19700701 TZHC Mwanza2

IN THE HIGH COURT OF TANZANIA (In th& District Registryo) AT MWANZA. •' APPELLATE JURISDICTION. CRIMINAL APPEAL NO6 323' OF 1970 Original Criminal Case No. 2 of 1970 of the District Court of Mwanza District at Mwanza' Before E.H6Mbuya, R,l. VINCLT MUSeA. . . . . . . .- . . . . . APPELLANT (Original Accused.) versus - TEE REPUBLIC. • . . e . . . . . . . RESPONDENT (Original Prosecuto) CHARGE: 2 Counts Burglary C/S 294( 1 ) of the Penal Code. 2 Counts Stealing c/s 265 of the Penal Code. 1 Count Shop1reaking and Stealing c/ss 296(1) and 265 of the Penal Code. 1 Count Person found armed with housebreaking implements c/s 298(c) of the Penal Code. 1 Count Escaping from lawful custody c/s 116 of the Penal Code. JUDGMENT. ONYIUKE, J. The appellant, Vincent s/o Mussa, was tried on c 7—count charge before N.S. Mnzavas Esq., Senior Resident Magistrate, Mwanza (as he then was). Li Counts (1) and (2) the appellant was charged with burglary of the dwelling house of Mohamed s/c Ismail (count 1) and stealing various articles therefrc. (count 2) contrary to sections 294(1) and 265 of the Penal Code respectively. Count (3) charged the appellant for being found armed with housebreaking implements C/S 298(c) of the Penal Code, Counts (4) and (5) related to .burglary ofand stealing from,the dwelling house of Salum s/o Iddi, Count (C) dealt with shop breaking and stealing c/s 296(1) and 265 of the Penal Code. Finally Count () charged the appellant with escaping from lawful custody c/S 116 of the Penal Code. The appellant was convicted on all counts exc( , i- 1 count (6) and committed to the High Court for sentencing. He now appeals to this Court. I shall deal with counts (i), (2), (4) and (5) together as they appe - :- tohave arisen out of the same transaction. Mohamed s/c Ismail and Salum s/o Iddi occupied separate rooms in tne Same uilding at 60 Uhuru Stret', Mwanza. In the late hours of the night Of 13th October, 1969 their rooms were broken into while they were away. Mohamed Ismail was away on duty in a Cinema iall where he was an attendant. He had locked his room before.leaving. Salum Iddi (F.w.6) 'had left on safari to Nagu on the.l3th Octobei' and-s had likewise locked his room. The thief, after he had broken and entered the rooms, removed a box containing assorted clothes. He also removed other items, to wit, 2 cooking pots, tea cups bedsheets, sun glasses and sundries. This was from the room of P.i.5. From the room of P.W.6 (who had taken the precaution of removing most of his belongings else- where before he loft on safari) the ttief romoed a basin and two cups. Lt 5 a.m. in the morning of the 14th October (that is within a matter of hours after the burglary and theft) P.W.4 (Police Constable Idrisa) encountered the appellant at Lg- ando Hill carrying a heavy bundle and a torch. P.W.4 became suspicious and asked the appellant where he was coming from. He replied to say that he was coming from his house No.13 Mitimirefu Street. P.W.4 then took him to that house and inquired from the landlord whether the appellant lived there. The landlord denied and said he did not know t112 appellant. P.N.4 then took him to the Police Station. At 6.3 0 a,m.hat morning P..5 came to the Police Station to report that his room was burgled and things stolen therefrom. P.W.5 was thereupon shom the bundle found on the apcllant. He identified many of the things belonging to him which had been removed from his room earlier in the night. P.N. 6, on his return from safari, identified a basin and 2 cupS' from that bundle found on the appellant. In his defence the appellant stated that he returned to Mwanza from his home town husoma on 1215 a.m. in the night of 13/14th October 19. Because it was too late he decided to pass the night at the bus stand. lt about 6 a,m. in the morning of the 14th he left the bus stand for his houe carrying his bundle of clothes an.i some food items0 He was stopped by ti Police. He claimed ownership of all the tings found on him and producod 3 receipts to account for some of the things ho was carrying. The loarneC magistrate (as he then was) reviewed theevidcncc, rejected the defence and convicted the appellant on those 4 counts - counts (1)(2)(4) and (5). The appellant has attacked his conviction on these 4 counts. The issue in this respect of th case is one of identification of the things alleged stolen and the identity of the thief. It was not in dispute that tile rooms of P.W.5 and P.W,6 which were locked were forcibly opened and things removed therefrom. If the apellant was rightl convicted on counts (2) and (5). (which dealt with stealing) then, on tile doctrine of recent possession, he could be convicted on counts (1) and(4) as the burglar. I want to comment with respect on the way the othibits were tendered in this case. The whole bundle recovered from the appclian was with the exception of a basin and 2 cups.. tendered in bulk as Exhibi± B. It contained not loss than 40 items ranging from shirts, trousers, shoots, tb, socks, ladies handbag, sun glasses to sugar bowl, tea pot, sufurias, knifo tin of powder and even a hammor. Ilthough P.W.5 was alleged to identify many of the things from this bundle yet this fact did not justify the lumping of all these things as a single exhibit. In the first place the appellant was not charged with stealing all theso tni:..i Secondly P.W 0 5 did not identify all the contents of Exhibit 'B'. Thirdly it would create much difficulty in ordering the disposal of the contents of Exhibit 'B' to the owners at the conclusion of trial. Fourthly, it makes it very difficult to follow the proceedings in this case. It would have boon much batter to have exhibited the items separately as they were identified by the witnesses. This does not, however, invalidate the conviction, as the learned magistrate (as he then was) convicted the appellant on the things actually identified. P.I.5 9 in a way that compelled credence, identified the following items as his property, to wit. 3 shirts, 2 pairs of short trousers, towel, handbag and a pillow. JlthCu.i: he was alleged to have identified more items in the Police Station the prosecution unfortunately did not lead him in his evidence to idonti±y th.. in court. P.W.6 also successfully identified his basin and 2 cups. He had put a special black mark at the end of the basin and the cups had green patches on them. The appellant produced 3 receipts to show he bought the things he was found carrying. To start with, the 3 receipts could not possibly account for the 40 odd items he was carrying0 Secondly, the receipts could not be related to any of the things claimed by the 14W.5 and P.W,6 as their property. There was ample evidence to identify some of the t1ire the appellant was carrying as stolen proporty,to support and justify the conviction on counts (2) and (5) relating to stealing. The fact that the appellant was carrying these things within a matter of hours of the burglary amply justifies his conviction on counts (1) and (4) also. 3rd Count: This count relates to being found with housebreaking implements, to wit, a hammer and a torch. The ease for the prosecution was that a hammer was found in the bundle (Exhibit B) which the appellant was found carrying in the early hours of the morning of 14th October. T1i: hammer was found among thins which had been sufficiently identified as stolen property. Hammer is an instrument eminently suitable for housebreak-- in.. The appellant, on the other hand, in his defence, claimed to be a carpenter although at the material time he was unemployed. The learned magistrate did not direct his mind to this fact nor was there any evidenc'.. to disprove the fact. Hero then was an instrument which is commonly used for a lawful purpose but wtiich may become an implement of housebreaking. The question in this case was whether it was the intention of the appellant to use this hammer for the purpose of housebreaking. Since the appellant stated he was a carpenter., and it was not disputodthe appellant had t established ,prima facic 1 that he had a lawful excuse for being in possessian of the hamrnàr. The onus was shifted on to the prosecution to prove frem . other circumstances of the case that the appellant was not in possession of the tools for an innocent purpose but for the purpose of housobreaking There wire such other circumstances in this case to prove that the appoll:n had the hammer for the purpose of housebreaking, circumstances, to wit 2 ike -3- fact of burg1ry, appellant's possession of the goods removed from the burgled house within a matter of hours of the burglary and the hammer being found in the bundle containing the stolen property at a very early hourf of the morning. The conviction on count (3) is therefore upheld. j: Escaping from lawful custody. There was ample ovidono of escape from lawful custody0 On 12/11/69 remand prisoners including the appellant were handed to P.W.2 to bring to court in a Bedford lorryo Appei- jumped out of this lorry and ran away. P..2 blew his whistle and gave With the help of others the appellant was arrested. The learned magistrate was justified in convicting as charged. The learned State Attorney has, quite rightly, raised the issue of misjoinder of offences. Section 136(1) of Criminal Procedure Code deals with joinder of offences and provides that - Unny offences, whether felonies or misdemeanours, may be charged together in the same charge or information if the offonces charged are founded on the same facts or form or are part of a series of offoncas of the same or similar character." The learned State Attorney contends that the offence of escape from lawful custody is not similar to the offences in the other counts of the charge on which the appellant was tried nor was it founded on the same facts nor did i form part of a Series of offericos of the same or similar character. Furthr- more, the facts on which the other counts in the charge were based happenc. between 10th and 14th October 1969 whilst the offoncGt under consideration took place on 12th November 1969 in totally different circumstances. He concluded by submitting that the appellant might possibly have been prejudio. by this misjoinder0 I accept the contention that the count of escape froi lawful custody should not have been joined with the other counts as they were dissimilar in character and were not founded on the same facts. The question I have to consider is whether it occasioned a failure of justice (see s.34 6 c.r.c.). The facts relating to count 7 (escape from lawful custody) were simple and their introduction did not in any way tend to confuse the facts relating to the other counts. The learned magistrate kept the issues quite separate in his judgment and dealt with each count by reference to the particular evidence tendered in support. In the circumstances, there was nu failure of justice occasioned by the misjoinder in this case. I dismiss the appeal against conviction. I shall now proceed to consider the question of sentence. MR. KALUNG.A: Appellant has 11 previous convictions including stealing (6 burglary (2 times) unlawful - wounding (once), tradin without licence (1964) - crimes committed between 1957 to 1968. His lest conviction was in 1968 for stealing and he came out of prison in October 1968. Within a year he started again. Now he has been found guilty of 2 burglaries and 2 acts of stealing. Burglary comes under Minimum Sentences Act. Maximum sentence for burglary c/s 294(1) 10 years stealing c/s 265 5 years U possession of housebreaking implements c/s 298(b) 7 years H escape from lawful custody 2 years ALLOCUTUS: I ask Court to be lenient, Although I had some previous convictions the property found on me belong to me. COURT: The appellant has lived a life of crime for the last ton years. His crimes had been mainly burglary and stealing or receiving stolen property, Only mitigated by a short spoil of trading without licencc in 1964. The appellant came out of prison around October 1968 and by October 1969 he had reverted to his old ways. The highest sontenc: imposed on him in the past had been 2 years and 24 strokes in 1966 for rocc'iving stolen property. I think the appellant deserves a stiff sentence. Short scntencoo ---- - -.: -- -., -4- have not improved him. I note also that bur1ary is a. odu1ed offence under the MinimuM Sentcncs ict. I sentence the appullani as follows:- 1st Count: 4 years imprisonment and 24 strokos. 2nd Count: 2 years imprisonment. 3rd Count 1 year imprisonment. 4th Count: 4 years imprisonment and 24 strokes0 5th Count 2 years imprisonment. 7th Count: 6 months imprisonment. Sentences on Counts (i) (2) (3) (4) (5) and (7) to run concurrently, that is to say, the appellant will servo 4 years imprismmcnt and receive 24 strokes0 Delivered in Open Court the 1st day of July, 1970. (G.c.r. ONYIUKE.) JUDGE. ppo11ant 6,ivos Notice of Appeal to the E&st 4frican Court of Appeal.