1978017 TZHC Mbeya

2

IN THE HIGH COURT OP TANZANIA

AT YOEYA

APPELLATE JURISDICTION HIGH COURT CRININAL APPEAL NO. 148 OF 1978 C/P NO.144/789 146/78 & 147/78 (oiuGn'IAL CRIIvaNAL CASE NO, 48 OF 197 8 OF THE DISTRICT COURT OF I'03EYA DISTRICT AT NBEYA) BEFORE: E.P. NTUI ESQ., DISTRICT EAGISTRILTE JACOB S/O Jfl"TU . o . a a a • a a • • a • • a a , • • ......• • • • • • APPELLJUlT (Ori.nal Accused) V e r s u s TUEREPUBLIC . . . . . . . . . . . . . . , . . . . . . . . . . . . ........ .RESPOLSENT (Original Prosecutor) CHARGE: Robbery with violence c/s 285 and 206 of the Penal Code.

JIJDGMUET SAMLTA, J., - Ernest Kapinde is aged about 70. He was horn before the First World War. He is, however, still strong enough to earn his own living. He is a businessman. He owns a shop at Tunciuma. On February 7, 1970, he was at I'iboya. He cane to buy nerchand.ise for his shop. He bought goods worth shs.3,700/=. He must have looked foniard to earIling a fairly substantial profit after selling the goods. Any man placed in his (Ernest Kapinde's) shoes would have entertained the sane idea • It is a normal human behavi our. But thieves would not let Ernest Kapinde alone. They needed his goods to 'earn' their bread and butter. After he had finished the shopping1 Ernest Kaincle took the go to the Mabatini Bus Stand. He was to board a bus there which was to convey him and his goods to Thriduna. He CUd not make the journey. Why? Let Ernest Kapinde himself answer the question: "A bus came and I asked the driver where the bus was going. I met the second accused. He told me that the bus was going to Songie. I got dwn. I waited for the right bus. I sat near my goods. Some of the goods were in a suitcase. I sat on two cartons of soap. The first accused was there, He abbed the suitcase and ran away with it. He was running. I chased him. The second accused, this tall man, picked a stone and tried to hit me with i -b. People who were at the bus stand advised no not to follow

the accused to grab at the suitcase lest I be killed .,," Within a week or ao the four appellants were charged before the district court of Nbeya district with stealing Ernest Kapinde's At the end of the trial all the appeilnts ite'e cdnvictc charged. Each was sentenced to a te'i:i ôfou 1rer5 I iuprisonuertb -- ' I -2- The present consolidated appeals are against that decision. Among the people who were at the bus stand on the material day, that i, February 7, were one .Andembwisye Mwangunguru and Leonard. Nwakrije. Both men knew each appellant well. Erior. to February 7 Anderabwisye used to sue the four men moving in one company. While he was at the bus stand, on February 7, fuidembwisye saw the first appellant, Jacob Jim, running away; he was carrying a suitcase. The other three appellants were also running, following the first appellant closely. At the samotine Andenbwisye heard Ernest ipinde, who was a stranger to hi;:i, shoutini for help. .Andembwisye also saw the second appellant, Asangaiwise s/o Mwakabna, threatening to hit Ernest Kapincle with a stone when the old man attempted to chase the 6,roup. Both Ander.ibwisye and Leonard had seen the four appellants in one company on the material day before the theft had occurred. Leonard saw them conversing near a hotel known as RAHi HOThL, while he was at the stand, Leonard suddenly saw the first appellant holding a suitcase

and running fast. The second appellant was following him (the first appellant) behind. Soon thereafter he heard an 01(1 man appealing for help, shouting, in Swahili: "Nimeibiwa sanduku lanu". Yusufu lVIaluua is a taxivan. lie is based at Mbeya. In February 1978 he used to drive Taxi No.61. On the afternoon of February 7, at about 2.45 p.m., he was driving from Nzovwe going to the town centre. At the Baptist Il 0spital the first appellant stopped him and hired his taxi. The first appellant told the taximan that he (the appellant) and his companions - three in number - wished to Co to the town. The appellant and his companions got into the taxL. The first appellantts companions were tho other appellants. The oup had a lugage wrapped up in a gunny hag Yusufu Maleua dropped the four men at the town uarket Let us now go back to the old man, Ernest Kapinde.. The old man had confidence In the hounds of sticeo After informing the Ward Secretary of the locality about the thefthe went to the police station where he made a report. In the evening he accompanied a policeman and went to the Nabatini area. The team went there to search for the men who had stolen the suitcase. They reached a bar, and there the old man saw the first appellant. He pointed at him and told the polieeman that he (the first appellant) was the man who had snatched his suitcase. In a few, seconds the first appellant

lost his personal liberty. He was apprehended. The appellant promised the policer s . to lead hit.'. to the place where the stolen property was hidden. On the following morning he led the policeman, Ernest Kapinde and other people to a room in Mabatini areawhich during that week was being occupied by the second appellant, The second appellant was not there. The policeman searched the room a- and recovered af ow t ings—including an old torch - which the old man identified as some of his stolen property which was in the suit- case. The old torch had a special mark. On February 13 the policeman who had searched the second appellant's room saw the third appellant, Henry s/c Daniel, near the R.T.C. shop in Mbeya town. As soon as he saw the policeman the appellant took to his heels. The policeman refused to be outwitted. He chased the appellant and caut him. The appellant said that the second appellant was the thief. The second appellant was then standing nearby. Another policeman who happened to be on the scene arrested the second appellant. The fourth appellant surrendered himself at the police station on the following (lay after he had heard that the police wished to see him. In summary that is the evidence which the prosecution laid •before the lower court. All the appellants gave evidence on oath. None of then called a witness. The first appellant's story was as follows. On the

material day, that is, February 7, he went to N'oalizi to buy vegetables, He bouit a bag of vegetables and left Mbalizi for the town at 1.00 p.m. He went to the town bus stand where he net the other appellants. He told them that he was going to the market. A taxicab came, and he hired it. The other appellants asked for a lift, and got into the car. They were all dropped at the town market. At the market he parted ways with the other appellants. The appellant was silent as to what he did between the time he had disembarked from the taxi—cab and 9.00 p.m. when, according to him, his father had sent him to a shop to buy cigarettes. As all the shops were by 9.00 p.m. closed, he wont to a bar to buy the cigarettes. There his personal freedom was broui± to an end. He was arrested by a policeman, on the ound that he had stolen somebody's money. The second ampellant's story. The appellant assited that at about 1.00 p.m. on February 7 he was at a bus stand near the Baptist Hospital. There he saw the third and fourth aupellants coming from the lirection of the hospital. The first appellant hired a taxi, and asked him to rive a hand in loading his luggage into it. He responded positively to the request. Then all the four appellants boarded the taxi and headed for the town centre, At "Uiiindini" he (the second appellant) disembarked, and wont on foot to the police station. He cUd not say

what business he had at the police station, or what else he did on the day. On February 13 he was arrested by the police. The appellant also said: "The things the police seized from my room are the exhibits tendered here in court". Let us now turn to the third appellant's story. This is what the appellant told the lower court. On February 7 he went to a hotel where he net the fourth appellant. fle accompanied the fourth appellant to a hospital. As thc;ro wore .iany pationts waiting for 4 treathent at the hospital, the pair decided to go to the bus stand. There they i:iet the first appellant, who had with hin "a full baa", and the second appellant. The first appellant hired a taxi, and all four of them got into it. At a bus stand near the market the lidhted the taxi—cab. They walked to 5OCOflCL ancL fourth appellants/ror 1 the Government Hospital. Fon the hospital the appellant went to the R.T.C. Office, to collect his money. A few days later he was apprehended by the police. The fourth appellant's yarn was substantially the sane as the third appellant's story. Unlike the other appellants, however, the fcth appellant adnitted that Yusufu Malema was M the driver of the taxi in which we travelled to tom". The learned trial naistrato reviewed the evidenOc at some length. The upshot of the exercise was that he found all the / four appellants to have taken part in the theft of the

suitcase. In the course of his judgnent he said: "There is ample evidence from the complainant PJ.2 that it was the first accused who rabbei his suitcase at the bus stand and ran away with it. While PW.2 tried to chase the first accused the second accused tried to stop fl.2 by casting stones at him. rflajs evidence is corroborated by the evidence of 111.5 and W.6 who were at the bus stand at the tine the theft took place. Erior to the stealing and in other occasions these four accused were seen at bus stand together and on the material date in particular they were together. After the theft the 3rd and 4th accused ran towards the direction where first accused was seen running with the stolen box Second accused actively took part by trying to frustrate PT.2's efforts to apprehend the first accused and recover his property. The theft was co:.nitted at about 2.00 p.mw and just about 45 inutes later the four were asse:ibled near the Baptist hospital bus stoa awaiting for transport. The sack which they carried must have contained their loot. On the totality of the evidence I find it proved that the first accused was seen snatch a suitcase from the complainant. When arrested he 1oa the police to the second accused's room where part of the stolen property was recovered. I find it further proved that the 3rd and 4th accused were accomplices in the crime just as 2n0 and first

accused". The appeal of the first appellant is, plainly a hopeless one. The case agninst hin was cast—iron If, after being made aware of the etidence which was Livcn in this case, there is anyone in the world who could believe that the first appellant's guilt was not demonstrated beyond sane doubt, they must be possessed of a credulity far surpassing ray own The appellant was seen at least by two men9 who knew him vet'y w e ll i running away from the bus stand with a suitcase in his hand. The incident took place in broad day.-light. The old man * Ernest Kapinde - was quite emphatic in his testimony that the first appellant was the man who snatched his suitcase.. As if to confirm the three witnesses' -5-. evidence, the first appellant led a policonan and the old eian to a roou where part of the stolen property was hidden. The app11ants story about vegetables was, in 1:y juclgiiont, a. desperate ateupt on the part of the appellant to avoid being coupelled tocarry the cross of guilt. The story was very thin indeed. Like the learned trial uagistrate, I have no hesitation in rejecting it as a pack of lies. In ny view the first appellant was ri htly convicted. I would disedos his appeal against conviction. In approaching the apoals of the other appellants, I hoar in nind that theft is not a continuing offence. In the instant case the offence of theft was couplete ieeiodiatsly after

the suitcase was reuoved fron where it was lying, the law being that asportation is conpiete once every aton in the article being noveci has left the Place in which that particular aton was before. The evidence in this case showed that the three api.ellants did not physically take part in the renoval of the suitcase fron where it had been lying before. With his accustoneci fairness, Mr. Mwanyika, counsel for the respondent, suhaitted that the evidence in this case did not establish the guilt of the third and fourth appellants conclusively. He argued that, as they had joined the first appellant after the latter had snatched the suitcase ; the two appellants could not rightly have been held to be parties to the theft. As regards the second appellant, the learned Senior State Attorney contended that the conclusion that the appellant had conspired with the first appellant to steal the suitcase was ineluctable. With all respect to the learned Senior State Attorney, i an not able to agree with his subeission that the guilt of the third and fourth appellants was not proved beyond a reasonable doubt. In uy view the possibility that those two aipellants had not conspired with the first and second appellants to steal the suitcase is a ronote one. Why do I say so? That I will tell. The evidence on record clearly shows that the four appellants were friends. Quite often they were seen in

one corapany. Indeed, on February 7, before the theft took place, they were seen in one canpany. Leonard Nwaje saw the four conversing at a hotel. This was before Ernest Kapinde was deprived of his suitcase. Later the four arrived at the bus stand. It is not clear fron the evidence as to how long they stayed at the bus stand but it is a plain as a pikestaff that inuodiately after the first appellant had grabbed the suitcase and started running away with it the other appellants ran closely behind hin. Souc ninutes later they dressed the suitcase with a, hag and headed for the town narket. 1111 these circunstancos lead, in ray judaent, to an ±resistible conclusion that the four appellants had conspired see to steal the old :eanTs property. I/o other reasonable explanation. p -6- If that view is sound, as I believe it is, it follows that, by their conduct, the three appellants had encouraged the first appellant to steal the suitcase. In law, therefore, the three appellants aided and abetted the first appellant in committing the theft. By virtue of s. 22(c) of the Penal Code they are as guilty of the theft as the first appellant.ij.. Like the learned trial magistrate, I an of the settled view that the three appellantst stories were basically false. Mr. Mwanyika thou(ht that the guilt of the third and fourth appellants was not established beyond reasonable doubt. What do lawyers

moan or ought to mean when they talk of proof beyond reasonable doubt? I find the answer to that question in a passago from the jud]ent of DING, J., in Miller v Minister of Pensions /1947/ 2 AIIE.R. 372 at P. 373: ".... That dooe is well settled. It need not reach certain ç but it must carry a high deoe of probability. oof bcyuiid reasonable doubt does not mean proof beyond the shadow of a doubt. Thu law would fail to protect the community if it abittod fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence "of course it is possible, but not in the least probable" the case is proved beyond reasonable doubt, but nothing short of that will suffice." In my considered opinion it is possible but not in the least probable that the third and fourth appellants (not to i.ention the second appellant) had not com e to an aeeent u with tho first appellant to steal the old man's property. Their continued presence at the but stand after that aeeuont had been reached must have encouraged and was intended to encouxae the first appellant to defy many people who were present at the bus stand and steal the old man's property. I would, for the reasons I have given, albeit briefly, dismiss the €løt c.vioticncf the three appellants. I turn now to the appeals

against sentncos. As was pointed out earlier, each appellant received a sentnco of four years' imprisonment. The appellants are first offon:hi's, but they entered the world of crime with frightening courage. They may be anateurs of crime, but the 6ravity of the offence they were convicted of cannot be over-emphasized. Within the letter and spirit of the law of the land the courts must do everything possible to demonstrate the society's firm disapproval of anti-social ventures such as that which the appellants had succesfully embarked upon. The appellants are at liberty to disbelieve it, but what they got in the lower court is what they amply deserved. I would dismiss theappoals against sentences, toot !. B • A. SAM/LTTA - - - - - -- -. f I -7 OlUERg Each of the four appe1s is hereby disisec1 in its entirety. (1 B. A. Si\IILTTA

JUDGE January 17, 197 8 None of the appellants present or repr050nto(1. Mr. Mtaki for the respondent.