19830716 TZHC Mbeya 1

4- • 11 .iiI r ( rf r\rT >m ( r Cl it Jl?]Tl]l JUF1SDIOIhC1T h:GH ccuio cFd..I:rd.L 2R1L TO. 71 o 1982 Of ThJJ CRL:Ti.m OE PD. 82 OF 1982 CF TEb Tb iTT2ICT C. I aT OTT ICTEYd. DI[TTEICT .b? IL'YA BhiOFIh_Ji.LUiEQ1EELOJJ1 TlTCISTEJTE FILLY UT TJdLI . . , . 0 • . , i'iPFELL.hI'TT (Oridinal Accusoci) VOTSUS Ti-Il REP1IBLIC a.., EESPOETUIIT ( Oni .4oial Prosecutor) lstco Stea1iiiT from motor vehicle c/s 269 of the Penal Code Cap,16. 2ndcountg Robbery with violenoc c/c 286 of the Penal Code Cue. 16 of - he Laws, Eut Ezekiel TTun'po Wi, an oFluont farmer and buoineosna: rocident in the hir port hueto Tiboya, was on The niht of.. 6/3/1932, unsucpectiny onjoyinc' the sleep of the ier:ocuni, when ho ias uwakoned from cieop by a calculated nook on the window ci' his bed—room. Outside and nocking the window, was a man nolOand. aniL pountin0 a spear at RTI, 1esuin5 threte, that should. Wi oo out, he would never 5cC the inside adam- PT'Il would die,. That 1 71 11 said.: back iunaorouslyint'o hid bed, usa result of such throat ci deaTh, Cofiec c1'1ai1enfe The do'in of 7/3/1902 r ogled, UTuE, a tyeo, a mirror, ten spanners, one ponson, 0ooce puoo, ra2 iiTits, hattory wire, one coil, cor iid.hter, fiito, one ocedeno. or, cue sprin two tubas, had been stolen, frum the inside, and. -the T'cn± qf the j1y1t5 our TZ 52221, that Was at i 'aor 'm c e, eutsi L at 0 a iao sL, was a fincTaa that, the lower court could not nosro uouiou, tnd 1 concur with trial • colortin such a findi:ig.' O 1oricusw the Ouosticn was who was, or., were the culprits bore. The suseicions woro ihecralia trained, or directed, on the 1st accuced., herein the apodllont, The aoof Jc cc co di, ac B 6643 B/C Cicn, who so search of the appellantft ho-woo ro ftuitl000, thoui ten races ñ n the appellant's liouce, • Tro and mind, that wore identified h PU].. as his property, voro rèoaooaeJ d.hd accordini: to B. 5875 e. - 2 - B/C Osmund P13 on the 8/2/19 82 , the aiellant icc.. i3, to a place in the iOSiZC shaa:a, not f:.r off the :elia:t' s house, and 3cnfcssdly urjoar thed the rest of the property, that wore - lso iciUfiod by the coriplai- nant Phi, a his property. The appellant do ndod himself unsworn, and staged an alibi. He elaborated -thit, on the material tine, he and his defence witness 1s\iile 1isar.:b, had boon on, agod by the J1ITZ to roast meat, which work they porf.wa:at' till 6 a.Ei of 7 1 2/82 q Only to be arrested and searehed after 4 p.m. he added without further elaboration, that, the tyre was recovered frora the fields. Thiie the appellctnt's witness did confirm going to the TITZ, Cnp, at the iirport, with the ap'eellant for moat roasting, 'the said witness, said the exorcise ended at acout 5 p.m., sane day, when they. went Lack hone. He added that at 2 a.ra. of 6/7/2/1982, he was not with the appellant. The trial i'Iaistrate felt o irJ'iibitions in rejecting the artificial alibis found the prosecution evidence credible, and cunvicted the appellant on both counts, and sonter.cci him to one rear, and seven years imprison- ment on 1st and second counts :D5'sctively, sentences to run concurrently. The appellant is expressing griava.. eec, among others, on the following / ........ - H. 0 0 ' - material rroirnds '(a) That his dfencc alibi, was not gd7ei: descrying considetion. • (b) That the articles recovered, were not pronerly identified by the Ocap1aifiant ...Ti (c) Thttt 'the preference of two cothits when the a1leed transadtion was only oiie, was a" oss error, on the "w',rt ' 1' the prosecution. That the trial magistrate orred, in boliut"ing that the discovery ci' the snia j:rearty, was as r.. ult of hi.: confession. I ooall heroin :..ccbar ..o etncnt p er c of iJocer, tu o see how juctific(. Is the appellant 1 gr...'unis of ccmplaints. hith the finding of fact, unassailable in n:vicw, •tlit the complainant.t s propLrtic were stolen afte, , ±hroat of eth were boIl out :gaint hin 'the ap'e1lant now charges 'that, it cc-ulc! ot'ossib1y :r, -- een bin, as he was roasting meatat the JhTZ. Camp, . at 1Lc:.Ta ir. Port. ror one thins, I aT3e with the appellant, tha't 'the trial magistrate did not (iv,e. this defence, tlaougi oa1cu1mtOly c'tngol, oven a g1LIJCO of attention. , •0 I shall rcmuiy.tLis omission, by u: urtcl:i:i the exercise myself. Indeed it is on record, -t1- ,h't, the np1lant said, he was with his efenoe ;'ri'Lies, roacting moat at the JhTZ .Cm.m thrcuaout the ni'it, cane back home et 6 a.ra. But his dofince wit:oss -. Lswile Nsyanbo Th12, - while ' conccding, that he ani..apellant had ben rcastimg..ncat at '-the I -3 - on sane ialr, Jr Caup, he :aii that the .:1:ole o::oroise eaot at 5pm, :T hoC., will observe an when they all went hones ivon the oe that is obvious oo:±ot, o:C tooth Onv between the aol1an, and a witness of and his nsa oheico ni if i.; ntinh e::orcioe ended at 5 p.ue, icr in on:iarly of the aye1lant, then olvicusly Dh2, was thereafter, c - .s as free as air lay the tine of the as. per this. vc:'siw.:, the r::elbaiat or calhin2 p.12 altar, for incident. I find :arelf utida laT;clliad, wha ThC2 said, even the a-apeliant truste 7-hiw. I ascowdi:.., by bliuvC course that has nefative and inevitably find the a ellont lyin;, a consecC-iol000s. It follows, and to say othoaaieo would ho sophistical, that thouyh the anacliant z10 Oil Gy 0± ouind ale 01101 he hid cord is suf.lerin fron extensive vo1unthiiy sth:eC-, the onid ali.i was p c10 This ound thcre- lorfaide, and only fit icr rejeoti a lCaich I hereby fore fails. Cfcaese, with or :ithoot alibi otr joI, an with or without a leakinf ailli, ithcut euiJ.e::co, ( cad there is none) by the couplaifl t that, the anjollecat was - c:a at the 'cone of c:ciec, reluctanly thou, Iho blind ally is Ic 'toally the 1c:tiaaticfl. Ilowover the trial uafistr - who tc::tidtth be:Toro litre, that aft: r hh± .:rollant' s te boliTeC- confe:oicp he 1h3 was led oo who:ce the article: collectiVoly tondered a well nat did with as e::hihit T, her a found aI a: .oarthod The 'awl a oo:iat±a, eai:wlt, cuba it , th .t, the articoh unearthed the c. - laincat Phib cc :nl,nant is cr3 not a: aerly ileflIlfi of, as I ro: saliclb of, as was the trial court, easily oiSfCOlJ aali:: any cae 9 thither tI±d± P11 did identify tiz ropuaty as his the appcllath, nor any holy othor than The cor:,l:L:lant has at at an te, laid eonpc ti:y clam over, the :aath arcperty. This onnaS is also The ai:pbllant' s cniplaTht, anony otI:er that the prosecution fell ihto a drosi; and berina5 Crrcr, in acieninC ho counts, when the ise a e. I snail pay on c onc, ccc no cc rve carolul atentien to tao cone, no too on nlain is not without siL 1 ba re, cc hive to concede, ance. If, eve t e devil cm to Ic in a cme o t1e i aoe seths, the set of cur o oprl , ba I eae Thr a or recapitulation shows f ots, r t'ausct_o, wa b ie ll ass rnises, woke up 1 as, r colpri , e tire re Honfent and threatened loin kci'tia eath, if ho' carie out, and what o ne aiscc yere, was tue s of the ro 1 catana nbo\ e c auro2ted. . . . .14 -4 - 1hat therefore Pro:linentl: stands out, as a 0. ..n tooth in the nouth, is the talished fact, that 4hatiey thn r.ro:.utieS were stolen. fron inside the vehicle or fron its :od, the thioaio of use of violenco, or death against the caunlainant, 'rero fimctionallr applied in ardor to obtain, or steal the said Doopcoty. Throats of violence cauld not be isolated from the theft that followed. With throats of violence first, and theft followinL; heols, subjoct to proof, the accused should have been ciarged, as he in fact wns q with robbery. There was therefore no need for the first count, unloJs it was charged in the alternative. I would respectfully subait, thatit is a bettor course where the ohges are founded on the sane facts, as in this case, or are part of a series of offoaces arising out of the sone transaction, or are of sinilar kind, to charge counts in the alternative. I shall therefore in this case treat the above as alternative counts, and thereafter see which count, is siist'inable. Loicaflj and soquen:iall, the appellant's other complaint was that, the trial nagistrato erred in believinG, that the )roperty was discovered, un—earthecl and found as a result of the appellant's confession. It is pehaps moot, that I here and now, exdhin6 the trial maistrate s trcatnont of this aspect. The evidoice ±caring the alleged conf6ssion by the apellait, was by Ph3 B 5875 D/O 6smunal who relevantlr ntd aIla said, and I quote - "!t the tine I rcceied 10ormation the accused persons wore alreadi arrested and H were, at the police station Mbeys. - . we took accuod yqPsons from lock—un and went .. with. then to hpir hioucs, for a search. the iay to their be ic accused iTo lj dnitted to hy p r gper y and said woe 'c y to sho't them to U$ When we arrived at JTi .S .. o und tcrtr which the aocoscd she ed us. They were hi'en inr the rize shnLo do the earth. - P'I1 was, also with us 1 Nl identified t1e poperty to bb his." The, trial. magistrate did easily, and in that rosnoct rightly discern, that it .; s, the cQnfossio.n by the amollant, 42 . it is above clear, that lcd to the discovery of,.thc stolon pcperty, and I find without ,quaJs,. that this was so, Again with 'approciation that dons not, necessarily enjoy counciny of depth of tucatnont,, of the previsions of soctipn 31 of, th Jvidence 40 1967, heroin qfter to, be referred to s th. act, ihich was found applica1le, the trial uai 'trato proceode4, to convict A - the. a -)')ellant with a preaublc that runs as follows, aid I 'quote for ease -5 - of ap:reciationg- Since Willy i .:. . i -: a - ion whIle in police civ, than secthn D1 of the Lvidenco Lot 1o. 6/167 is relov..rh and the evidence just quoto:i can ri htl: - be considered aainst the accused, not with tan:Ln:i.n fact, that, it was confe:ion before a P.Dlicenc.n. I an of the view that y the prosecution has succeudd to cnvbj.asa the cae rinst the first accused of the fi:ait s.i:.nt. nc I convict the first accused on the firct c.n.nt. In VjC\i of t is coafosin:i, and upcn the finding that thu proueri?r stolen was reovored within burely 24 hou, after the cri:.c was committed, I hsld that, the doctrine of recent nossession applies to this case in rosnoct of the second count. And I convict the first accused on 2nd count as well." It does easily omerc2c from the above, thc.t, the trial naistratc built his conviction of the aprullant on the let count, on the provision of section 31 of the dct and of ths 2nd count on. thu allood confession by the anpellant to 1, i3 a •Polico Officer. I do entertain cualr.is about, ths prugriety of the adnissibility of the whole of the allod c9nfopp lo n,under sectica l of the act, and it sounds racot, that I consider Ei.nd re—exanino whether such a11ued ccnfossion is indeed aC li.3Giblc urdér systion 31 of the act, - revisit. of 701 c tcsti:o:iy ices reveal, that, the appellant was in the policu cust(.r, whoa h allo:cc11y confosaci paticiption In the theft, and irolunteurmd to ow the p]o, whore the prpportie Iröcd u e yrcphtfas nv= ino rioi, and idontifiod by PW1 as his pro- peri&s. This beinC the case, and Ian satisfied it is, the provisions of section 31 if the Lot. are indeed apicahlo. W are its essential conditions? I .iha1l rresèhtly e:anine . the us ntial conditions, of the provisions of section 31. of the Lot, For ease of.feence hôunder reproduced, are tho si.drovisions- When any actIe dlienosod tp,7as,tiscovorMin . consenuonce of information receiyoI from a person ccdused of any offence in the cutody of a police officer so nuch of such information, hethL.r1t anounts to a. Qonfeaciun or.not, as relates distinctly.., to t'-ic fct_1hur; ascLve1od i rolev rt.tt The conditiors necesaecy to rlrijtho nxovisions of section 31 of the At into cpertion, a;pcar to no, to be as follows:- (a) L fact must be- deposed to, as discovered. (L) Such fact siust have been 1icovcred in consequeece of i11foTnaticn rocoivOd, or, fiv1. (a) Such inforinathc: lcadinC to iisovery, niist 3 I . 4-'U '' • •_.4 I 6 or, have b.on, vcn by a person accused of any * offence (d) 3uch accued rsun ;,.uet have been in custody of a police o::fdocr, when ;;ivin such information, (a) Lnd it is cnl:r euch information, whether it aacun - c to c. confession or not, that distinctly relates t the fact t11by discovered, that is relovmet and therefOre 'Pnissib1e, The above applied to the case in point, it is rlain, from the testi- nmny of 1M3, that, the apooilnnt s statement to Pñ3 could severably be divided into two -(i) " the c::ed admitted to have stolen the ldrty" and (2) 3ct,eacnt mo of'foct that he was reao show coup'ed ith the co duct 1oabi1_-r :. to t.a 5 pointed cut emd unearthed. it :.. s casar tO UC ,rithout cntornal aid, that, the first stateuedm, r, atement to that effect, neither led to the discovery, nor does ;t no:' did it relate distinctly to the fact or properties discovered. I would cuoielude therefore, that ç the first part of the stateeie:ct, or eth±owsnt to the effect he had parti- cipated in the thef-t,. neither 1 . to the disoovery, nor d.d it relate distinctly to the 1'. or prop.::ties dmscevc;eed. . I :ould therefore proceed to conclude that 9 the st ': at of the statement or the s'taterit to that effect was 'inadmissible, it follows as day doc ni,ht that, where a feet is disoeei to as discovered in coiisequence of inI'crmation received from on accusea person in cuey of a Police oflicer, a witness so disnosin, ought not he all. ,:ed to describe an unnecssary vart of confession, macic by an accused parson. . It 'does inevitably follow from the above, and 'this derofatin I'roi tie tri ir 'es conclusions, ro nr(hn both convictions-(l), firsts that wacce tee CO5Lt i1O'S n ccmy or brinin_ the provisions of octon 31 of the set, eit, t c'0000ds statement is onlr iolt and thcrfordmissibla ... Th ttement admitted, undéctin 310f the act, is ot Me-cessar Y -Prool of t uP of be eccusod, particu larly when auch sttement falls shot o a sion (2)socon, wucro the rovisioo of srt.o 2 31 of tiic set, he succe3sIe1i opeatoi, in cc ioras io,,Acriial te this case, posse- ssion of stolen procrty is as unblic , po ci r loadinj3 to the appli- * cation of the aoctrine of recent poe .ssicu, an as )ect of ciicums tantial evidence. I 7-. itaving excluded the first nart of the stc,tereolTt as I h,-xe above done, lavirg above hold, that, the appellant's 2nd statement and conduct leading to the discovery of ijroport:r was acinissiblo, under the section 31 of the act, it is now invitab1e, -to f± - d that, the appellant was in possession of u::onerty discovered and deposed to. Two days after the tft had hardly olansed when the arpellant was found in possession. By any stretch of isiaCiac;ion such possession of stolen roerty, so r'ecentl after the actual theft, did justify the apnlication, of the doctriro of recent poosession Since the appellant was found in possession of almost all the stolen property, so reconly after theft, after threats of violence and death, the irresistabie inference is th:, the arpollart was the thief, and perpetrator of the throats of violenoe, or, and death, rather thon a guilth roceivor. For reasons that sue obviously cliffurent, the conviction on. 2nd count is herf:'y sustained, arid the anpoal thereon dismissed. I make no finainj so tao let count s do rears sentence, I call upon the appellant to show cause why, the sentence of seven y'::: ireorisonnent hitherto awarded, should not be enhencol, ds thd the ane1lsnt hd noLn(; r.ateriI to, offer. lie this o:oocibe, I have been romindel of ht I alriady know, oy the enir Sto attorney M± Thereba, HO had aotual1y nothin to add, to mr hnowLC[u ':::at tho offOnce of robbOry ae so rcipan, that, society :i:a; be _eo:thonin, whether or not, the Government is no failin3 to 'wroteot i± Sleepless ni: its have regu- lrly, if not aftoh, :7unctuat the neoplee lives, whoa they have bcen lucky not to lose their lives, or limbs, and property or Courts roe duty bound to protect society, and impose oietences that are coriroensurate, or match the horror eroerienOOli by society, at the the hand of the cciovictC persns where oircumsancos so In this creel ënhence the sentence to ten years Ihnriscnsient. The appeal is otherwise dismissed, 16th , Dolvered tnis •...,.........D..l.. Lay o July198j. I h. h, Katiti