19790516 TZHC Tanga2

Sr~ .4 IN THE HIGH COURT OF TANZANIA "--- - •' J. - AT TA1A' ' (Ditrict RegistryY '... • APPELLATE JURISDICTION '. TDR CRIMINAL APPEAL ND. 13 OF 1979 (original Criminal Case No. 195 of 1978 of the District Court of Handeni District at Handeni) - -3.BJFO-RE . M.H. BKARI, Esq., •. District Magistrate IDI RAMADHANI : : :' : APPELLANT (Original Accused) versus. THE REPUBLIC. : : : : : : : : : : : : : RESPONDENT • . : (Original prosecutor) CHARGES: Burglary and stealing contrary to sections 294(1) and 265 • of the Penal Code, .respectively. J U D G M E N T NYALALI, C.J. This criminal appeal originates, in the District -: Court of Handeni District where the ap.peUant Idi Ramadhani was charged .th another person, namely, Juma Waziri, with.the offence of b'urg1'ry - contrary to section. 94(1.) of. the penal Code in the fi,rs,t count and stealing contrary to section 265 of the same Code on the second count0 - The said ruma Waziri', who appeared. at th,e trial as the first accused, was acquitted.., but the appellant,, who appeared: at the trial as the 's'èëond accused, was convicted as charged and sentenced to three years' imprisonment on the first'ount,- and twelve months'imprisonment on th second count0 The sentences were directed to, run concurrently 0 The appellant was agrieved , by the convictions and sentences and hence this appeal' to, this Court.. In his memorandum of appeal he elected not'to appear or be represented at the hearing of his.eppeal. The Republic, however, was represented by Mr. Sekule, '1:earned Principal State Attorney. I have carefully, examined the evidence adduced at the trial in the District Court,' the judgment -of. .the,tri.al cqurt, the memorandum of appeal submitted' JDy ':the" appe'l:l'ant to ' :thi, court and the oral submIssions made by the learned principal State Attorney, and 4t seems there is nodispute between the part'ies.th.at.d.uring the night. of. the 24th/25th September, 1,977, the dwelling house of P.W.1.and PO,WO.2 (who were residing. in the same use) was .broken"into nd'various 'household and personal articles '7 including :'.cl'othes werc ,tolen-:theref'rom. Oñ.the .5th November, 1977, the wife of the first eccused together with the daughter of the first accused were found' ; by P.W,2, POWO3 sand. P.W,8 ( ,poliéman) wearing . Exhibit "A" consisting of two pink coloured gowns, Exhibit - consisting of a Zebra coloured gown and Exhibit "E"- which consists o f a skirt. On the same day, the first accued was found with Exhibit "C" which is avest. Later the same day .a search was made at the home of the first accused, with the result that Exhibit. "D". consisting of sun goggles - was found. Furthermore, there is no dispute that P.W.2 and P.W,3'claimed the properties in question as being part of those stolen from their dwelling house. Furthermore, there: is no dispute that the following day of the 6th November, '1977, Exhibit "G"- consisting of a white cap and Exhibit "H" - consisting of a beaded pouch was found by P,W,3, P,W.7 a'nd P,W.9 (another - policeman), in. therbox: of p,W.5 who is the wife of the second accused. This finding took place in the presence of POWO6, who is the mother of P.W,5 and mother-in-law of the second, accused who 10, -the appellant in the present appeal, P,W.l, P,W.2 and P.W.3 claimed the white cap and the beaded pouch that'.they were among the properties stolen from their dwelling.tiouse. .' , ' • Again, there is no dispute 'that the second accused, who is the appellant in this case, was subsequently apprehended on informaticn given to the police by the first accused and his wife0 -2- With regard to matters which are in dispute in this case, it is the prosecution case as laid out at the. trial in thC.IJistrict Court in respect of the second accused, who is the present appellant, that he was involved either singly or together with other persons in the burglary and theft dur ing the night of the 24th/25th September, 1977 On the other hand, the defence case of the present appellant consisted in a general denial of the prosecution case, and an assertion that he had bought Exhibits !G" and "H" from the 7 first accued who was acquitted0 The ffrst point for consideration and decison is whether Exhibits "G" and "H" were found in th possession of the aopdlant on the 6th November, 1977 The evidence acducecl byP0W03, P0W07 and POWO9, supported by the evidence of P0W05 'and POWO6, was to the effect that Exhibits "G" and "H" were.found .:in. a ibbx of the appellant's wi.fe (P0W05)0 According to the record of the trial court P0W05, who is the wife of the appellant, gave evidence for the prosecution together. with the wife of the first accused who was acquitted0 Before the wives of the accused persons were called to give evidence, herosecution is recorded to have informed the court as follows:- .. . . "The witnesses to follow are wives of the accused persons 0 I request the court to ask the accused persons if they agree that their wives should give 'e\ridence" 0 . Subsequently, the record of, the. court reads, as follows:- . "Court: Uder section 130 ofthe Evidenc,e Act, 1967, 'a wife is a compt'ont witness but .not a cospellable witness unless the husband has given te assent for his wif.e to give evidence for the. proaqution 0 The aCcused persons. in case havp been addressed .in terms of section. 130 of the Evidence Act, 197 " The record shows that the first accused, who was acquitted, and the second accused, tl'l'is the pe'er)t'appel.lant, agreed that their wivçS could give evidence for the prosecution As cor:ecly pointed out by learned principal Sta'te'AttornBythe leained trial District"Maistrate misdirected himself in the application.of the p.'rovisions of section'.130 of the Law of Evidence Act, 1967, since, that seion requi.e the court to inform the wifeor husband who is pr.oposed to be called ase witndss for the prosecution about his or her rights to agree or refuseto give evidende for'the proectkion, in cases where her or'his.-mrital partner is charged with an offence,..unl.ess the offence is of. the type provided for under' section 130'(i)(a) and,(b) of the Act0. Only in such exceptional 'cases is aw-f'e or hisband.compellable to g.ve evidence for the prosecution0 In all other,cases,.,there is no' such compulsion0 The position is clearly stated under section 130(1) and (2) Of the Act which provides as fo11ows:- "130 - (1) Where a person is chargcd with an offence is the husband or the wife of another person, suchlast named person, shall be competent but ot a compellable witness On behalf. of the prosecution: Provided that the wife or husband shall be a competent and compellable witness for the prosecution in the following. cases only:- in any case where the person c.hrged is charged 1 With': an offence under Chapter. XV of the'Penal Code or against section 164 of the Penal Code, in any case where te persoi charged is chargedin respect of an act or omission affecting the prsoñ or property Qf.tbe wife or husb.afld of such pe'sôñ or the children or either of them0 000/s -3- " (2) Where a person whom the court has reason to believe is the husband or wife of a person charged with an offence is called as a witness for the prosecution, the court shall, except inthe cases specified in the proviso to subsection (1)' ensure that such person is before giving evidence made aware of the provisions of sub-ection (1) and the evidence of such person shall not be admissible unless the court has recorded in the proceedings that this subsection has'been éomplied with0"0 It is apparent in the present case that the lower court failed to inform the wives'ofth accused of thdr rights to agree or refuse to give evidence for the"prosecutiori0 The trial court only asked the accused persons to permit their wives to give evidence0 An accused person is not empowered to permit his wife or hÜband to dive evidence for the prosecution under the provisions of section 130 of the Act0 it i the witness himself or herself who should be given the opportunity to agree or refuse 'to give evidende f or the prosecution0 Since the.'provi.sions of section 130 of the Evidende Act clearly state that the evidence of a' 'marital 'partner or spouse is not, admissible unless the record of the court 'shows cdmpliance with the relevant legal -'rovision, except in cases specifically provided for thereunder, it ust follow that the 6Vidence given in the lower court by the wives of the accused persons is' not admissible and must be ignored ,in th . e:,, ccnsidertion of the merit's of this cased It must fdlloW, thereQr,e, that in deternu.ning the fact stated earlier on in this judgment, the testimony of the wife 'of thd' 'second' accused, who is th present appellant, must be ignored0 This' leaves for the prosecution the evidence bf'P0W'03, PCWO6, P0'W07 and POWO9 Which' is td'theeffect th,at Exhibits "G" and "H" were found in the box of the appellant's wife0 The question remains whether Exhibits "G" and "H" which were found in the box of the appe1'l.at's wife were under the' appellant's possssIon0 POWO9, a police officer, testified to the èffec that the appellant admitted the ownership of Exhibit 'G" at the police station, but denied ownership of Exhibit "H"0 The appellant, in his defence in the District Court, actually admitted ownership of'both Exhibits "G" and "H"0 ' The exp:esion 'Possession"s defined'utider thepenalCode as fôllóws:- Ilmpossession. (a) "be ir'i possession 'of' or 'have in ossesion' includes not only having in one's own personal possession, but also knowingly having anything in the actual possession or :custody.of any other person, or having anything' in any place' (whether belonging to, or odcupied by oneself or 'not) for the use or benefit of oneself or of any other person; (b) if there are two or more persons and any one or more' of them With' the knowledge and consent of the rest has orhave:anything in his or their ôustody or possessin, it shall be deemed and taken to be in the custody and possession of each , and all of them;"0 According to the evidence of appellant's mother-in-law, that is P0W06, the appellant's wife lived with P0W06 but the 'appellant used to visit her from time to time s Taking into accdunt his own admisioP about I"4s. ownership of Exhibits "G" and "H", I am led to the conclusion 'that the appellant must have known that Exhibits "G" and "H"werë with,,his wife,, in whose box the articles were found0 On the evidence adduced in the District Court, I therefore find as a fact that Exhibits "G" and "H" were under the appellant's possession at the 'time they were found in'the box of the appellant's wife on the 6th November, 1977 The next point for consideration and dec±sion'in this 'case, 'is whether Exhibits "G" and "H". were sufficiently identified as being part of the properties stolen from the dwelling house of P0W01, POWO2 and P0W03 during the night of 24th/25th September, 1977 /4 -4- powol, PW02 and P3 testified to the effect that the whitecap had a tear.at the bottom edge, andthe beaded pouch also had a tear, which P0W01.had sewn UPO:' This evidence, in'my considered opinion, sufficiently.estabiishes beyond reasonable doubt tIat.. ExI4bits 'G"arid "H" were among the propertips Stolen from the dwe11•ing.hoe . of. 1• p W.2 and PW 3 during the night in question0 The next point for consideration nd decision is whether the appellant is the person who bÜrgld the dwelling house in question and • • stole the properties therefrom0 Of course no on saw the actual burg1er and thief. The prosecution depends entirely on the appellant being found in possession of Exhibits "G' and "E" But the period which elapsed from the burglary and theft and the finding of Exhibit "G 1 is about a month ' and twelve days0 Taking into consideration the fac.that.oly Exhibits : "G" and "H" were found in the possession of the appellant when so many articles were stolen from the hous in question, and taking into account of the nature of Exhts "G" and 'H, " I m of, the considered opinion that the appellant is/the actual burler and thief The appellant testified in his defence to the effect that he had purchased the white cap, that is, Exhibit "G" along the 12th Street of Tanga Municipality in the 'presence of one Hassani AlL (D.W.1) some time in January 1977. The appel1an€ called the said i-{assani All to support him. The witness, however, happened to be aconvict t the time he was giving evidence in court on the 8th June, 1978, and had been a convict since November 1977. But prior to his conv.ction he had been in remand prison from October 1977 and was together with the appeflant in remand prison for eight months. Under these circumstances, the evidence of D.W.1 has very lit1e weight. Firstly, because he is a convict and secondly, he had been.iih.tFie ap'pellnt in remand p.rison for so long. However, the appe lant s not requirea in law to establish his case beyond reasonable doubt. With regard to Exhibit "H", that is the beaded pouch, the appellant testified in his defence that he had purchaseci1 it at a Livestock Market in the presence of, an old an called Ramadhani The ppollant did not call the said Ramadhani to give evidence in court on the ground that the old man had become mentally disturbed,',! One onders how the appellant, who was in remand prison, knew that the, old man had then be'comenenal1y disturbed! These doubts affect the weight of the appellant's evidence. However, as I have already stated, the appellant is not required in law to prove his case beyond reasonable doubta In my considered opinion, the evidence adduced by the appellant though unsatisfactory in many ways is, nevertheless, sufficient to establish the probability that the appellant could have got possesion of Exhibits "G" and "H" innocently. He cannot, therefore, be convictt1 of the offence ch arged or in the alternative of receinng stolen propery - contrary to section 311(1) of the Penal Code. in the last analysis, therefore, this appeal succeeds by quashing the convictions, setting aside the sentences and directing that the appellant be released from jail forthwith unless detained therein for, somekother lawful cause'. . , ......... F. L. NYALALI ) CHIEF JUSTICE'. ' Delivered in Court at Tanga this 16th day of May, 1979, in the presence of ,Mr;o,,Sekule., learned Principal State Attorney.for ,th.Republlc and in the absence of the appellant duly notified L. NYALALI F.I . CHIEF JUSTICE