19800718 TZHC Tanga

I.., IN THE HIGH C OURT OF TA1ZARIA (trL1 AT TANG'A 31 APPELLATE JURISDTCIION CRIMINALAPPEAL NO. 18 OF 1980 (igir]al Criminal Case No.437 O. 1979. • (of the District Cout of Muheä at Muheza) Before' W.S. Mkulungv., Esq. D/M JUI&A ALLY peI••!'•ss''•.'••• APPELLART (orig. Accused) versus -. THE REPUBLIC .... .,............. HESPQNDNT (orig. Prosec.) Charge,: ls. couit - Burglary c/s 294 (i) of the Penal Code. 2id cou.t - Stealing c/s 265 of the Penal Cod,o J.U -D.GEM'NT Sisya, 3:.- he appellant was convicaóf burglary and stealing by the District MagistTate, Muheza, and he was sentenced to three years -aM six months imprisornient, ospoctavely. Sentences to run concurrently. He is now appealing o videncwas given by thcompiainant, Pi1, and, his wife HadijaPW2, to the effect that ontha nigh: og 16.8,79 at about 3 1 00a,m. they were awakened from sleep by a big bang hich later turned out to be the noise of impact between the door of their house ciith shop and a huge stone that was presumably flung at it. Thb of his bed and procoeded to the door. On seeing that-, the hduse had been broken intohe became frightened and fled from it while screaming to his wife, PW2, to follow suit. From his own evidence as rocodc& by he learned trial Magistrate he, complainant, ran out.fir&t. H 'hdver, gave an account of what took place inside the house -without indicating how he mana- getowitness thë.same. To me it Seems clear that what the corn- plinant told, the lower Court regar,ing what happened in the house aftor he had .fle&ttierofrom mustl be -what he was told by his wife, That being the case his evidenc on this aspect ofthe ase S • ., :'TLc is, therefore, hearsay which, I hasten to say, is inad.missible in evidence0 The same which, incidentally, was wrongly admitted by the learned triál'Mistrate is hereby struck off the record, Hadija, P142, hcwever, t!estified to the effect that on reali- zing that their ho,se had been nv.j34 her htis-band, the complainant s began to shout 3oudly• The Ihtrudci's ordered him to shut tip or else be killed. The complainant then rn away using the rear door. She tried to foiaQw .. him butbefoPi6'6&1d ,ét out she was cap- tured by the applant, horewa -thoi burning lamp in whose light she saw him, i,e, the appellant, clearly: She knew him before The appellant comuindod her to show him whdre she aM her hün1ard kept their money. • .:Sho told hi that they had no money. He then picked up a radio and a box ooitai'iing articles of clothing and he passed those over to a companion of his who remained outside. There- after he turned to heagafriThEd hànèd monoy. She told him that, there was none whereupon the qj>pbllantl companion told him to kick her if she was being stuborn, This scared her whereupon she showed the appellant whore the money was. Ther was cash, Shs.200/=, at the said place0 The appellant 'then cJi$ his companion to Oorne forward and took at the same, Howovor,the two of thorn were busy concoxniig themselves with the money PW2 found an opportunity to and she dia oo from the appo1In''a "Ctiody't.. She hid her- self nearby, While there she oerheai4tho appellant and hia..:coin paniori that 6h& h àày with more money. Fearing that they may spot her aifr'her away into the bush. She orn9r.god later therefrom aft 'ti tuaors had left and only tofipd:all their clothes gone, Thma1ter was tIin roporteci to the Polico, The Police officer who ,rstod the scene of crime later in the clay gave evidence in the CpFt 1elow He is No A 2468 D/Sgt Mwasaral He found, and piokqd uan iron 'bar and the hugo stone,h P1, at the scone. He also saw the brokcn doé of the oomplai huo. He was told that the appellant was one of the 1ntruder.+h11owent to his, i.e. appollant's, house but he did not find him' Ic, PW3 9 returned to the said house two days later. The appellant as still away. He, theiore, asked a neighbour to inform the appellant, on the latter's return, that he was rqtured at the Police station. Five days later the appellant came whoretipon he was arrostc subéquentiy charged. 4 a.. Thoappellarit put 'ipa do fence of alibi, He *oid th iial'' Court that"he'left his village on 15/8/79adh', procoadod tô:'fungo v'illagcto. treat his sick wife. He returnd.n:l7.4.79 but he &i not 'hé'a'anything. Ho, therefore, went back: to Kwafungó village where stayed until 23.8,79 This time when 'he returned home he.asin—' formed that he was wanted by the Police. He responded whereupon he was charged.. '• The appellant called two witnesses on his own behlf at' the trial. DW2, Daudi Athumani, who described himself as simply relative of the appellant's wife stated that the appellant°• wont to Kwafungo village whore he, DW2, also lives to visit his sic€ wife. The two of them spent the night together 'until the following morning, ' He, spent the wholo day there until evening "when he left for his 'home, about four miles away. DW3,Fabiano Daudi, the appellant's father—in—law reiterated. what. .Daud.i, . DW2, had already said. 'Thèrè is.'no-.doubt that the breaking in and theft took place as alleged by the prosecution. As the learned trial Magistrate, quit9 ',c±rec,tly, observed., .the only, point for consideration befOre him then, 'M it still is now on appeal, was whether the apellant''ias properly identified, . The Court below, was satisfied that he was so ientifie&, }Iowever, as a±'ore mentioned. the trial Magistrate took into account the ovidnco' of the complaIrant which was. mainly hearsay and has been ruled to'bè'inadjnissiblo. Neuertheles, there still remains the credible evidence of Hadija, PW2, On her evidence she had both time and opportunity to see and identify the appellant after the latter had seized her and talked to her, demanding money, in the light of a burning lamp in the room. To crown it all the appellant was not a stranger in her oyes; both of them being residents of the same village. ' Admittedly the trial Magistrate made some obsorvtions on the alibi of the appellant which, it must be pointed out, were un- called. for. The fact of the matter is,, however, that he fbund the alibi raised by the appellaiit to be falsa and hat 'he, 'appellant, was clearly identified. • .. Qny evaluation of the'did.ence I, also, am satisiec1 that the identification of the apelant was sufficiently established and that the alibi pleaded by him does not raise any áoubt in the mind. of the Court. Turning to ontence, I notice that the total value of The stolen articles ishown to bo Shs.,OO/= iii the charge sheet. If this was proved then the sentence of three years imprisonment imposed in Count one would be illegal as the same is below the minimum of five years imprisonment as 1a4 down by the law. Of course the law empowers mc to make the necessary rectification in such instances. However, in the instant ease I feol negatived so to do for the simple reason that that total value of $hs.5,5 00 /= was not established by the evidence. The only monetary ,valuo proved in this case is that of the cash, Shs.200/=, itself and nothing else, The value of tho box, 8 pairs of long trousers and the Philips radio was not shown let alone mentioned. by P. and. PW2. There is, there- fore, some doubt on their total value and the appellant is entitled to the benefit of that doubt. In the event, I leave the sentence imposed. by the trial Court undistrbcct and the appellant will have benefited thoroby. Before I pen oft' I consider myself bound in duty to make a few observations for the benefit of the trial Mg, strate,. the Police officer who prosecuted the case and possibly the Police as a whole. To the trial Magistrate, as this Court had ­ oQcapi,o,n,t,.Q point out before it is wrong for the Magistrate presiding in a trial to merely sit back and act as a referee in a football game. It is incumbent upon him to take a more active part particularly in ensuring that every witness deposes on matters within his knowledge and on which he/she is competent to testify. In the instant case, for example, the learned trial Magistrate couid'haveasked:PWl how, iie saw things which happened behind his back. It was jôt..:próper for him' merely to sit there and listen to the ôomplâiñant (Pwi) méntfon things which, on his own evidence 1 it was imosible for him to:.observe. To.the'prosecutor, if he did not know before, then let him•.1 now now that it is incumbent upon him to adduce' admissible evidence proving overyelement of the offotce charged.. In parHcülar all the parti- • cars of the offence as laid in the charge must be proved and this includes, iita theft charge,' the articles stolen and their respective • and/or total value. Failure todo so may load, as may have happened in the, instant matter., in a failure ofjustiqo whereby a.criminal is not punished sufficiently or according to law, To the Police as a whole, prope uvetigations must be con- ducted in a •.ao before the acçuad are, as i were, hustled to Court on lesser ofThnces whereas the factsrnay' disclose a more serious offonco. In thO instant "matter, for example, there is evidnnce to show that the appellant was j a group of trae persons and that they were armed with a gun. They also got the money a'ter threatening PW1 •, I.. 5 ••e with actual viOlence. In the circuxnstanOos one wonders why, if proper ihvostigations were carried out in this ease, a more seriOus charge of robbery with violence was not laid at the appellantts door. All in all this appeal fails and it is dismissed in its entirety. Delivered, in open Court at Tanga this 18th day of July, 19800 el (H. E. D.41a) JUDGE