19880203 TZHC Dar es Salaam

IN THE HIGH COURT OF T!JfZANIA .AT DAR ES SALJ1..t'1.M . i APPELLATE JURISDICTION HIGH dOURT CRIIIHN/.L APPE.AL NO. 94 OF 1987 C/F 117 of 1987 ORIGIN.Ui CRIMINAL CASE NO. 483 OF 1985 OF THE DISTRICT COURT .OF MOROGORO DISTRICT AT MOROGORO Before F': DANIEL, Esq·~, Resident Magistrate B°;3247 p·~c·; RUFO SALUM ~ .ti.NOTHER • • • •• • ••• •. "° a.J.,PPELL.lU\lT ( Original Accused) versus THE UNITED REPUBLIC •••••••••••••••••••••••••••oRESPONDENT (Original Prosecutor) JUDGlVIENT ··- KYANDO, J~ The two appellants, •B';3247 P .c·; Rufo s/o Jal um a;nd C 2162 PO Ramadhani,- were convicted of offences charged in three counts under the Penal Code~ On the first count they were convicted of entering into a dwelling house with intent to commit an offence c/s 295 of the Penal Code; it being alleged that on the 18th of July, 1982, at s;oo p;m·;, at Kiwanja cha Ndege, in Morogoro Town- ship, they entered the house of John Severin with intent to commit an offence therein'; On the second count they were convicted of stealing c/s 265 of the Penal Code, it being alleged t~at on the date and place mentioned in the first count, after having entered the house of John Severin they stole clothes of the va_lue \ of shs;s,ooo/= and cash shs·:10,000/= the property of the said John Severin~ On the third and final count they were convicted of demanding money with menaces c/s 292 of the Penal Code, it being alleged that on the 18th of July, 1982, at about s·~oo p·~·m-;; at Mji Mpya, Morogoro Township with intent to steal they did demand with menaces from Kassim. Salehe cash shs'~3, 500/:i:, National Radio Oassete of the value of shs':3,000/= ·; They both pleaded not guilty to the Charge but the District Oourt(Mrs Daniel R~r,1';:) found them guilty as charged and, as already shown.;, convicted them of ·the offences chargad': They were o~iginally charged with a third person, ]{N/;5973 Mohamed: This latter person has not appealed·: . The appellants have filed separate appeals;·· for the purpose of these proceedings, the appeals are consolidated: · At the hearing of this appeal the Republic was represented by Miss Korosso, learned State Attorney'~ The appellants he.d stated in their petitions of appeal that they did . not wish to be. present at the hearing of their appeals·~ 2 - . ....k,... The evidence for the prosecution shows that ,::1. between e.vu · · on . •. ' 9:00 p';m'~L18/7/82 the appellants (both policemen) went to the houses of John $evijrin (Pw5) and Kassim Salehe (PW?) at Kiwanja Cha Ndege and Mji Mpya respectively, in Morogoro township, to· conduct searches·: They had dogs and guns'~ At the first house they entered and searched in the presence of Betty John (PWl) and Jane John (Pw4) amongst others'~ ·.The former is John Severin 1 s wife while the latter is his daughter·~ These witnesses state.d that the. appellants, when they arrived, said they were searching for contra~ band goods·; They ·searched the house and took various items of clo- thing,s- a,nd cash shs~l0,000/=~ They said they were talcing them to the Police Station~ They then left~ At 9·;00 p~tn~ the appellants arrived at the house of Salehe Kassim~ They said they wanted to search the house as they were looking for a radio and. a-record player which, they said, had been stolen in Dar es Salaam; They then searched the house and took a radio Cassette and a record player·~ They ordered the owners to go with them at the Police Station but on the way they told them to give them 10,000/= so they could release them'; The victims said they had no money. In the end the appellants agreed to accept 3,500/= which they took; Then the next day the complainants went to the Police Station to inquire about their items which the appe·11ants had taken awaY from them; They were told that there were none of those items there'; Reports were made to senior Officers of the Police who investigated the matter·; The radio Casette and record player were recovered~ though not from the appellants~ The radio casette was recovered from the .shop of one Sakaya on 25/7/82'~ The player was recovered in Tanga'~ Saka.ya said both the record player- and the radio Casette had been sold to him by one Mashaka Msisi'~ The latter said they were sold to him by the con-rict who has not appealed·~- There is also evidence that after the matter started being investigated into the second appellant p·;c·; Ramadhani met Hussein Salehe (J?WJ..O) at the Police Station·; The second appellant told PVllO that he was one of the Police Officers who _searched his house on 18/7/82~ He ( the, 2nd appellant) asked PWlO not to report the matter to the police; He promised to go to PW10 1 s house on. 3/8/82 to settle the matter"; 9n 3/8/82 they all went to PWlO' s house': They - I confessed before PW+9 and PW? that they were the ones who had searched the house on lf3/7/82 and taken the radio• casi.ette and record. pla,yer~ said they , · They Lwould return the items to PW10 and J:W7'1 ... Finally an identification parade was arranged: The appellants were identified by all the witnesses as the ones who had searched the houses of John Severin and Kassim Sale he and talrnn the i terns as shown above·; In his defence the first appellant, B3247 p·;o:· Rufo Salum, stated that on 18/7/82 they were on patrol duty in town from t3'~00 p'~·m·; They went to Kiiranja Cha Ndege and met ...John Severin ort they way;· He was carrying a parcel; He was with his daughter';'. When they questioned him concerning the parcel he. was rude to them~., They ordered him to open the par?e1'; .He comp:l;iediimThey found different kinds of clothes inside·; They ord~redLto put the clothes in a. bag -'tiich th~y. ( John Severin and his daughter) were carrying and allowed them to process· on their jo\1,rney'~ ,They ( the appellants) at the end of their patrol returned to the PoliGe Station, at the F':F·:u·; Unit~ There they were told by the o';'c;s; that they had gone to John Severin 1 s house where they had entered and stolen clothes and 10,000/= ·; They were searched but nothing was found on them'~; The next da,y the o·~c·;s·; searched their houses but nothing concerning th.is case W8J3 found'; On 25/7/82 they were called again and the o'~c~s~ said they had searched S alehe 1 s house where they had taken a ro.dio Cas?tte, a record player and shs·; 3,500/= They denied this: Under cross-exa~ination by the Prosecutor, the first appellant stated in part:- 11I went to the police Station to record statement, what I am saying here .is true; What I wrote at the Felice Station was lies•;'u He stated also that they did not go to Mji Mwema ,,, and that the convict who has not appealed was not with them on the material night; they were only two~ The second appellant gave substantially the same account about their movements on 18/7/82 as told by the first appellant'~ The only discrepancy is that while the first appellant said they met John Severin with his daughter, the second appellant said the person they met was a woman. They both stated that they had dogs when they were on patrol. This, in sum, weJ:> the evidence for both the Prosecution and the de£ence upon which the learned trial Magistrate convicted the appellants'~ On this evidence the point which the learned Magist- rate had to determine w0;3 which of the two stories, the prosecµtion story and the defence story, was true'~ She found that the pro- secution story was the true story and convicted the appellants: On going through the evidence myself, I am satisfied that she was entitled to arrive at the cop.clusion she arrived at·; The prose- cution evidence is so cogent and over whelming against the- ·• ••• -~/4 appellants th1:,t I fail to see how she could not have convicted them'~ I find that the appellants were rightly and properly convicted of the offences charged and I dismiss their appeals to this cou:rt·~ The sentences imposed viere deservedly earned by the appellants~ I hereby confirm that on the first count (i';e'~ 5 years imprisonment) which incidentally, requir~: confirmation ,,, by this court, ... .JUDGE ,·~2'~88