19760804 TZHC Arusha

IN THE HIGH CO1T .OF TZANIL AT ARSiiA JLPPELLTE JURISDICTION.. HIGH C RTCRII.aNJL APPEiLNO. 39 OF 1976 ORIGINAL CRIMINAL CASE NO. 255 OF 1975 OF THE DISTRICT COURT OF KOROGJE DISTRICT AT KOROGWE BEFORE: W. R. T/.AWL, Esq., Resident Magistrate IDDIABD4LLIfI . . . . . . . . . . . . .. . . . . . . . . . . . . APPELLA'T (Original Accused) versus THE REPUBLIC . . . . ... . . . . . -... . . . . . . . . . . RESPONDENT (Original osecutôr) JtJDGEMENT NYAILI 3. !ppe11ant waè charged and convicted in the District Court ol' Iorogwe District at Korogwo with the offc.nce of Robbery c/s 285 and 286 of th Penal •Code and was sentenced to 7 yeals iinprisonuient utider the Minimum Seatencos. Act 1972. Ho is:now appealing to this Court against convIction and sentence. . . The 1'aotsof the case accorJing to the prosecution. .e±hat'on -bhd 16/8/75 at aboi.t 6.30 p.a., P.W.land P.W.2 wêio on tneir way home when Gflo appellant canght up with theth. . PJ.1 is apparently the soi• of P.W.2.. Apel1ant indtcatd his, intention to take P.W.2 away with h apparently to have intiinancy w i th liar. This was resstd i nd a fight issued in the course of Which Lpe1Ian.t seized a radio froi P.W.l and an umbrclla from P.J.2 arik inflicted an injury on one of P.W.,l's fingures. Lpellant then • disappeared. The radiO ws discovdred by P.W.3 (Musa Rajabu) he f011owing day abandoned in thdbush. On the 19/8/75. the •rnàttrwas reprted to P.W.7 (a Vlard Secretary) who attempted tO reconcile. the. parties after .appollnt had confossedthe offence in thc:. presonco of other witnesses. In his defence at the trial appelLaTb denied robbing anything from P.L.1 ,and P.W.2 but aftcilitted having a quarrel with them. One of the points for consideration in this appeal is whether. the confession allegedly made by the Lpp011ant to P.W7 (a Ward Secretary) is adnissible in evidence. There is a chdiii of authoritie. including the casQ of R.V. gixi s/o Th 10 E.L.C.A. cited in the case of .Simon v. Rfl9701 H.C.D.- 3o ,335o the effect that confessions made tc persons with powers of arrest similar to those of police officers -. for instance persons like messengers and clOrks and chief executive officers :f lo.äal authoritics - are inadmissible as evidence in Court. Iwould........../2 -2 - I would however, think that this rule does not apply to Ward Secretaries who, in the current pQ]i.tical and administrative set up in. this country aDo political party secretaries at the Ward levol in th same sense that the Area Comcaissionor and Regional Coissionor are political Party Secretaries at the district and regional.levols. I am not awaro of any provision. in our lai which.confc.rs police powers of arrest upon party secrotarics ;.I must therefore hold that a confession made to a Ward Secretàryis admissible in ovidonce in Cmirt. ....... The next point I have to co1sider is whether the statement allegedly thdo by appellant to -P.W.7 was a con.fethsion to the offence charged. The evidence adduced by the prosecution is in total agreement that appellant admitted beating up P.W.l and P.W.2 and forcifully taking the umbrella. .There was conflict of prosecution evidonco concerning admission of tuking the radio. But do those admitted facts give rise to an inf appellant h'.d a fraudulent intention in taking away any of theproperty from PWol and P.W62? . Generally it can be said that a prsoh thb' foibl. takes away property from another can be presumed to ; have a fraudulent intention unless there are circumstances. inconsistent with that presumption. In the present'sca.e, wher the appellant apparently intended, to take away P.W.2 se a1.prpo,sos and a fight resulted in an attempt to resist that intention, it would apoar, as suggested by Miss SheikI'', Jearnod State ktorney fOr thC Ropu'blic, that the appellant took away the property in the hea,t .of the fight. That would explain why the radi was foimdabandbed in the bush, aarontly not far from thecbnc.. I would say, as Ihavo drone on other occassions, thatwhere property is taken away by an accused persOn in-thO heat of a fight resulting from motivcs not rclat&d to thoft, thore can be no fraudulent intention to steal such property. .Thc.position I think is similai the case wbcre a person Is charged with murda but the circumstances showthat he caused the death of the deceased in thc. hOat of fight. Such a person cannot be convicted of murder because there cannot be malice aforethought under those circumstances. By analogy therefore, the appellant in this case could not be convicted of robbery, but could be convicted in the alternative for the offence of assault c/s 240 of the Penal Code by virtue of s. 181 Of the Criminal Procgdur.o Code. This Court can doo now by virtue of a. 346 of. the Criminal Procedure Coda. . . .. .. . . The conviction foi' robbe'ry.is.ttlierefore hereby quashed and the sentence of 7 years jail is' st. asid and instead a conviction fo± assault c/s 240 is substituted and a sentence of 9 months - iail is substi'u1d ..-.----- --_- . (F. L. NLLLI) . JUD GE. Judgement ......13 -3--. Judgcraent dclivered this sane day of 4th Auiist 1976 at Tanga in the presence of Miss H. H. Sheikh, State Attorney for Republic. ji (I / 1/f\? ii- (F. LY iYi.L[.LI) PLN/MTPM. JTIDG-E. 4