Msumi, J.: In the District Court of Songea respondent was charged with burglary contrary to section 294(1) of the Penal Code and stealing contrary to section 265 of the Penal Code. After full trial he was acquitted on the first count and convicted on the second count. And invoking the provisions I of
A section 38(1) of the Penal Code, the trial magistrate discharged the respondent on condition that he did not commit any offence of similar nature within the period of eight months. The Republic is dissatisfied with the said acquittal and conditional discharge hence the present appeal.
B Prosecution relied on the doctrine of recent possession in proving its case. From the totality of the testimonies of the five witnesses who compose the prosecution case the following facts have been sufficiently established. First it is evident that the house of the complainant one Willigis Haule C (PW1) was burgled on the night of 29th January, 1982. On that day complainant had locked his house and went out for a short stroll. When he returned he found it broken into and a number of household items, including one radio cassette, missing. The matter was promptly reported to police station.
D Another established fact is that sometimes in or about August 1982, the alleged stolen radio cassette was found in the possession of the respondent. It is on record that respondent first sold the said radio cassette to Longinus Nchimbi (PW2) for shs.2,100/=. However, the sale had to be revoked after respondent had failed to furnish PW2 with the original cash receipt for the radio E cassette in question. The alleged abortive sale transaction was conducted by Mussa Bakari (PW3) on behalf of PW2. Then sometimes at the end of August, 1982 respondent approached Daniel Mbawala (PW4) and offered him the radio cassette in question for shs.2,100/=. But after some bargain, respondent agreed to sell it for shs.1,700/= out of which PW4 paid shs.1,600/= remaining the F balance of shs.100/=. This sale was witnessed by respondent's village mate one Cosmas Nyika (PW5). When respondent was arrested the radio cassette was with the said buyer (PW4).
G When acquitting the respondent of burglary the learned trial district magistrate gave quite a startling argument. He said:
.... Other five public witnesses did not say anything about the accused person for the first count to break the house of the complainant. It is illegal to convict any accused person from (sic) the suspicion evidence like the i H nstant case ....There is no any public witness who saw or witnessed the accused person breaking the house of the complainant on 29.1.82.
I I find it hard to believe that the learned trial magistrate is ignorant of the doctrine of recent possession. It is clear from the evidence that respondent was found in possession of part of the property
stolen from the complainant when his house was burgled. This was about eight months after the A commission of the said offence. Briefly the doctrine provides that if a person is found in possession of property recently stolen and gives no explanation, depending on the circumstances of the case, the court may legitimately infer that he is a thief, a breaker or a guilty receiver. Such inference may B be drawn to uphold any offence however penal it may be. Thus in R. v Bakari s/o Abdallah [1949] 16 EACA 84 it was observed:
that cases often arise which possession by an accused person of property proved to have been very recently C stolen has been held not only to support a presumption of burglary or of breaking and entering but of murder as well, and if all circumstances of a case point to no other reasonable conclusion the presumption can extend to any change however penal. D
Thus it is wrong, as the learned trial magistrate appears to think, because there was no witness who claimed to have seen the respondent breaking into the house of the complainant it necessarily mean that the first count of burglary could not be upheld. There is ample evidence which was quite rightly E believed by learned trial magistrate that respondent was found in possession of the stolen radio cassette about eight months after the commission of the burglary in question. Respondent did not offer any explanation, let alone a reasonable explanation, how he came to possess the same. Instead he just denied to have anything to do with the said radio cassette. It would appear that the learned F trial magistrate was not impressed by this denial hence this explains his convicting him of stealing the radio cassette in question. Now if the learned trial magistrate was convinced, and quite justifiably so, that respondent stole the said radio cassette, and since the said radio cassette was G stolen after the house of the complainant was burgled, it is logically and legally imperative that respondent should be held the burglar of the said house. Respondent could not be held responsible for the theft of the said radio cassette and on the same breath clear him of the burglary which occasioned theft in question. H
Perhaps respondent could have been acquitted of both offences and in substitute convict him of receiving stolen property contrary to section 311(1) of the Penal Code. The question is whether the period of about eight months which elapsed from the commission of the said burglary and stealing I to the time when respondent was found in possession of the radio cassette in question is recent enough
A to justify an inference that respondent is the actual burglar and thief. There is no general rule in determining this question. My learned brother Katiti, J was audibly clear when he remarked, in Bulale s/o Mabubu v R. Cr. App. No. 360 of 1977, Mwanza. Registry:
B ... But as to what time is near enough to be recent, no acceptable general rule can be given, for the period within which the presumption can operate will vary according to the nature of the properly stolen, for even two months for articles that can easily change hands were not sufficiently recent to raise a strong C presumption against the accused in Shabani s/o Juma v.R. (1953) 20 EACA 199, and yet three weeks were sufficiently recent in the case of possession of stolen radio in the case of William Maziku v R. [1970] HCD 174.
D I am of the opinion that taking into account the nature of the alleged stolen property - a radio cassette - I think eight months are too long for the doctrine to be invoked. It is quite possible that during this period the said radio cassette might have changed hands. Hence the only irresistible E inference is that respondent is a guilty receiver. When he came into possession of the said radio cassette respondent knew that it was a stolen property. He could not have been an innocent receiver. Hence accordingly respondent is acquitted on both counts but in the alternative he is found guilty and convicted of receiving stolen property contrary to section 311(1) of the Penal Code. F Because of this holding I find it not necessary to say anything on propriety of the trial magistrate's order of discharging the respondent conditionally under section 38(1) of the Penal Code. In conclusion this appeal is allowed.
G The trial court's findings are quashed and in substitute accused is found guilty and convicted of receiving stolen property contrary to section 311(1) of the Penal Code.
H Appeal allowed.
A