bahati do haule vs republic 1987 tzhc 104 4 february 1987

AT TABORA APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO.83 OF 1986 ORIGINAL CRIMINAL CAS^ NO.317 OF 1984 OF THE DISTRICT COURT OF, TARORA DISTRICT AT TABORA B efore J.D. 1IAYAYA Esq., DISTRICT MAGISTRATE BAHAT I D/O HAULE............. .......... ....................... APPELLANT' (O rig in a l Accused) Versus THE UtTITTD REPUBLIC. ................................ . . . RESPONDENT (O rig in a l P r o se cu to r ) CHARGE:- ( 1st Count f o r 1st Accused) S te a lin g by Servant c / s 271 and 2o-j o f t.L;; I anal. Code Cap. 16 V o l . l o f the Laws. ( 2nd Count f o r 2nd and 3rd a c c u s e d ). Receiving S tolen Property c / s 311 (1) o f the Penal Code Cap.16 V o l . l S o f the Laws. JUDGTIENT. CHIP ETA, J . The a p p e lla n ts Bahati d /o Haule, was sentenced to f i v e years imprisonment on being c o n v ic t e d o f the o f f e n c e o f r e c e i v i n g s t o l e n or u nlaw fully acquired property c / s 311 (1) o f the Penal. Code by Tabora D i s t r i c t Court. She now appeals through her le a r n c . advocate, Hr. Ua.i r ,. The evidence adduced by the p r o s e c u tio n at the t r i a l was th at during the ni,;ht o f 8 th /9 th July, 1984, the Tabora D i s t r i c t R e g i s t r a r 's o f f i c e was broken in t o and two ty p e w rite rs, a t a b l e fan, and o f f i c i a l stamps with a t o t a l valu e o f Shs. 63,420/= were s t o l e n therefrom . , The n a tt e r was then re p o rte d t o P o l i c e . , On 10th July, 1984, D etective-S ergean t Nyamlinga (P.W.4) r e c e iv e d inform ation that some s t o l e n a r t i c l e s , were ly in g in the a p p e l la n t 's "Uth -! search warrant, P.'7.4 went t o the house in a u estion in which the appellant and her c o -a c c u s e d , who was a c q u itte d , used to l i v e , but in d i f f e r e n t rooms. The search was conducted by P . ’7.4 in the presence o f the a p p e lla n t, her c o —accused, and t h e i r ten—c e l l lea d er (P .W .l) Nothing was found in the room o c c u p ie d by the a p p e lla n t 's co -a cc u se d ; but on sea rching the room i d e n t i f i e d t o be that o f the a p p e lla n t, a ty p e w r ite r was found th e r e in , and th is was subsequently i d e n t i f i e r t o be one o f the p r o p e r t ie s s t o l e n from the D i s t r i c t R e g i s t r a r 's o ffic e . On being asked about i t , the a p p ella n t s a id that she di,, not know where her b o y - f r ie n d g o t i t from and claim ed that, she knew nothing about i t . The appellant and her c o -a cc u s e d were th^~ a r r e s te d and charged a c c o r d in g ly . . . . »/ 2 • I'-, her d e fe n o ■?, the ~ p p c l i e n t 1n c o -a c c u s e d sa id that the com in which the ty p e w rite r was found belonged to the a p p e lla n t . In her defence the a p p e lla n t sa id that room belonged to h er c o -a c c u s e d and that c o - a c c u s e d 's husband who had a gu est l i v i n g in th at room. She e a l l o d h er fa t h e r as her w itn e ss. Her f a t h e r c o r r o b o r a t e d the a p p e l l a n t 's story on the q u estion as to who used ■to occupy that room. A ft e r evalu atin g the evidence on r e c o r d , th e lea rn ed t r i a l d i s t r i c t m a gistra te was s a t i s f i e d and found as a f a c t that the room in which the ty p e w rite r was found belonged to the a p p e lla n t , and from hex’ conduct and subsequent d en ial regard ing the occupancy o f the room, the learned m a gistra te i n f e r r e d that the a p p ella n t knew o f the e x is te n c e o f the ty p e w rite r in the room and a l s o knew or had reason t c b e l i e v e that the same had been s t o l e n or f e l o - n i o u l s l y o b ta in e d . "!e a c c o r d in g ly c o n y ic t e d h er as charged. During the hearing o f t h i s appeal, Mr. Maira submitted that the fin d in g o f the t r i a l c o u r t that the room in q u estion belon ged to the a p p e lla n t was not j u s t i f i e d on the evidence in that th e re was a c o n t r a d i c t i o n between the evidence o f P. W. 1 and that o f th e a p p e lla n t and her fa t h e r , and that, P. W. l ' s evidence was a bare a s s e r t i o n without any b a s i s . Secondly, Mr. Maira submitted, th at the in g r a d ie n ts o f the o f f e n c e had not been e s ta b lis h e d f o r , in h is subm ission, th ere was no evidence o f r e c e i p t as the a p p e lla n t , he claim ed, was a stran ger in the room in which she only used to v i s i t a b o y - f r ie n d ; that th e r e was no p r o o f o f knowledge th at the a r t i c l e had been u nlaw fully obtained; and that th e r e was no eviden ce th at she had c o n t r o l o f the room. In Mr. M aira's subm ission, the c o n v i c t i o n was based on the weakness o f the defence r a th e r than on the stre n g th p f the p r o s e c u t i o n 's c a s e . Mr. Rut eng e, learned s t a t e attorney f o r the R epu blic, subm itted th at the c o n v i c t i o n was j u s t i f i e d . In h is subm ission, the eviden ce o f P*W.l was sup ■■or-".'1 by thc>+, o~p t he a p p e l la n t 1s c o -a c c u s e d and the f a c t that she was found in the room. Re added that the a p p e l l a n t 's d e n ia l o f ownership o f the room suggests knowledge or b e l i e f on h er p art that an o f f e n c e had been committed. There i s ample a u th o r ity f o r the p r o p o s i t i o n that an a p p e lla t e c o u r t ought to be slow in impugning fin d in g s o f f a c t by a t r i a l Court, and that i n t e r f e r e n c e would only be j u s t i f i e d where i t i s p l a i n that the t r i a l cou rt m is d ir e c te d or n o n -d ir e c te d i t s e l f on the eviden ce or where i t i s oth erw ise c l e a r that the t r i a l co u rt has c l e a r l y gone wrong. There i s a l s o ample a u th o rity f o r the p r o p o s i t i o n that a f i r s t a p p e lla t e c o u r t has a duty to r e -a s s e s the evidence on r e c o r d • . •. /3 • - 3 - .& conie to i t s own c o n c lu s io n s th ereon, s u b je c t to the fo r e g o in g p rin cip le . ( See Pand.ya v .11. , (1957) S. A. 336, and cases r e f e r r e d to th e re in ). In the presen t ca se, the f i r s t s e r io u s bone o f c o n t e n t io n on the f a c t u a l s i t u a t i o n i s as to who OYffied or used t o use the room in which the s t o le n p rop erty was found. In a r r iv in g at h i s f in d in g that th e room belonged, to the a p p e lla n t and that she used t o use i t with her "boy-friend, the le a r n e d t r i a l m a g istra te r e l i e d on the evidence o f the t e n - c e l l le a d e r , P .W .l, and he d is b e l i e v e d the ap p ella n t and her witness whom he d e s cr ib e d to be a lia r. Having c a r n f u l l y pcf'*1’ 0 + , ie evidence on record, I am unable t o a cce p t TTr. Maira'•'s submission that P. t y . l ' s evidence as t o who owned or used to use this room, in d isp u te was a bare a s s e r t i o n with no b a s i s . r:'ot only was P. W. l a . c e ll-le a d e r of the a p p e lla n t but a ls o her neighbour. 'Besides, P.'-T.l’ s evidence does not stand alon e on th is p o in t ; th ere was a ls o the evidence o f P . Tf . 4 who s a id that the ap p ella n t h e r s e l f showed them the room and they found her th ere. The ap p ella n t at that p o in t d id not say th at she did not own the room. She sa id that she did not know from, where her b o y - fr ie n d got the typewriter. C le a r ly , t h e r e f o r e , her subsequent d is c la im e r o f the room must have been an afterthrought. As f o r the evidence o:f the a p p e l la n t 's fa t h e r , the lea rn ed t r i a l m a g istra te, who had the opportun ity o f seein g and observing th e w itness as he gave evidence, found him to be a l i a r . I can see no reason f o r impugning that o b s e rv a tio n . Indeed, t h is •witness would have good reason to l i e as he was an i n t e r e s t e d w itn e s s . For the fo r e g o in g reasons, and on the b a s is o f my own e v a lu a tio n o f the evidence, I f u l l y agree with the lea rn ed ~';r m a g is t r a t e 's fin d in g th r J~ f '.o room in q u estion belonged to the a p p e lla n t who used to use i t with her b o y - fr ie n d . The next q u estion i s whether the ap p ella n t knew or had reason t o b e l i e v e that the ty p e w rite r in qu estion had been s t o l e n or f e l o n i o u s l y o b ta in e d . The lea rn ed t r i a l m a g istra te s p e c i f i c a l l y asked h im s e lf that q u estion and answered i t in the a f f i r m a t i v e . I t ip , I th ink, s e tt le d ^ that knowledge in such c a s e s , as with i n t e n t io n , i s not always cap able o f p r o o f by d ir e c t evidence or p o s i t i v e o v id e n ce . I t i s Of%en ixiperred from overt a c ts and a l l o th e r surrounding circum stances o f the c a s e . ( See Mwangi Wjoroge v . R. , (1963) S.A. 624; and I d i s / o Waziri v . R . , (1961 E. A. 146) . I would add th at the nature o f the a r t i c l e in qu estion i s one o f the matters t o be taken in t o account in determining the e x is te n c e o f knowledge or b e l i e f . - 4 - In *uhe p resen t c a s e , the ty p e w rite r was found in the a p p e l la n t ( s room over whi cii she had c o n t r o l . A ty p e w rite r i s not ar common domestic u n te n sil whose p resen ce in a room can be sa id to. bo ta f o r g ra n ted . "Then th e a p p e lla n t was asked about i t , she ^eni ed any knowle dg e of i t . Indeed» sh e denied being the occupant of that room., and at one sta g e she s a id that s ’:ig d id not know from where her b o y - f r i e n d got i t . On the b a s is o f the o rsg o in g , I r e s p e c t f u l l y agree with the le a rn e d s t a t e a t to r n ,thy Jj g u i l t y knowledge was c l e a r l y i n f era b l e . The c onv ic ^ , tb gr e f ore, was f u l l y j u s t i f i e d , As f o r th e sant ence, i t vy- s tko s ta tu to r y minimum, and sc th s a p p e lla n t cannot b e h e a l’d to complain ag a in st i t . In the upshotj t h i s aD“ e.nl i s hereby dism issed in ita e n tire ty .