which had been stolen just a day ago, and could not give a

4 satisfactory explanation as to how h~--haa. ·come. by_ ~~e same, then he was either the thief or receiver with knowledge as per ··the Principle of the DOC..TRINE OF. REC:Eitr POSSES_SION. " But he was .not a_ thief otherwise PW2 Abdallah would have seen :him at the scene,: He was· therefore properly convicted as a receiver. The sentences meted on the appellants are not excessive. They are hereby confirmed. It is 1.ipon the above reasons that I dismiss all 3 appeals in the their entiretye Court: If ! .' I!· ·-· / .. s .• N. KA.JI JUDGE. 16/8/99. Judgment has been delivered in the presence of Mr 0 Mtinangi lear?ned State Attorney for the Republic, and in the absence do not wish to be present this 16th .. 4 ,: , ' / _.: _/ t .· ' . . s.N~ KAJI JUDGE. 16/8/99. B/C Mr. Ia.dda - RA.