19790105 TZHC Dodoma1

N/ '2- IN THE HIGH COURT OF TANZANIA AT DODOMA . APPELL TE JUiISDICLEON 0 CRIMINAL APPEAL NO0 74 OF 178 . (CiUGINAL CRIMI?AL CASE NO0 350 OF •1977 OF TH DISTRICT COURT OF .SINA) GIDANGHUDIT Ca KWAKA GIDAWAS 0 ' • .' ' 0Appellaflt • •': .. (Original Accused ) Versus THE REI'UBLICO o 0 0Rcspondent (original Pro'scutor) Chargel Cattle theft c/s 268 end 265 of the Penal Code JU D G M E N T CHIPETA, J. * The appellant was ch Lrged •bidoae Sinid:i District. Court with the offence of cattle theft c/os, 268 arid 265 of the Penal Code0 He was, however, convicted of the offnce of retaining stolen property c/s 311(1) of the P..nal Code, and was sentenced to five • years imprisonment0 He now appeals0 . The evidence adduced by th i.rocutionwcS that during the night of 3rd March, 1977 7 at Mvae village, Ilongero Division, in Sinqida District, some f iv: h ad of cattle belonging to the complainant, one Daniel Jilili (p.11.1) were stolen0 Efforts to trace the cattle.or thief s initially, proved fruitless0 Meanwhile, in AlJril, 1977, Kijoji N1.nd of Ilonqero Division reported at Mangida police stcvLion in .Singid District' that ten of his 'head of cattle h -id b an sto1en0 On 30th June, 1977, P.C. John (P0w03) of Nangida police station received information that semc cattle blievei to have ben stolen were at Har'..a vi'llaqe in th... neighbouring Kondoa District0 So P0w03, accompanied by th- said. Kijoji Muna, proceeded to viI1ge0 In a cattle kraal belonginqt the ap 'ilant's father, p0w03 nd Kijoji Muna found some ton had of cattle whose old identifying marks appeared to have b . .n tempere.!'with in that there were, fresh marks on them0 out the, ten animals, Kijoji MUhã idthntifie'd six as being some of his stolen cett10 The ap3l1ant c±aimed that all the ten cattle were his :roperty0 p 0 w0 3 seie'd all of them, and the epl1ant was chargd and convicted, inter alia, of the off ..ncc f stealing the six cattle broninq to Kijoji Muna0 That was in Sinide Criminal Case No0 261 of 1977 I will have occ.is:Ln to return tu;:that case later 'in this judgment0 •. P 0 W0 3 later sent. out msshc; to neighbcurinq areas asking all persons whose cattle had :en stolen to go and view the cattle ].ying under police, custody at Mangida police- station0 The message reach-d on S:tlim Tilili:(P0W02), who is a brothet of P.W.1, and who was very c.nvrsent with .P 0:W.lts cattle and L their identifying marks0 Those identifying mks were branded letters"D0J." (representing the ner' .5 Danidi Jili,li-) cn the rear rigFi& lg, brand marks around the ear, two parallel brand lines cn the fpre leg and hind right leg0 The tips of the tars were cut off. 0 -2- On receipt of the message sent out by P,W,3, P.W.2 went to see the cattle which were in iice custody. On h-ing shown the cattle., P,W.2 identif'iedtwo"cows 'ciIt• of the lüt as belonging to his brother Daniel Jilili, This he marlacJeci tojo from the identifying marks of Dani€1 Jilili. How.v:r, ho noticed that the cows had a:ditional ideritifyin marks. The cows had three parallel brand lines, on the ribs thur on the hind ings, and the tips of the ho.s had been chopped cbf, Ho also noticoi that those additional brand marks were n.awcr than the original marks. P.W0 3 had also noticed this fact at the time ho seized the cattle, and Daniel •Jilili himself noticed. this \rhon he wont to identify the cattle. During the course of the :riai, and of tar the close of the prosecution's case, th. court, moved to the plcice 'where the anim.ls were kept., and in the presence of the app ellan, each of the identifying witnesses pointed t the marks which each of them had described in their ovideic., In his defence, the .,apaelient citimed tht'the two cows were his own property, that he i.". n..t buy them from any person but were off-springs of his ewe cows, and that none of them had the letters "D.J." After carefully ccn,sid:.'ring th.. evid.nc before him, the learned trial district magi.s.tateeacc ;ptoJ the evidonc of the prosecution and rejected th it of the :L:fc;rce, Having so accepted the prosecution's evidence, and, having hiAW'1If"s.un the identifying marks on the two cows, h'. w:s satisfied and found as a fact the cows bore the marks of th.. c :oç.lainant, 'and.. that the additional marks were more rocer± than those of he complOinant , Having addressed his rnihd to the circumstances in which the animals were f'bund, the l'.arn.::d mqistrate held 'that the appellant had fe'oniously ..btoin:cI the same. 'But after paying, clue 1regard to the pbriud ......t olapsd. between the 'theft and the possession, he found the .apoHilant not guilty of cattle theft but guilty of retaining stolen prep. .rty. Mr. Mwailunga, 1 ..-arnd counsel for, the appellant argu d the app al on thc , following gr un s 1 That the trial mjistrato errod in law in th't he formed the opinion that sine, marks on th cattle were old an.1 oth rs n i we Lb uL c vic k-nc That the trial m,1SLr rrd in low in holding that the appellant had kw1dg ,or.bJlief that the H . ' two cows were feloni:usly o:aine(1 or stolen. That th mann r in which h trial c )urt wnt and viewed t'--he cattle f r uc S $ f i ntification by the prosecution w'itn..so.s occasioned a failurP,cf justice. In the alt rnativcj That th trial ma 1L c u ht t have ord red the .s ntence in the instant case end the substantive 'sentence in, criminal can.: nc. 261 of 1977 to run concurrently. I propose to deal with th:. groun.i of a.'eel in the order set out above. With regard tb thd first round of appeal, I am far from persuakd that one n s 1 rt vi' nc to decide H ......... .. -• -3- whether a particular brand mark is nw or cic1 I w;ulii think that that is a question requirinq cerilmon knowledge en. good sense0 Any sane person with average ability an snse of sight ought to be able to tell a fresh of n-w brand mark frcm an old One If that be so, I am of the view that the 1 med r istrate was entitled, on the evidence 1). fore him and his own o servtion of th marks, to form an opinion that some of the marks on :b: cows were old and others new0 I now turn to the sec.aid. jr:.'und of app.ol0 The question wheth'r r not a particular pr.pLrty was rceived cr retained with knowledge by the recL,:iv'r is not to be answered from the abstract0 It can only be answered after a careful cnsic1eration of all the circumst:mce. Such circumstances may include the n.jture of the article, th c:rcumstances in which th receiver or retainer was found in its possession, the manner in which he dealt with the property, his c:.niuct, and the explanation (if any) which he offered0 In the instant case, kiric. it is found as a. fact, as did the learned magistrate, that th . .......ilant triJ to disguise the cattle by branding thorn with fresh marks close to the original OfleS and once it is a Iditionaly f. und as a fact that the appellant was naive enough to deny the obvious, such as the fact that the cows did not have th 1 ttors "DOJO" when such letters were pointed out by the witn a; :s in his pr:sence before he proceeded to deny their existence, then an infer.;nce that he received or retained the sane with guilty knowledge b.crnes irresistible What other reason coul': th.. ai.p::ilant have had in putting fresh marks of identification c1.oe to tho original ones on cattle which, as he claims, w. :3:: born in his own kraal? For jhat'reason did No deny the obvious? On thL: fcts as found by the learned magistrate, thar-efore, an waich facts I have no reason to impugn, the ledrned macjistr:d.owos perfectly entitled to infer that the appellant knew or had aa,s,n to hiive that the two cows had n feloniously obt ein,,1 0 The third gr und of pp'.aai has some merit0 As pointed out above, it was not until after tb dos.. cf the prosecution 'case that the court niovecl to the piece ;ih::re the cows were for the purpose of identification of the anira-ils by the prosecution witnesses0 Mr0 Mw-iuiunga comoiaind that this ju ic.1 Lh ilant in tht he was not given the opportunity to croas-examnine the' witnesses ..,'hereaftt-r on the identifying marks0 Th ro is som.. merit in that arqumnt0 In gnc ral, wh r withss.. s n-v tc i ontify a -particuiar object, the hetter'practico is that such identification must be done before the close of th-. 1:recution case so that, needless to say, such witnesses can be re-called, if n.od'he, for cross-examination or further crossexeiünatin by the accused, or his adv.ocate(,jf any)0 . The question, howe.vor, is wheth.,r that irregularity occasioned a miscarriage of justice0 It will be notd that all the witnesses did was to point out and seew, to 'th court thr various marks which they had described in th jr evid.;nce.0 As , it turned out, the witnesses descriptions of th: marks in th,:ir evidence conp.etely tallied with the ,marks 5 :efl tWo cows0. The apt) lant had the 'opportunity to, and di'. cros'sexamine the witees on this point Indeed, h w'is L.res.:nt whàn the -iteses poizted to the marks 'on th,: crtti. There c..uid, ther'f'oe', have im en no reasonable ground for re-calling the witness for fürthe' áross-examina:iun bcausu nothinj new cane to light as a result of the physical idaificatin of the cattle0 In"those,circumstancEs, therefore', I ran of the considered view that it would not be reasonable to say ht such irr gularity as there ws.occasioned any miscarriage of jusi . It is, Lhcr.f ore, curab1 und r the provisions of seca.on 36 of L1_ Criminal ' Procedure Code , e -4-. For the foregincj reasons, I. s:.:e no merit in the apoeal agaiinst the conviction0 . I now turn to the altarn::P:ive ground of 'al, and that is whether, in the circumstances, ih 1. arnod trial magistrate cou]c1 prope1y have drcicraT .th SafleflCaS in the two cases to run concurrently0 It tppears to. me that wh::rce several related offences are dealt with at ,iffe.3:1t trials, the trial magistrate tryina the secciiJ off. :ncu may ordur the untence he £entenc' 'd.mpos s te:eeun concurrdntly with that imposed in the first case. It also pears to be hc general view that an appellate court has powei tu convert consecutive sentences, imposed at diffen.triels, into concurrent ones 0 This practic2 finds justification in thd provisions of section 36 of the Penal Code, idu materiel pert of wbich r?acls: • 11 36. Where a p.rsdn after cnvict.ion for an offence is convicted of anothr ,ffaecu,, uithr f fdr sentence is • frsc i pasSed upon him Under th.. conviction or before the expiration of that s:ntulica, any sentencc., othr than a senae-nce of death or cf unihment, which passed upon him under ha subsequent. c.nvicticn shall be executed after the ox:iratl n of the former sentence., uless the court 'dir.cts that it shall bt executecr concurrently with the former sentence or of ny part thereof".. .• . ... . . . . - (Emphasis added). • . Now, in what circumstanes will a curt at first instance or an appellate ceurt exercise its cliscretic.n to order such sentences to run concurrently? In th .. case of Yuda Yakobov.. R. (1.967), H.C.D. n0405, the facts°war-e '.:hfi in separate trials held on the same day, the accused was convicted: of stealing shs. 2,062/= from Shinyanqa District Cuuiciln with ste:d.ing shs0 5951= .. from the Tanzania Government0 In .atoh case he was sentenced to two years imprisonment with twenty-f. iee- strck'., thus the sentences totalled four. years end 48 strokes0 on apeeni, this court (Mustafa, J., as he then was) belt chat as the two. iffonces could have ben charged together on the same charge in Jiffcerant'counts, and as the offencas appeared to hav.- en ccmmitted in the course of the samo transaction, the sente,ces -of imprisonment be ordered to run concurrently. . . In the case of Ali Moham dv.R. (1968)'H.C.D n0 63, this Court (Biron, J.) orderd S ntonc;s at imprisonment imposed on the accused in two separate trib-is of twc,differ. nt burglaries ccmrni- tted thiee weeks apart to run concüf btntly. Unfortunately that case is so briefly di;ested that .th- r.;asCninq of the learned ."Judge is not given0 . .. On a careful p ruSal of 'section 36 of the Penal 'Code,:,I amof the humble view that the eucLion not give the courts the power to order sentenc. s to a - un aencurrontly in every conceivable situation0 What it'Jces sayis that as a general rule, sentences passed at s enaetc trials must run consecutively unless the court sees any r....sun' for ordering them to run concurrently. . . . In my view, in qeneral ;. such sanOC. n1y be drdered to run concurrently whorC it: is ele:Lnto the court that the offences are similar or .'wh'efu funded' on the sdme facts or formed o were a part of aSefits us th same or nimilar character committed in the course f tb.: sar: transactioi, and that the offences in the two trials could-properly have been ..../5 * .5 LLether charged,n different counts0 -Suèh sentncàs could also he in the odered to run concurrently'I 'think, whe the surrouiding same ' circumstancs in the two or more cass n:e such that tha resulting chárge ... duration of the sentences would So:ar outwigh the gravity of the offnces as to result in • failure f justice0 I do not think that the section empowers courts to gratuitously and indiscriminately make such sentences to run concurrently in,, every case in which there have b'en separate trials0 There irnst be circumstances in the cases which .justify making such ziri .3rdr. In the instant case, 1 nat'that the a p.11'ant was convicted of retaining stolen cattlo— cattle which wre:.stolen on 3rd March, 1977, in Ilongero Divisi.n. In criminal case No0 261 of 1977, the appellant was c:'flvicted on thre counts of cattle theft0 The first count was in rspect of cattle stolen on 8th March, 1977, the second was in respect cf cattle stolen on 14th April, 1977; and the third ws in resp ct of cattle stolen on 22nd April, 1977 . The cttle a 'in th:': case blong•..d three diffc rent i PopiL, but it is appernt L i Cbo pros ...cuLi'n and the trial court were of thevicw that th.: offences were founded on the sami2 facts or formed or were a ;art f a series of offnces of the same or similar character committed in the course of the Same transaction. If it was proper tc join the three offences in a single charge on that score, th...r; was no good reason for not joining the charge in the instant case with th.. 2 charges in the first trial, because it could be ar'ju ;d th:tt th.: four offences consisted of a series of offences of tb.. same or similar character committed more or less in the cours.. of tb same transaction, or comprised transactions in one and the same plan, in vi..w of the f act th it the offences were committed within short mt ;rvals and more or less within the same area. For the foregoing roas ...is, I am of the view that there are sufficient grounds to warrant th. making of an order that the sentences in th 0 two separate trials sh.uld run concurrently. The next question that eris,:s is this: from what date should the second sentence start to run? Is it to run from the date it was imposed, or from the date ther]izr sentence commenced to run? There is a dearth cf ait ratiOs point. In the controversial case of Francis Chil,JtLba V. R. (1968) H.C.D. n. 510, Biron, J., said: "On my construction (of s. 295 Criminal Procedure Code as amended, and s. 36, P roil Ccle) read together a court is empowered to ereer :i sentence to run concurrently with a prvious s..:ntcnce as from the date the previous sentence itoelf commenced." Section 295 of the Penal Code provides as follows: "Every sentence shall b d.cmed to commence from, and include, the whole of the day of the date an which it was pronounced, except where oth.rwisa provided in this Code or in the P. :nctl Code. Section 36 of the Penal Code provide th it a sentence, passed on a subsequent conviction shall be executed after the expiration of the former sentence, "unless the court directs that it shall Eun concurrently with the former sentenca. or of any p'irt thereof." In my view 3 these two sections give the courts a somewhat wide discretion 0 On my constructlLn of the two sections, a court has a discretion to order, eitbr that the second sentence should run concurrently with the previous sentence from the date the previous sentence commenced to run, or that the second sentence should run concurrently. witI'i h iexpire3. portion of the former sentence by the date the second sentence is passed0 00 • . -6- In the instant case, ; Inot.. that th rvious sentence commenced to run only. two :aks : °'f ore th sentence in • : the subsequent case was passed0 For all ;racticrxl pUrposes, there- fore, it wüuld be of little off ct to rdur the subscju:nt sentence to run S concurrently with the unoxpir .1 1:ort:cn of the proyious sentence0 •.. .• • . On these grounds', :the . l a:j:inst canviction is •. hereby dismissed, but the sentence shll, if the I:iiol in the • previous case (which is stilipendincj) sh.ul1 fail, run • concurrently with the sentenceS in th ]r.vious case from the date the sentences in the previous cçe;. cmmanced tc run, i0e 0 9th May, 1978... . ,• DODOMA CHIi? T4 •, .5th January, 1979 JUDGE .