19710310 TZHC Dar es salaam

.-.-,-.-----.' LQ IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM 1 . (11 Criminal Appeals Nos. 29, 30 and 269 of 1970 Original Criminal Cas6 No. 68& of 1969 of the District Court of Xorogwe Distl'ict at Korogwe before P. K. ,Lunyeiele, Esquire, District Magistrate SINGANO ALl ATffUMPI (Cr. App. 30/1970) (U U SHOE OMARI 29/1970) SELEMANI BENDERA 8 269/1970) APPMJLATTS Original Accused ~os . 1, 3 and 4) versus .* ••••••••• • a ••S• •e.S..eaeSó S •t• • RESPONI)ENT (Original Prosecutor) Charge: Coiint 1 . Burglary contrary to section 294 of the Penal Code, Cap 16, Vol. 1 of . the Laws. 2.. Stealing contrary to section 265 of the Penal Code, Cap. i Vol. 1 of the Laws. JUDGMENT BThON J. The three appellants, li teenagers, — who were charged together with another tee4ager with burglary and stealing, were convicted as charged and were each sentenced to imprisonment respectivel for two years and nine months, to run concurrently, and to the statutory twenty four strokes corporal punishment. The fourth youth, who has not appealed, was convicted of receiving and he was sentenced to ten stroks corporal punishment. The three appeals are consolidated, and in this judgment I an retaining the descriptions of the appellants as they were described in the lo*er court, they beiig the first, third and fourth accued. It was established in evidence that th,. house of the complainant.,, who is enipioyed as a cook at tIe Dindira Tea Estate in Korogwe, was broken into during the evening of 28th August 1969 and there were stolen therefrom a pair of long trousers., a pair of shorts, two shirts,, a blanket, a knife, a piece of cloth, and a tbv. The I 2, p watchman on the estate testified that at about 7.30 p.m. whilst on duty he heard a noIse and then saw a person holding some clothes standing outside the estate grounds. He challenged him, and the man told him to go away. He grasped the man and they struggled. In the coiir se of the struggle' the watchman slipped and fell, thus enabling the man to escape, but he left behind him some clothes which the watchman had succeeded in grasping. These clothes were subsequent]y identified by the complainant as his. The watchman in his evidence stated that the man he struggled with was the third accused and that, incider tally, is the only evidence to connect the third accused with the' offence. About a fortnight later the second accused was seen wearing a pair of black trousers, whIch the complainant and a friend of his identified as belonging to the complainant. The fourth accused was seen wearing an item of underwear described as a fianne., apparently a vest, which the complainant identi led as his. All four accused elected to make unsworn statements. The first'accused stated that the trousers worn by the second accused, who is his brother, were his', that he had bought them at the market for S. 22/- and had lent them to his brother. The second accused in his statement said the trousers he was seen wearing were lent to him by his brother the first accused. The third accused denied all knowledge of the offence, as did the fourth accused. The magistrate accepted the prosecution evidence, which even at this stage it should be said was weak in the extreme, and he convicted the three appellants as charged. The second accused he convicted of receiving. He, incidentally, was found after a medical examination to be eighteen years old, as were the first and fourth accused, whIlst the thIrd accused was found to be seventeen years old. In his petition of appeal the first accused asserted that he had previously been tried for the same offence before a primary court, and at the hearing before the primary court the trousers which the second accused was found to be wearing and claimed by the complainant as his had then been described differently by the complainant, the description being at varIance with the description he gave at the trial before the district court. In view of the assertion that the accused had appeared before a primary court on the sane charge, 'I had the proceedings of the primary court hearing called for. Tkese disclose that both the first and second accused were together changed with stealing the complainant's clothes and, after the two accused had given their evidence in defence, the charge against them was withdrawn under section 22 (1). of the Primary Courts crininal Procedure Code, apparently because they were to be tried by the 'district court. 3. Section 22 of the Primary Courts Civil Procedure Code reads:- "22. - (i) A complainant may, with the consent of the court, withdraw his complaint at any time before the accused person gives evidence at the trial, and where the court gives its consent to the withdrawal of the complaint, it shall withdraw the charge and, unless the accused person is remanded in custody on some other óharge, discharge bim. The discharge of an accused person under this paragraph shall be without prejudice to the institution of new proceedings for the same offence. Nothing in this paragraph shall be construed as derogating from the power of the Director of Public Prosecutions to enter a nolle PrOSecU1 in any proceedings." As will be noted, the section is silent as to the position when a charge is withdrawn after the accused has given evidence. On the principle of expressio unius personae vel ret, est exclusio alterius, the section could be, and should be, construed to the effect that if the charge is withdrawn after the accused has given evidence, he is entitled to an acquittal. If there is any doubt as to the construction of this section, such doubt is, I consider, dispelled by the wording of section 6 of the ordinary Crininal Procedure Code, from which the section 22 is derived, and which reads:- "86. In any trial before a subordinate court any public prosecutor may, with the consent of the court or on the instructions of the Director of Public Prosecutions, at any time before judgment is pronounced, withdraw from the prosecution of any person; and upon such withdrawal - if it Is made before the accused person is called upon to make his defence, he sball be discharged, but such discharge of an accused person shall not operate as a bar to subsequent proceedings against him on account of the same facts; if it is made after the accused person is called upon to make his defence, he shall be acquitted." I 4. As agreed to by learned State Attorney, on the withdrawal of the charges against the firt and second accused after the y had given evidence, they should have been acquitted. The case against them is therefore res dicata, and the defence. of autiefo is acquit is open to them. • with regard to the third accused, all the evidence against him was that of the watchmn, who identified him as the person he had caught and struggled with. The third accused was a total stranger to this watchman. Although it could be argued that the watchman had ample cpportunty of observing him as he struggled, it was dark, or at least dusk, at the time, and there is nothing on the record to indicate that there was any artificial light. The evidence of identification would have been much stronger had there been conducted an identification parade and the third accused identified by the watchman at such parade, but he did not see the third accused again until his appearance in court. Therefore, as agreed to by learned State Attorrey,it would be most unsafe to rely on such identification, which, as noted, is the sole basis for the conviction against the third accused. With regard to the fourth accused, the only evidence against him is finding him in possession of what has been described as a.fiannei. The identification of this garment was weak in the extreme in that even the complainant gave two different descriptions of it in his own evIdence. In examination-in-chief he made no mention of this flannel, and in cross-examination by the fourth accused he stated identify the flannel to be mine because it is a black fiannel and In re-examination by the prosecutor he said "I only suspected the flannel because of the black marks on it'. It could hardly be maintained that it would be safe to found or uphold a conviction on such identification. All three appeals are accordingly allowed, the convIctions of the three appellants• - which, as noted, are not supported by the Republic - are quashed, and the sentences Imposed on them are set •aside•. If they are not otherwise lawfully detained in custody, they are to be released forthwiih. With regard to the second accused, who has not appealed and who was awarded ten strokes corporal punishment, which doubtless will have been executed by now, In exercise of the Court t s powers in revision, his conviction is quashed and the sentence imposed is fonnally set aside. Delivered in Court at Dar es Salaam this 10th day of March 1971. (Sgd.) PHILIP BIRON. JUDGE. ii