19710709 TZCA Dar es Salaam

IN THE HIGH COURT OF TANZANIA AT PAR Es SALAAM Criminal Appeal No. 99 of 1971 Original Criminal Case No. 253 of 1970 of the District Court of IringaDistriot at Irina before: B. P. Chipeta, Esq., Resident Magistrate JOHNSALMSELEMANI$ANGA .............................ArPELLAIqT versus THE REPUBLIC . .. ..•... .. .. .. • • • • ... ...... .. • .•• a . .• C.ERGE: Escaping from lawful custody c/s 116 of the Penal Code. JUDGMENT • BIRON J. - The appellant was convicted of escapIng from lawful custody and he was sentenced to imprisonment for six months. He is now appealing. Evidence was given by a polIce constable John, to the effect that on the 21st of April of last year be was acting as court orderly and took about nine remand prisoners to the Town Council building where the district court was holding sessions. The constable testi- fied that whilst he was taking one of the remand prisoners to the toilet, the appellant took advantage of the opportunity and walked out of the building and escaped. Some time later he found him and apprehended him, and the appellant pointed out where he had hidden the handcuffs with which he had been handcuffed and these were seen to have been out. The constable's evidence was supported by an tndependent witness who stated that he was also a remand prisoner on the day in question and he amplified the constable's evidence by stating that the appellant had been handcuffed to the man whom the constable took to the toilet and when the appellant was left alone unguarded, he just walked out of the building still wearing the handcuffs. The appellant elected to give evIdence on oath and stated that on the day in question his case was adjourned and he asked for bail. As the magistrate was speaking in English he could not under- stand what he said and he consulted the court orderly, who told him that he had been remanded on bail and he accordingly left the building. He denied that he was handcuffed or had subsequently pointed out to the constable where be had discarded the handcuffs. The appellant called four witnesses who all confirmed the appellant's evidence that he was in fact remanded on bail, and. at least two of them stated that the appellant was not handcuffed. One went even further and said that none of the remand prisoners were handcuffed. The magistrate in his judgment, accepted the evidence of the police constable, supported as it was by an independent witness and rejected the evidence of the appellant and his witnesses, describing their evidence as, and I quote: "a typical example of 'taughtt witnesses who rehearsed a false story. All these witnesses of the accused, I am satisfied, were lying." .. .. ... 62 2, no accordingly convicted, the appellant as charged.. It is extremely pertinent to note that when the trIal of the appellant oommenced before a different magistrate, it is recorded that the prosecutor stated; "This case was fixed for hearing to-day but 'for the prosecution ease it had to have Cr. Case No, 85/70 to prove that the aecused was in lawful custody on the day in question, But the said criminal case would not be traced today. All the witnesses are local so I would request for another bearing date." The proaeoutor's request was granted and the hearIng was adjourned. There then followed several adjournments until the case was heard and determined when, as noted, the appellant was convicted as charged and sentenced. I had the criminal case referred to, that is Criminal Case No. 85 of 1970 called for and it discloses that the appellant was originally charged on to 16th of March, 19709 with housebreaking and stealing, and the hearing was adjourned to the 23rd of March 19701 on which date the hearing was again, adjourned to the 31st of the same month when there followed another adjournment to the .10th of April, when it was again adjourned to the 21t of April. Even on that day it was not. hoard but adjourned to the 5th of May. This last adjourn- ment, on the '21st of April, was the day when the appellant appeared and is alleged to have escaped from lawful cuetod y . It is extremely noteworthy that In all the adjournments preceding that of the 21st of April 1970, it is expressly recorded in the proceedings that the accused in that ease, who is the appellant In this ease, was remanded in custody, but at his appeamn000n the 2t o f April when the hearing was adjourned to the 5th of May, them is no record in the proceedings that he was remanded in custody. Nor for that matter is there any indication as to how he was mrand.ed. For the sake of record it should be noted that in that particular ease wherein the appellant was charged with housebreaking and stealing, the court found no case for him to answer and he was duly acquitted. To revert to this instant appeal, even if the prosecution evidence is accepted in its entirety and the defence evidence that the appellant was remanded on bail 'is rejected in its entirety, the prosecution caSe does not establish that the appellant was in lawful custody when he walked out of the building, and according to the prosecution, escaped. In the circumstances, the conviction cannot be sustained, The appeal is accordingly allowed, the conviction is quashed and the sentence imposed thereon is set aside. If the appellant Is not otherwise lawfully detained in custody, be Is to he released forthwith. Delivered in Court at Dar es Saiaam this 9th day of J'uly, 197 1 .. (pnmip Bn1CN) 3VDG