brown peter kaswela vs republic 1986 tzca 56 28 april 1986

IN THE COURT OF APPEAL OP TANZANIA

AT MBEYA CO RAM? MAKAHE, J.A.| KISANGA. J,.A .. And OMAR, J.A. CRIMINAL APPEAL NO. 4 OF 1986 EROWN PETER KASW3LA.................APPELLANT

VERSUS THE REPUBLIC......................... RESPONDENT (Appeal from the conviction of the High C c w t of Tanzania at Mbeya) ( Mtenga, J,) datsd the 5th day of December, 1985 in Criminal Appeal No, 122 of 1^84

JUDGMENT OF THE COURT 1 »i m p ii i ~ i » i ■ ■ !» 1 ^ ................. ■ OMAR. J tA ns The appellant Brown Peter Kar el ia was charged at the Diatriot Court with the offence of store-breaking and stealing cantrjuy to section 296(1) of the Penal Code, Appellant was found gvUHsy of receiving stolen property contrary to section ?11(1) ot tb# Code and was convicted and stencenced to three year§ imprisonment. In the first appellate court this sentence was enhanqed to five years as the property stolen wa.s assessed to be worth more than $ t000/~ The facts of the case are that on the 9 ^ ApriJ.^ ^tght 54 bags of sugar were stolen from the Regional Trading C^npanyls Godown at Kyela in Mbeya Region, The same night Appel IfUrfc approached P,W^81 a porter, and asked him to take some bags of to a certain house which P,W,8 did. In the morning news of the theft btoke out and police started their investigations, They went to P,Wr4 Jteteac and P , W ^ Florence and asked them if they had any sugar. They agreed they had and went to their houses and brought Jour hal:£ t|aga of sugar which they showed to the police officer (P.W.3). P.W,4 and P«W^5 stated that they ha,d paid 1,000/- for each half bag of sugar and the person who sold them the sugar and to whom they paid the money was Brown the appellant. The two women pointed at Brown the appellant and he was arrested by the polige. Later P.W.J

accompanied by the fell ladder P %W^f went to the house of P.W,6 Sofia wife of one Goodluck and there found 14 bags of sugax, 9 bags of 100 Kilograms each, and 5 bags of 50 Kilograms each, P.W,6 informed the police that it was the appellant who brought those bags of sugar in her house and that he the appellant had sold some sugar in her presence to iUster and Florence P,W^4 and P.W.5. In his defence the appellant denied to have hired P,W,8 to carry sugar any^where, He denied to ha.ve known P.Wt4 and P,W,5 8 ^ to hare transacted ajjy business with them* He denied also to ha.vesent sugaj; to P^W.6 and to be related to her husband as P.W.6 claimed^ Four people were charged for this offence for store breaking, Goodluck the husband of P.W.6 was a.cquitted because the sugar was put in his house without his knowledge and consent# The watohman of the godown was acquitted because the godown was not broken into and the sugar was taken by the same officials of the Company one of whom was convicted of stealing and sentenced to five years imprisonment^ The Counsel for the appellant has strenuously argued in the thre? courts that the incriminating evidence against his client was from the P,W,4» P.W.5 and P.W.6 whom he deems to be accomplices and therefore their evidence is weak and needs corrobora.tion# As for P.W,8 who took the bags to P.W.2's house he was discredited because he was

J3$g»-Jdj3g- heavily and did not know how to coun^Bie courts below found as a fact that P.W.8 knew the appellant that he also knew that he was carrying the sugar to a known house on the orders of appellant, He was held to be a witness of truth, P,W^8 may have missed the number of bags he carried and also was hesitant whether he wa.s pa,id ior it,, ^ely he agreed he was paid Shs.100/- for carrying the bags. These questions of facts were resolved a,t the District Court and the High Court. The question posed for our consideration is who is an accomplice and whether those three witnesses are accomplices. An accomplice is a person who concurs in the criminal design of his collaborators and joins in some way or other in the execution of those designs or is pr'vy to it or adds in some form or other. It is clear tha.t when this crime wa.s conceived the two women buyers of the sugar had no knowledge of it,^;..y were people who had felt the shortage of sugar in the country and needed it badly and were prepared to pay any reasonable price for it. They were in the business of brewing liar’ ir; The offences cf stealing and receiving stolen property were already completed by the time P.W.4 and P.W.5 came into the picture, T >: was then a, question of disposing the property and sharing the loot among the criminals that was being buy it, pursued.'Hie two women were contacted, and solicited

to^and many more customers would have been if the police did not act faat. They were told by the appellant that the transaction wa.s clean; the sugar was allocated to certa,in villagers but the villagers could not be reached as the bridge leading to them had collapsed. So it wac :_;CEiia from heaven so to speak,getting this scarce sugar so easily. P.W.4 and P.W.5 then fell for it and bought the sugaj:, The accepted view of an accomplice does not therefore fit these two people, witnesses were hoodwinked by the appellant just as RTC was hoodwinked by its officials inspite of the presence of a watchman outside the godown and all the looks within and out. P.W.6 on the other an hand may or may not be/accomplice --- received 14 bags of sugar in her house may be an act of 1 y 1 t t. • relative of her husband J I but she may also ha,\ 3 known what her brother in law, the appellant, was up tO| On our part we see no reason to presume that she is unworthy of credit. We a,pprecia.te her forthrightness in naming the appellant who had brought the bags of sugar to a house to keep, and also when she stated that she knew that he the appellant had a much bigger house of his own in the same area in which to store theiUj We must also observe tha.t it is not possible to formula,te in all ca.ses wha.t kind of evidence should be regarded as corroboration; its nature and extent must necessarily vary

with the oir&ums'i;anc©s of ea®h ca.se and of the offence charged, We hold therefore that the testimony of P,W#4» P«W,5 8®$ P,W46 was corroborated by that of P.W.8 that, sugar was taken to the house of P.W.6 on the orders of the appellant and that as P,W,6 had said it was sold there to unsuspecting customers by the appellant. This sugar wa,s proved to be the same sugar stolen from RTC Kyelaj As for the sentence of 5 years imprisonment consequent on the value of the sugar being found to be Shs. 5»000/- and above, this question of fact i,e, the price of sugar had been dealt with by the first appellate court. The value of the sugar was so obviously above dhs4 5,000/-, We find the case against the appellant proved beyond reasonable doubt and so uphold the conviction and dismiss the appeal^ DATED at MBEXA this 28th day of April, 1986, L. M. IIAKAME JU3TIC3 OF APPEAL R, K. KISAHGA

JUSTICE OF APPEAL A. M. A. OMAR JUSTICE OF .APPEAL X certify that this is a true copy of the g r i g Y ^ i • ./ // ( J . HMSOFFE) DEPUTY REGISTRAR,