19721020 TZHC Mwanza

IN THE BImi COtSRT OP TANZAITIA AT Ir'JUZA HIGH COURT CRJINAL APPEAL No. 34 OF 1972 : 0iinJ. Crj.ninal Case No 1583 o:t' 1970 of to Tistrict Comt or Bukoba Disict i Bukoba before R. Mriba, Esq., HINRICO R EYEIVIMIIU . . APILLA1\tT : .. . ers : TF RERYBLIC . '. .. P'S}ODEL' CIikRGE LS± 04: Bur1ary c/s 294 (i) th P&ial Code. te ing c/ 265 o2 the Pea1 Code. JG'LENT K[—HINDY, T: HEB1C0 R7 ffW1J \las 016rged ii bur1ry and stealinG dontra7 to Sections 294 (i) and 265 0±' the Penr1 Code Cap. 16 on two dis.nc counts, bu± he *as conic'ed di bur1aryn1 id acquit teq af theft. Ho 's sentencod tt ipiso1merit f5P two e - rT cido sZer the thon cox'porol punishnerrt ae 24strokes. Tneroafter, the ap)e1Yb e1ectedtoeiau. in renand priscx p1ding the dot ç±in1on c hs a ao1, Jie appea1ed against COflViCtiOfl sentee ad order. I .. . . ) • :' : r " The appellant was absent at tie tine 0± hearing o! iius a1, es he indicated, in lus petition of appeaf, that he did notwpht9 attend, bv his grounds of appebJr , which were well drafted were ten into accowit. The 1earned Stite At arny, M±'. Rah.n, aéared for the resP, Republi. T: particvlars of . .. ,. . . .. : • 9. J ?lpar:lilars of the offere: 1t Count ie 1irso±i aaared Qn the 1Oh dsy of Iovenber, 1 970 at -out 23,30 a't Kyaka Ilinor Settlien within the flistriot a. Bukoba, West, Lake RegLon, did break aid enter nto the dwelling hoe of one ARDREJ /o i1iS.P1E with intthi to COLlijit a fe1cr - therein, to wit stealing. 2id Qou: The sane person oharged on he sane day time and p1a<e dd st&. oi Record Player valued Yzo/, 32 records valud 28W'=,,, ties1i1rt's valued 62/, one spori ves vcJ-ued 30,/ = , oie trøise's ircilued "=, two bed siièes valued 50/ all valued at 79Q/ = the ' propertr oferie JdTJ)RJ Wo 'MASA ES" b IY A1hoiih te articu1ars coit-nri flnr nsonc it clt th the n'turo of the chcge against 'the appellant w.s not obsficure. he 23.3Ot1 ao ncit to be 23.30 hou's. The various figures stated as v lues of tI'e alleged stolen iteus were meant to be in shillings0 And thë"all ü'éd at t9o/ às :noan't to be the total..of .the value cf the various it.paq. enunerated. ..supra and not on itan of 1dcii. Thes"e articu1"rs let ao reasonW.e doubt that the choi on the twe ooUrrts were interacirinected probaaJ.y, they afose out oC a single alleged transaction. This will be i.iportnt as u' ia1n uestion, i tins appe1, os het1er, after acquit g the appellant o thft, the appellanb could still be C0nvcted of burg1-ry. This al1 dopend Qfl the nature of the evidence adduced. ...::. ...... ....... ' ................................,.. .. ... According to 'he evidence, winch the ieanied bria]. nagistrate acopted, Andrew Masaw (P.w.5), hereinafter r ±'red to as .thè conjldinaüt., a the owner and supervisor of a bar situated at Ka1. This bar ws Open for custorhrs during the evening of the 10th dcr (, Ner, 197 0 . The appellant, Who was a tenant in the hoise of SaI'ura, and Sabastian S1osafie ere seen in the sid br 'tabout 10.30 pti. on, the natertl dcy1 It vva6 also alleged that the appellant was seen ain at.iie bar an hour later. The bar house had rocns 7 and one of the criployees 1f the bar, c'illed iasiwasi, occupied a roan in the nouse as his bed roon.,, And thata tcpo recorde', nusc discs (referred o in this case as ilrocordst), thid ozie other iiens, to be rferre 'to later in detail, eve 1pt in that bed roan. -.2.- .... -. The bai was o1oed at abth.t 12.30 u.n. Riehaic1 Paulo' (P.71.4) 9 an enpIre of that bar, had been on du -tl dti±ing that nih. It appears that .7csiwi did not sleep in his roth It v;..s alleged that he had gonO on safari, but - it is clear that hi •'dai was looked prope-ly bo±'&e the box. aouse. was 'i±iaJ1 vacated for the mght. However, e1y in the nomnig of the 11th of No'roubor, 1970, Vlabii4qasi t s'Oon was found. open'.:. .Arfd -the •ftst issue was whO?her the said roon was broken jit'o andif'so atabut what Aocordingto the O'ridence of Police Constab] Julius (p. r.i), v'ho reet.ved the report of breaking ana stealin cid who attended this c -therêfer, the locksysteti of the door of Wasivisi' s roi was fbrceftlly renavd.....Msvi. (P.w..5) gave sinilar evidence. The appellant, in a sworn defence sci4 i't he dad not Irnow vihether in f-ct the lock systen was pulled out or not, Tneleained lirial nagisr-Le held that the door we.sin fa&t f&'cefulit bthkOn d that., this was evidence of breahing. The appellant - did no 7 in his petition, of apeal, challenge tus finding'# . I presune that his stcnd remained as it was di,zirg his trial. . Tith respect, I a'ee With the learned trial nastraiO that there was brenjccinS into the roth of Wasiwasi. But there is no. evidence as to ownership of the hot,se. In the cbserxe of such evi.dence, the cbirg that a,t was the dwellin house of Hassawe wp.6 riot substantiated. Indeed, as per evidence of Masie, he iac not sleeping ifl the bar house or houe, and, therefore, it Was not his dWelJin, house zil±hough Thomas (P.v1.2) thought Maseawe slept in thct roan. At- Ithe Lnmnuia, .t was the house in wth.ch he (Massae) oerted bar business. iaiu it ws róczi which 1 1aslwasi occupied. There ic no evi&ence as to the site of the entx¼ince doors, if any, so ha't it is aot clear ho.w t1 prsan, who £brc'efu11' opbned: d the o o r of said roon nanaged, the. irst.plee:,tbv.Cnter the said bat house. It 1s therefore, left to anybody 1 s speculation as to ho' the in- rude night have gained ingress. thbo 'tao cii.'se or was the roam door oi the outside?) before bredking the door into the room. Heverthe1ea, I agree %,th the learned trial uagistra'te th u tnero wts a breaking into Lj,le bed roan occtipied by /as1was1 The next issue was whether the breaking iook place at night tine, cs stipulated iii the charge sfio6f.'According to the 'evidence of Paulo: (P';\R'. 4) the box was dlosed a't 11 pri, but accordi.'ig 'to elestine (Pw43) the bar \ias still 1 opOn at 1200 ari. when he left the b,x'.Lassawo eaie 'that he left thebar at about 11.30"p.b. I±csemsp ierefore that the p act tine of closure of 'the bar s not knoin.' The appellant said nothg in this obnnocticu eonb1e dbt However, I find that the lanes LgtviEaVleft rio ras ou that ilon. the baa' was c1os'it was "night" dr "night4ine" vi -t1it lè 'rii.n Of 'Section 5 of the Penal Code Cap. 16. According to Mascawe, ho was iifforned of the breaking of the room at 6 0 30 u.n. on the 11th doy of November, 19701 and th3. he poceeccd to the house... fle is 'the only witness who gave ano of the discovery of ac incident. It appea's that the first person who discovered the breaking c'id not give evidence. Iis evidence would have c1-fied at what time the incident \IS isoovered. The 1 earned tn.al magistrate hold that burglary was poved beyond reaiable doubt. I would' not differ....with respect, With the finding of the learned trial magistrate on this point, The -ia.'ice and the o.i.rcw,is't- antes of 'this case i-reist4)1y lead to the conclusion that the breakin ( . uu&t have taken plc e during nigh± tine. The nex'issue was rht itens of roperty were kept in the roan occupied by 17asitas' • ass-ve sad that be discovered 'that 'the record p1'yer, records - 'music discs, a pair of trousers, shirts, a sports 'vest, and bed sheets were missing from the roan. In cross-examination, h elaborated when lie said that 'the bed shee's were 2 aod the sh?,rts ere 2, He said. that the clothes belonged to hin t except for the 2 bed sheets whioh belonged to \/asiwasi, The learned trial uagistrote accepted that these Things were in the saic room 3 ona I tee' n& I re',16on to differ with him As it can be seen 3 Massawe did not say 'th -t the pla.yor and 'the discs . were his.prqporty,, as thQ .Qhao suggested. Lot no now 'turn 'to 'the evidence which ' "s alleged to coruiect the aepellant with both burglary and stealing OlGhôugh he as "cqui't'ted of the J.atter cnarge. Accorng."Massawe -' to uote•liin - "(0)ne..b tiid whoworked. atIano'thex bar that sells Rubisi pcnbe reported to re (ham) ti'ct the previous naht she heard th accused (appellant) person playing nus'ic and 'thnt she noticed that the record player wa the one 'that belonged 'to me (Inn). Paul&s (, .4) versicra appears 'to be slghtly different, H. said th"u "(0)ne 'woman arfforr,jad tI'ie Police that shO had T seen the player being played in another ba The vin' sthit" us to .. . , I T. the accuseds (appe11ants) house. The re1evctt Police Offee -th -t th? suspected person \tas described" o bin, Du the woman who gz'vc ii2oruition, as per Mass8we and Paulo, did iao give evdenee in Ccu2Gq The 1e'ied tr1 ragMtrate took into cou iv- t \1c told to Mcsswo Paulo axid,Police Constablo Julius as evidenco cafls the appellaixt Thi s f1nd3n /3 attached by the appellit. In oid 4 cf his petition, the appellcit subtted that , :in the absence 61 he ev1c1 elICe of the c1leed w om na or br .L1:a1d the evadc? Was hearsay end, tiiOiOi'OX', it should not h7o b'cn adru.tted, and, if adiitted, i.t should not have been tbken into accoib4 I think there is e point here. Jhit the ollegea \/U_1On lold the tvio prosecutioia witnesses, in those terns, was 1crsiy' wv -i.e t rd, krefore,th±s oidcrice Wqq in aissib1o.in law as.:agçiin .. he tppe11ert It would only •1io bocn . oônissible if the afleged wor.aon had given evidenOc 111 CoUrt. I is lc19 o speculcic s tQ sihy she w a s not ëalled when her cvidei e would have bcca riaterial to the prosecutic& s cae, To ~ 1s e tenu , therefore , the 1cnioci. trial L) trate uisdirected hmself iii odu1ti-n cd acting cai he3rey evidjoe, , As.c r-esult L infom -'tion rocerved, tile s±d Police Officer ( .l) acconpiiád by Massate (P\I15) P.uo (i.vi. 4) aa Selestine (. , pr00000e to the house Scfta where the ppeUant ws c' tenant • It WtS olegoC L t the door a nd 113e window af the roi of the ppo1lont were locked. Hevi regard to the contention of the ap.pellcnt thc't t1i evidence of the prooc on Wee "full a1 €apst ' cid t t contradicions u it is .cary to làok into the vicience in sane detail, in ca'der to detennnc {ihether the a1.egd deioc had adversely affected the case for the proseci. ion. Police otable Julius spid tha he proceeded to the aUtLd house \hdLt tcdo.ng .search order with hin. He said that he was in a huxy to GO to the r0 cm as he susec Ci. that the suspected person nigh rti away. It was therefe, clear ttt ICI s.d Po4co Officer did not have the requisite s - rei1 order with bin. The appl 5lained of tbis crt the trial aiid h repented this conplein JJ11 on appeo. It is now well ès±ehlithd thf a evi 'nie' ncc obtained throug1 uLi 2il search is ednisiblo nevertheless, 4iP relcvc (ee RUM KfltIu V. R (1955) 22 E.A C.A, p.364) Therefore, I sea no recsbfl to deal with tlia at len,th. Police Constbie Julius continued to say thct, when he nrriv a tIO house, he found it locked. He Imocked t the door, out nobbdy opened far .', thct 'chen he pushed open the window, he ccii ho appellant t sleepin' cfl bed, but, when he got no respalse, he forced door open. Poulo said i - t the cppcllcnt wçs asleep inde when the Policc O2ier was pe'rsuada.nG 112n o open the door. He said notlung about the Poica Officer push1i1 the \lflc'O open. Massawe said that the 2.olico Officer broke tne do and that, bfare that, the Police Officer had pushed open the 1i1id ow end pr ode1 hm (the p ol- lant) with a stick, but the ap ellant would noi ake up and hence the Police Officer pued th the door open. ITeither the Police Officer nor Poulo s'id u' t a stick w's used to wake up the appollant. Tnese were sane of the conrhct- ions which the appellant referred -to. His stcnd ;-s entirely diffont, I1C said that it was not true that i±e was found asleep in his roan. He j. thct they found him atside his house, nd that he ittd then \allinGlJ into his roan, although the rolice Officer cald not show 1-un a seaIci1 orr iich he demanded from 1-urn. The ic - med trial maGistrate or1sidered t'i differences noted above, end he held that they \'GCC Lnnor and of no r4ericl effect to the credibility of the witnesses for tlio prosecution. I aoc, Lff11 due respect to the learned raaistrate, that thei.1lo9ed difference were i c r in the extne ud cannot be said to .havO affOctcd ddersely the case for the prosecution. Bearing in mind .passgQ of tine frailty of huian mind, en(! - relative poaition of each witness at the scenO, these differerees were Lo 1 expecCed in a case which wee trioc' twice, once in January 1971 axid, a CiiCO.iC • tine, In August 1971 for evnts which took piac in November 197 0 . I wold refer to the other di.fferces later In the course of this judgenelit. Accoiding to the prosecution evidence, the appellant was found insic C. the room, and that he was wearnig a light blue snirt (ch. i), and the COi- - lcinarrt claimed that it was part of his stolen clothes. The learned trial magist'cte held against the prosecution ii ro cct of this shifrt. Like t c- learned State Attorney, I find that the reasons foi holding against the prosecution on the issue of the, light blue shirt e quite sound.:- H0 he that, S S . • ./ 4 f ,, S • S , 4 -. - although the cip1oincit had described his rxirlts., he couls not check those : • nO.rks to - sec .ithye.cited on the shirt,. as thq.shirt, unThrtunate1y-.x;.6 , Lound iusssng as it was believed to have been s Go1en together with ohor exlubils 9 thei the 1exhbii roaa of the court 1io'so Vias broken into, In o icr v ards, -ii:.oi.iId.not, for hinseLL', exauine.tho..s1irt, so as to - satisfy biusoJI ; .tht.tho,]Jrrk$ Were indeedon tiio s1tLr. - .Thocpp11nt alleged. tiai. this shirt hs property, and the tra1 nas rsbo 've 1iar the beneftt of ( a ot. I thiek the. appe1J.mt ccxinot fvaLr couplain of i2ais finding. As a rebul , therefore, there was ncithirg cund in the rocu occupied by, the appellont 1 or o•tho - ppe1iit hine1f, which was re1ato-tp thOj:1tflS stolen fron-.tho roar.i oocupied by \ LSiCSW ihethcr such s the p'oiorty of the conp1cinmt, (L. of Woiwàj pr .:of;ah:Tha., S (P,vJ2)... -. : --• 7 - .- - -----. : ' ' •- • . , v.. •-•-• - • c1_; . -• ' • ' -.- Tho: -fjndjag. Of: the-light bJ.ue..::' shirt lodto the iarr,est of. the - appe11iit. Po1je - .- he . persuaded the a-pe11exrt to .show 1iia ':hcro he "had hiddei th propertyH and the ppo1 dic- so. Bit acordin to P ao, the ppe1t. tgr.- eed : aftei .a : J.engty- . . .Pasipn. .he had; be: prontLsd ftCt no ease'would be started if he did so, And siLii.1cr evidence wasgjvón by Massewe.' Tb.i.s evidence was accepted by the 1e±nod tria1nast'ate. . Such evidexie gave ne a feeling that this pe.iaton, rhich wa lerigtby , os probb1y ephurii for physic.c1 forcc, and it i not confortab]e evidcrco. It ist,.unlikely that any suspect , finding 4nzç11' in the position the apc 11 - t was, iop1d have bea orally persiaa?c1. to dJ.sC1osc very incimnating evic ciicc. 0• • One has the £ing--thctt same sp't - f'qe-vs applied, d •this seemed o be the case. . Tbi case Jad.. been pat1y iried by- Mr. Nycilali, Rqsident Mawrate before Mr. Mronba, Resident L1ost'ate, tried the c'se de novo. M'iss c tas c of the witnesses, who gave evidence before 1'ir. Ilyalali. He said then hot the Police Officer, who was also P..l then, boxed the appellant twice, and bold U that he would not bhjt agcin if he disclosed .i:.rhère ho had - kept. the J.le'cd stolen pro-perty and the. appll.nt then showed the spot. - He did not rep.e this evidence bCore the lecrnec5 trio]. rogistrote. I sooned that he changoc1tiis 1. stand slihGlr, As I said in the case of MICHALl StJ1ZU BERN.ADO v.R.IzcCr.j. 68/72, the evidioe ren, before Mr. Nyalali, wop -not evidaicp at the - ... pldnot -bc--nado;.basis fr-fdg of facts t txial or loter on appeal, but, such pvdnce illuriarirted uO what 4ght have happened to the appellant in the course of - tha,t psion. In 1is evidence, the appellant nade no refercuec whatsoever of this purpored persuaion - His send was that -he had not- lcd ppybôdy .-anyhere after ihc :..oiice officer and his party ha found nothing in 1 -' iz .CQCZi, end that itwas of u1e1r own accord -that they pDocecded to a place some /O paces frou the house, nc 1 recovered the. alleged itcus, clthbu,h he o.'eed iot he went with then. lfo cvsr, according. to the prosecution evideXice, the appeliruit was not only persuaded to diselase the whereabouts ol' the Ueged stolan property but he led police ccs L_ able JuJ..i (P,vbT.l, Paul-a (P,J.4) cud Massawo (P.w,5) to the spot in the bu.,.h where a reeord player (th.II), 31 LIuSiC discs (i1abit III), a pair, a1' ra cei green vep.t (&h-v), a stripped H[JCO e!iirt (Ech. vi), en- ylon shirt .(mth;yII).-rwe - recovred : 14 WCS alle;od hese- $tpiis -were covc with grase. The learned tiagistrote consideroc' is evidence in the l of -10 .ev'adcnde of the hppellant and neld that thc. eioied iteus were inc 1 ecd 1'ourc Where tha , pro.secUtion witnesses said they were; and that it was - - the appellant - who.1d théb toj' - :.the spot where they were fotd - I. his - gx'ounds-.of appeal, the appellant did speôifically att - ck this findiui, o bhe trial court. He iittcc that tha:evidence was contradictory and, therefoi'o, it -shoüldnot have-bean .accepted. The -exariincttion of the evidence-. revol.cd that there were diffaroncc -- in the distances-given. The.. police Officer sci that-- the spot was .400. paces from the hous-. Paulo - dd - iot give. any d-istanc - assqwe.said. that it .. s 60 paces. The appellant hmseLI said thatit was 440 pçees. Bearing in LiflC. that these distances were .nere assessnents, and that the distance -given by the ctppeilafit-.is noaxer. that of the police officer,these differences..are in -iinportcuit. Probably a olice O'fcer, throuh his training, 'y-s in a better position o assess. distance than Massawe or the ppellont ninsnlf. With respoctnose distncas d.c not appear to ne to be of any mporuance at all. There as also the quo s-ti on of how nany people were at the house and how nany people cnt er'd the roon of the appellant with the Police Officer. Adam I do not thank u'iO u!0 differences ie of any inporc'nce at all. In the absence of any evidence the group of the people, w'iic -i t' - ored outsicic, and then entered the roou, wcre aallyounte, these, differences -,: in nunbors, were not of ny . p't'cuice .t all. It is really , not important to )mow wherL ic other by—s-tenders ien to -. or were, /i1en the, .s ecxch party procecd;ed to the scene where ie:- &lcpd stolen 68 were recàvered. Therefczre, licving rgard to the evidence and the reasons advan.ced, heconc1usions of the 1erned tri1 iicstre were soind as it is ap4 supported by ocadeee -' I see no rcoi o disturb then. 0 The exhibited itens were c1iectàd by the Police Officer, and the ppe11cnt was cbared s I have ifldicated bovo. In his ound tIil'ee, the 'ppe11c ?r'( tht even if he had jed - the Pol±ce to the à1iood scene , the recered ltáns were in adnissible in evidence again hin as 'the oc of 1etdini, in itse1± viould a:oimt to.confessian" Probably, inplied in thoc vicds, is the a11egaion tha tu his coduet auounted to a eoifession to a 1o1ice Oicer rind therefore ii.ia&is- ible evicl&iee. He abtatted that the tri1 cour orred in adrutting such evidbiico ufldër the pravisias of Sectiis 31 o hc]Thiidenc Act, 1967. He sciL ., that Section 3 1 of the s'id Act vias not. 11 1n deTbtion of" Section 27 o thc sEJe Ac:t. The'pp11at certin1y raised a vcry controversial natter; that is to soy, \Jhetlur cr not there can be confession oy öonuuct. It secris to rae this is ossible although I csino think, presenUy, of the situation i1 - oce this could be eslDbllsbed. A coriiession is cal onssion of a set of focus iic1i 1o_ve no reaon'b1e dcnibt t1at te offessor is ctaatting a crirrnial oTfenco as having been conriitted by han. However in so Car as this ease is conccied what •the oppellant is alleged to hsve done icx n' I he led a o1ice Oiico, vho wsacconpanied by two civi]icns, to a spou \ here se alleged so1on property, ias roov?red. This is flJr i cduxssion thrt the appe11an )mc where the said pDoperty %lere. It Was hot even clflssiofl that he was a.n possessici ' theii. Therefore, these fcts, i. y view, did not consiGute onfessian. To thi extent, differ \llth the 2iadin of the le arn6cl ­ 1Jastrvte and the views of the 1rned State At orioy, who were of ulic Vie\1 that whet the appelltinu did, aunted to a oon.tess'ci to a Police Ofcc, Such evidoe, s the learned trial nagistr-ite so riht1r pointed out, in lus judgenent' /as a 6i1sib1e as nti4ilst the ap.elIi.it ethe '1isi'o Seciaoñ 31,of Evidene Act, 1967 I find, therefccre, that this evidaco was rightly dn1tted, In groi.id 2, the appellant subiiuted, in cnoral, that the evidnc e did not estailii the identity and ownership al' the aUecd roperty. The itei recovered relatd to this ecritention. ind the question to be smswered was whether the Decoéred iea, or any al then, were or was ic'cn±ified so as to estblish (a) ownershi efld (b) its presence in the rocri occupied by Wasiwasi, befce the roça was subsequently broken into and the iLens -- o-uncl in the alleged ploco. :t e-t tie dJ. \ith tho record playcr and the recor-or music discs first . ACcordin b to the &vidence, these were The property of Thomas (P.w.2). He cs able to idehti±'ythe record pl-'yer by existanco o!distinct marks. He also said that th iy1on shirt (Exh. vii) nd -the stripped (Exh. vi), were -'iso his prdperty. Hd also peinted out distinct marks on o-áh one of Th. The CLiStiflCt na&s on these ftens Were checkect by the tril 'i?gis±rate Innself id ore found to exist. Tha shid that those articles the record player, titsic iiscs and the 2 shu'ts, Were kept in the otn in uho urled house. Paulo allcgcd that 'the two shirts 'belonged to Thomas, althou,h did not point out ci i-'rk which comfimed his lmowledge as to ownership. Issawe claimed that tio tcis claimed as being -the property oC Thomas, were -uost the itai which 'iero roe ove'ed frot. the bush. In 1-as defence the appellant said that he did not accept this bildbrob.. He said that P.1.1 was no the Police Officer who ccGually recovered the aid rte, and -that ho had not boon in good terms with LIa5sEe beccuse''thè latter wa interferzinwiTh his friend dne Jé Idlila. He did ' tot ' sr thiyth g abait 14s rtiii li Thoms thid/ Pilo. 1drhed nagis rate consdred ti-as evidic a and found 1 u the record player g cnd -the 2 shirts were identified to be pare of the stoli property of Thas when the ssidron -w b±oken into ':In espect of thea 31 records-,- the léard td.i uastr-'to held that, although there were no, sxcific iarks on then 7 hey were part af the property . of Thons and !aich were stolen, together with the oiher items, £ron The alleged room.. As the records \vero found together with the reOord pl-iyer ahd as -they were s1n1ar to -the records of Thomas, it was a reasonable inference to make in th& rciistancdc of - thi case The lea'i'eâ magistrate then ddrssedhis mind oni the charge and the ividace' He said, cud. I quote 1-wa — tt It Will be observed that the tcns identified by P.\q.2 are said 'co be the property, of P.W.2 and not those of the cplainant Andrew Messc''o the man named in the charo sheet. It ne-nc Gherefore that the chcrg-e sheet is defective to the extent that it namo$ Andrew Massawe as being - - - - I -6- the only owner of., all the tiths that were atolen. P.W.2 and ndôw Masscve w1d in the sane bar fran which thoso things were stolen, and it is quite clear that the property can be of these two peoplc. It is unfortinate for the prosecution that the charge sheet w.s nt ononcled to accorxiodate the ñcrie of P..2 and clear the defect'. The doIoct is however not fatal." With rcspeot:; .iroPerty w.can be owned by two people, but in this case, the ovi.on. left no roàoncble doubt that that part of the nad itens were the pópoy of Thomas, The fact that they were w1c mates did not mean that they jointlr a\iied the nJed items. It was,::thorefore, an obviop,s deZcct. If any useful ien&ien was to be made, two counts, at least, would havo been substituted.for, 'sothat oach.éount contained items alleged to be the5roperty of one owner. The' 'c:.:argo sheet, in respect of the owner of the property, did not conform to the ctidancc' led. The chtrge:could have been onended in the coarse of the trial, Jut 'thju was not done. And the question was whether the 'defect was fatal to the. charge of .thoft In the end. the learned ma4strato zCciuitted the appellant of the ---- count of theft on the ground that although 'i- was clear that' the property was removed fran the sleeping roan at the bar it 'is clear whether it all belciig 1 to the complainant as the charge sheet says". And it was only for this reason that the appellant was acquitted of theft. It was a'matter of doubt whether any bed heets were recovered, as alleged by Llaasauie, as these were not in court. It was also not clear as to who owned the pair of' trouseis '(La. IV) and the grecnvest (Exii. v). Paulo said that they wôe the property of Mass but Massaxie did not say anything about them, Clearly, therefore the learned magistrate was justified in holding that it WCS not clear whether sill the - "pToperty belonged to Massawe as it v/as alleged in the charge sheet. Having acquitted the appellant of theft, was the learned trial mzstrate then ieft in possession of sufficient videnc to justify his finding that th , appellant was, nevertheless, guilty of burgiazy? The appellant argued 'that t13 learned trial magistrate misdirected himself in 'Convicting him as he d±d when he was satisfied that he was not guilty of theft. He said that had he c'orrdc; directed himself, he would have found that the link between him and b'zgla±y was missing and, therefore, he should have been aocjiiitted of burglary cc well, If I understood him well, the lec±ned State Attóriioy, Mr. Rahi.n, ubmIttod'th:; there was still left a link which, if accepted by this court, would justify the appellant being convicted of burglary, and that that link was the apollr1iY Imowledge of where the stolenTh'oods were kept and to that extent he was in possession of stolen proper ty. The problem, s it can be seen, is not withou.t difficulties. I said at the beginning, nd the evidence on record seems to justify this, that the two counts 'are intimately connected, and, if 'the evidence, whic ii connects both c aunt s, is the same, the fall of one count trust necessarily lead to the fell of the other, unless there was adequate evidence left that the s -tsxing-eount can stand on its own in s.te of the fall of sister count • And the question is Whether thdro is evidence which 'iould jtistify upholding the appellants conviction. I think, with due respect, the solution depends on whether it can be held that the apellart was found in posscsoioi of stolen property. The learned trial magistrate hold that becanse it ',':ai not proved that the recbvered property were of the' complainant, the appellthat' vies not guiJ,ty of theft. Implied in thi, is thoiwfci'ence that the reco'Jc'i'eci prope'ty were not proved to be st olen property. 'As for 'the Imowledge, it is clear, on the evidence and the circumstances of this case s that the appellant lmew something about the hidden property othoine he would not have lad the police party to the spot where they were rccovod, and since they wore found hidden in the bush, the appellant uust be held to have Imown that they wore there as a result, at least, of on unlawful adt. Does this mean that tho un- lawful act must necessarily be that of burglary? I think not, It is just possible that the appellant 1mev: then to be stolen property, but the court held that they were not stolen property! It is an essential in1'edient of the offence of burglary that the ecki.ng'at night 'time should be acconpaniec ~ by intent to commit felony. In this case 9 the evidence, as to the in'enc1sd feloay, is unclear. The fact that the alleged items were found some 400 pacca away from his house, is a f cctcr in favour of tile appellant, although this vies counter balanced by the appollant,s act Cf tCking the search party to the scene. In theci,rcunstances, the Imovilecige link, is, therefore, very thin piece of evid ena e, and it is not clear what sort of imovilodge it was apart from the fact that the appellant knew that they were there He 1mev' that they wore tliure, .... .17 I —7- probably irnlawfUy, but they were not stolen proorty. Such being the cse inference of possession, through caoaission of o. felony, cannot be nade and, even if it is nade, it is not through caiinissibu of a felony, as stealing hoe been ruled out. Retaining and receiving stolen property, though feloniho, require that the receiver or retainer Imew that the received or retained property was stolen or unlawfullyôbtained, büt, again the trial court ha[ ruled that they were not stolen proporty It is time that the basis of the leaed nagistrate finding on the issue of theft was 5 partlr, the nàrñng of Massa instead of Thonas, or both of then, as alleged oun:o±s of the said prope±'ty, but this is of no aid to the reeblution to the problen in hand. It soaià to no therefore, that the appellant 1 s argunent, in the light of the evidence and the circurastences of this case, cdxinot be disnissod It seons that, in this case 5 the appellant should, as well, 1-iao been acquittodof bwglair, after he had been acquitted of theft. With due respect to both the leazied trini iiaiotroto and the learned State Attorney, the conviction forburglary, therefore, cannot be upheld. . Having reached that concluon it is not necessary to consider tla appeal against th entence. But I would point out, as 1 did in the Mwonzt Cr App. No. 68 of 1972 1.11IcHAJ SUNZU B-M-IT-ADO v REPI (Pirreported as yet), that the appellant had no right to chose to raisin in rdraand pris,en pending the deteruinot- ion of his appeal since he was convicted of a scheduled offence. As a result, this appeal is allbwed in fti.11 The conriction is cjushod d the sentence and ordel' set aside. Appellant be released forthwith unless he is held on sane other lawful purpose. Delivered in Court at Mwanz a on the 20th day of October 9 1 9724 7 1Vanza: .. . Z,N. .El—Kindy 20th October 5 1972- .. .JnGEI Appellant - absent Mr. .Sekule, S.A. for Republic .. ., ... ... .,