20000406 TZHC Dar es Salaam

.. IN THE HIGH COTJHT OF TA1'I7-u\NI/~ __ ··- 1\T ,.,D/tR .ES ,Sf1.L1\./\M __ _ CRIMINf,L APPl;;,\L NO o 110 OF 19S? .... _,....,__ (From the de:ci.sion of the District Court of Kinondoni at Kinondoni in Criminal Case No.421~ -of 1996) DIREC'rc)R OF PUBLIC PROSJ~CU'i1IONS 1\PPELLf,NT Versus HJ\1-'lf.D li.THUJ'vlJi.NI 0 0 .o C' o I) o o o o I! c o o o a o • o c • o e o o o o 4 o tt o o (Pft o o o RJ~SPOffDENT

JUDGMENT The respo::i.dent, Rama.di !\ thumani ~ was ch::-\l"g;ed with the offence of ' shopbrecldng and stealing contrary to sections 296 a.'1.d 265 of the Penal Code. iifter a full trial, he was acqu:ittecl. The Director of :Public Prosecutions was dissatisfied wi tl1 the acquittf,.li hence this appeaL The prosecution's evidence was that of four witnessesc Their evidence wa.s that for some time~ tr.e comr,lainm1t had discovered t~::1t his -·) shop goods were being stolen from his shopc On t:1e d.ay in question, 'i ' .I that is, 7th thrch, 1996? F.'.,Jo1 anc1. P.1•1.2 decided to lay a trap. They locked themselves inside P.W. '1' e :.:;:~:)1,, that evening and switched off the lights. 1\t about 7o30 p.m~ v thi:i two witness~s hP-:::•:c·d r:.:ounds of the door throwing theni outside. ancl caught the respo11d.0nt with::.::1 the c'h<J:r," '.;j~_r-:y -;~h':'::1 J:'::l.:b86 a:.1 ~.:! a:cm D.nd people responded to the ~:.:-ri:•:n~ ... ,- •' 2 Thereafter 20 khangas wh:i ch the ree;pondent hrid throvm out of the shop were taken to Urafiki Pol:i.ce Station 1:1ith thd !X-!?Gpon<lent, 'The res·pondent was th,,m charf!ed with thi,s offence. :-,:u-. In his defence, the respondent testified thr.,t the'jcom.plaine.nt is u temmt in the respondent I s fo:thcr I s house which is unc'..er the care of the respondent. On tbe ·.32.y in qu::·stion., e:.t 10.,00 a.rn. tl1e respondent told P.\~.1 to

rem~ve coxes whjcb tad been scattered a116ffL P.i'!,1 '.''/ pror~ised to do so, but he did. not remove the boxes.: llt 6.30 p.m. the :rcsponrl.ent re1'!ll'.lved two o.f the boxes. ftt th3.t point ,P.i1:.1 anpearod. He w:::.s drunk. He then sta:rtec1. bc::iting the r•,:S-;?ondent v{ho ($Ct injured around the eyes. The respondent does not say whc:1.t happened thereafter, but stated that he wns acl.mi tted in hospital for 33 days. Vihen ho wont to report to the Police Station, he was told U-13.t there wn.s a co.se ·of theft . against him. In cross--exar.:d.natio!l, the respondent said that the charge was a frame-up because of bad blood between him and the complainanto The respondent's two witnesses testified that thc:: complainar!t, assaulted the respondent for being a t:1.ief, Dncl thereafter· the respondent was taken to a polict~ statj 0110 But as he was injured, the respondent wa.s taken to hospital thereafter o They rtdd.ed th,::1.t they saw no khan gas being taken to the police stationo On tho.t evidence, it is the contention of the Republic that the acquittal of the respondent was perverse in that the evidencG shows that the respondent was caught red-handed. Learned co1msel for the reGpcndent defended the jurl.gmcnt cf the triaJ. court. In his subm:Lsr:3icn, since there was evidf:,nce of bad blood between the respondent and hi~ w:..tr.. ,~f:Goc;; ths f,V:~d.,·-r_.c:e c-f

P.W,,1 and Po W. 2 was suspect t that th8 cha:".' g0 ,,:a.<": a :~::'~.i.::11" ,,,_,_:t; ·e,,_; ·~~...-u,::o nlth(u.~t the charge sheet mentioned. 13,:-,7(~"'.'c.::. r,:::-:::/·,,:-~:'..~:., i:~,-, h:::::v·~,:.).g os:,!r. H-:~:1en-i the evidence referred to only i.:.'.J kh.ang:3.::; and t:ha·i; c:~21,:.e th•:):'E ·.,,,ere credibHity was tainted"' 3 I agree that althoueh thc particuhrs to th0 charge alleged theft of many articles, the evidence referred to 20 khangas as hnving been stolen. This could have been overzealousness of the porson who drafted the charge. Be the.t as it may, if there is proof of theft of only some articles and not all of those ;;;_l11~g:;d in a charge sheet, the offence of theft wj 11 be said to h,.-:i.ve been proved nonetheless. Let me now turn to the discr0pancies referred to by tho learned counsel for the respondent o To ste.rt with, let rae point nut that there is ample authority for the propnsition that discrepancies or contradictions in the t0stimony of witnesses should be narrowly examined to see if such discrepanci8s call in qu0.stion the gci.wrc:.l credibility of such witness or witnesses. But it is ~liscre"9ancies on. broad points and not en trivial or ir.1r,v1terial details wlJ:i.ch must. he col'.'tSidercd. Witnesses who gi v2 Rcc,:>unts gs to an incicJ.ent witnessed by them are linble to contrad:i.ct. one another on tri vi2.l de-tails.

If there arc no such discrepancies, it is ,'Jften e.n fodico.tion that th.Gir evidence ha.s been commi ttcd to memory or r0bea.r.sed. In tho instant case, the broa.d points in the c-:ase a,"".'e: ( 1) where the respondent wo.s at-r0st 1:::d; ( 2) when he was arrested; (3) w_hat he had clone ,just before his arrest 1 and ( Ii-) what happened to him after his arresto i\11 the prosecution witnGsses who were 2.t the scene testified that they laid.a trap to catch a person who was believed to be stealing from P. W. 1 1 s shop; that they were locked inside the shop; _that the ) appellant lat~r,broke into the shop and start0d r€moving khangas und throwing them.out of the shop; and that PoW.1 a.'1d P.Wo2-apprchended him inside the shop, ~t'hese witneases are cl.so o.t o:ne that the· respondent was then taken to <'".t r-o~:.:t.i:;e si.:A.t:i.o:n with the khangas~ This evidencB j_,5 confirmed by tht"'1 \:'~.'"~.:l<'ll,<;<-.: ._.:,: d. _l,(,:.:>-:':- ofL:.:•:>.:.' (j,.Wo3) \•1ho saw the kha."'1gas 2.t tp.e pc-J..::.c0 rs·~.,,. ::::.:},s . .- ?..n/ cun-::r-c.,c.ii:.~t:i.crw bet~:een these witnesses, merely conGt'':t'nPc. c1-.··.:0.:.~.,=:.,.. L.l·..i~ . . ,d~ · t30me <<" t!).0 _witnesses for the defence t2s"i.::it":i.;:;d i:b.at ·tho :~·0q.u1~J.en"'..; ,•Nii:! ;;,;ken to the police station 'b:,r P. W.1 v.:11.0 to~i_d the polic(~ ·i.:he.i; ti1';; respond.<=rnt had stolen his property. It is

certainly true th=1.t appollnte c:)urts will not lightly interfere with findings of fact by a tri:i.l court. But it •will do so where tho trial court r-1i.sinterpreted the c-v:i.dence or where the trial court has obr:i.(msJ.y gone- wrcng. !,s was sto.tc::d in th;:; c2cse of Coshl~_~,erl~!'d, (1898) 1 Ch. 7o4: ,n.111cn the question aris0s which witness is to be bclicvod rat)1:?r than D.noth8r, and tha.t question turns on manner 'end demeanour, th1? Court of Ayipeal' always is, r'tnd i)r,rnt be 9 guiJ.cd by the ir:1pres,5ion .!:12.(:E.? max. ob ':_i,_ou sly,_~es-:,!l-1eEE}.E~~::.s_,_g2_.lli .ajk<rt--------~----.....-• from ma.:nner i:.md demeanour, which may show :P-~~-~c?:tcment is cz:~1?1:.?_cE.!!,2~t and t l ~ - --~~---- .~S.~.:~t.;:!;;;£3S may "!..~~nt lb_? .•~t~r_i:.J:E1:.,_dif_f.~rin~. .f.ron~Llyd.f£_<:_,_2.':'.0.!l:_.2!:~ !!. q,u~~.1.5~~~!.. f0ct ~j._Jl~ en_ .1!2'.:... . cre.c~~;]?J)i . tr_~9.f.. wi tness10::: J::l~.,tj:ic court has not seen'••. (Emphasis supplic=:d). That passage was quoted with a;:-il?roval ire th:o c.GBEl ·---·-- of Pandya Vo In the instant case, the Gloquenc<! of th0 prosecution's case was in no way materially dil'.'linished by the r1inor and inc0nscquontial· discre- pancies. The evidence clearly establisherl. that th.e respondent was quote red-handed with the stol<m clothes at the scene. In 11y view, theroforei the trial court's findings and conclusions wer0 porvsrse. the offence as charge.do I\ The record of the trial court sha.11 be r8rni ttecl to the trial court which is hereby directed to pass sentence on the respo- ndent according to law. B. D. CHIPET!t

JUDGE ~- 6/4/2000: Coram/ F • .S.K. Mutungi, DR-HC For the Appellant: Mr. Kamca (State Attorney) - ,._ For the Respondent: Mr. Maftah Advocnte CC: Shomary COURT: Judgment read this 6th day in Court in the presence of Nr. I<amea for the Republic and Mr. Maftah Advocate for the Respondent.