19710827 TZCA Dar es Salaam2

/ . HIGH COURT OP TANZANIA AT DAR ES SALAA.M High Court Criminal 4ppeals Nos. 267 - 270 of 1971 Original Criminal Case No. 357 of 1970 of the District Court of Lindi District at Lindi before C. G. Mtenga, Esquire, Resident Magistrate MOHAJVIED A]3DALIAH MALIMUSI MTIIJIBE Or, App • 267 of 1971 ABDEEHENANI ALtI 268 11 1971 ABRAHIM LIJOBA alias TAXET0 C 269 ri 1971 RAIMOND DING OKO C 270 1971 APPELLANTS (Original Accused Nos. 1, 2, 3 and 4 respectively) versus TI iPUBLIC . . , . . . . . . . . . . • . . • . . . . . . . . . . . . . RESPON)ET (Original Prosecutor) Charge. Count 1: Burglary contrary to section 294 (1) of the Penal Code, Cap. 16, Vol. I of the Laws * (Accuseft 1, 2 and 3.) ri 2: Stealing contrary to section 265 of the Penal Co.e, Cp. 16, Vol. I of the Laws. (Accused 1, ? and 3.) 41 3: Receiving stolen property contrary to section 311 (1) of the Penal Code, Cap 16, Vol. I of the Laws. (Accused 4.) JUDG?IENT BIRON J. - The four appellants were convicted, three of them of burglary and stealing and the fourth of receiving, and they were sentenced, the first for forty two months on each of the convictions for burglary and stealing, the second for sixty months on each of these two convictions, and both were awarded thirty two strokes corporal punishment, the sentences of imprisonment in each case to run concurrently, whilst the third was also convicted on the two counts and sentenced to imprisonment for thirty six months on each of the convictions, to run concurrently, and to twenty four strokes corporal punishent, and the fourlh, who was convicted of receiving, was sentenced to imprisonment for twenty four months, and he, like the third appellant, was awarded twenty four strokes corporal punishment. They are now appealing and their appeals are consolidated. In this judent, for the sake of clarity, I am retaining the descriptions of the appellants as well as two other accused who were charged with them, as they were described in the lower court. Three of the appellants, \ I being the first, second and third accused., were charged with burglary and stealing whilst the fourth, who was the fourth accused, was chargea together with two other accused with receiving. Evidence was given by the complainant, an employee of ThNBSCO, who at the material time was on night duty, to the effect that duririg the night of the 9th of July of last year, when he was away at work and apparently nobody at home, his house was broken into and there were stolen therefrom a considerable number and variety of articles including a Phiflipe radio, a wallet containing the receipt for the radio, a clock, his Post Office Savings Book, and a number of items of clothing. Detective Corporal Saidi testified that on the 15th of 1uly he arrested the first, second and third accused, and they all confessed apparently after vigorous interrogationt, to the offence and offered to point out where the stolen property was. They led the corporal to the house of the fourth accused, to whom theysaid they had sold the complainant's radio, and when the fourth accused was taxed with having the radio in his possession he at first denied all knowledge of it but subsequently admitted having bought a radio from the other accused, which radio he produced. The accused then led the withess to the house of the fifth accused, to whom they said they hadsoid a number of clothes, and the fifth accused when questioned agreed and asked his son, the sixth accused, to go and produce the clothes which had been hidden in the bush by this last. Police Constable Thomson testified that when the first accused was brought into the police station he searched him and fmnd in his possession a pouch wherein was a receipt for a Phillips radio made out in the name of the complainant. The evidence of Detective Corporal Saidi was confirmed, though not in its entirety, by Mohamed Masudi, who described himself as the Chairman of the Ujamaa Village. He testified that he accompanied the police to the house of the second accused, who admitted having sold a stolen shirt to one Issa Saidi, and he led them to the house of this man. The said Issa Saidi, when questioned by the police, admitted that he had bought a shirt from the second accused, and showed where he had hidden it. This witness was also present when the police visited the house of the fourth accused, and he also confirmed that the fourth accused at first denied any knowledge of the radio but subsequently produced it. Issa Saidi, who was called by the prosecution, testified that be bought a shirt from the second accused for hs, 9/. At the time of the purchase he bought it in all innocence, but subsequently the second accused came to him and told hint that the police were after the shirt and advised him to hide it, which he did The first four accused elected to give evidence on oath, while the fifth and sixth made urisworn statements. The first three accused denied all 1towledge of the offence and asserted that nothing was found in their possession. The fourth accused stated that he had bought the radio from the first accused, who promised to bring him a receipt for it. He purchased the radio in all innocence, and he had only had it for a day when the øolice arrived, seized it, arrested and charged him. The fifth accused stated that the first accused came to hint and sold hint some clothes, three pairs of long trousers, four overalls, two pieces of khanga., a shirt, and two bed sheets, for She. 50/-. He asserted be had no idea that the clothes had been unlawfully obtained and the reason he asked his son-in-law to hide them in the bush was for their safe keeping, saying that that was the custom in the village, the inhabitants of which apparently did not rely on the security of their houses. The sixth accused merely confirmed that he had been asked by his father-in-law, the fifth accused, to hide the clothes in the bush, which he did. The magistrate accepted the explanation given by the fifth accused and as noted acquitted him and his son-in-law, the sixth accused, None of the accused wished to call any witnesses, and at the close of the defence case the court, as it was empowered to do under section 151 of the Criminal Procedure Code, called two wi'iesses, both of them police officers The first, Detective Corporal Wandelini, testifiedthat he was together with Detective Corporal Saidi when he arrested the first three accused, and he stated that the second accused advised his co-accused to show the police where they had disposed of the stolen clothes, the first accused acquiesced, and he and the second accusedthèn took them to the house of the fifth accused, who admitted to them that he had bought some clothes from the accused, though apparently only from the first and secon4ccused. The other wiiess called by the court was a Corporal Saidi, who stated that he was together with Detective Corporal Wandelini when they arrested the first three accused, and he likewise said that it was the first and second accused who agreed to show them where they had sold the stolen clothes, and they led them to the house of the fifth accused. The learned magistrate very properly directed himself that cfessions to police officers were not admissible, as laid, down in section 27 of the Lvidence Act, but, applying section 31 of the Evidence Act, which reads:- . "31. When any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a police officer, so much of such infomation, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, is relevant.", he held that the evidence as to the accused leading the police to where the stolen property was found was admissible, together with the accompanying statements including the confessions. Although I agree with the learned magistrate that the facts discovered as a result of the statements made by the accused on their arrest were admissible, lam not persuaded that that would let in the confessions as well, as only that part of the statement directly relating to the facts discovered as a result of the statement is admissible. That, I think, is laid down in the Privy Council case of R . V,ju'an . , Ramae5 (1965) A.C. 1, based on corresponding provisions in the Evidence Ordinance of Ceylon. it is now necessary to examine the evidence against each of the appellants individually. As againstthe first accused, there is the evidence of Police Constable Thomson that he found on hm when 4, 40 searched a pouch which contained the receipt for the Phillips radio made out in the name of the complainant; there is the evidence of Detective Corporal Saidi that he together with the others led them to the house of the fourth accused where the stolen radio was found; there is also the evidence of Detective Corporal Wandelini and. Corporal Saidi, who were called by the court, that the first accused together with, the second accused led, them to the house of the fifth accused, from whom the stolen clothes were discovered; and there is also the evidence of the fourth accused, who stated that he bought the radio found in his possession from the first accused. The evidence against the first accused is therefore overwhelming and the case against him cast-iron. With regard to the second accused, there is first of all the evidence of Detective Corporal Saidi, who, as noted, incriminated all the accused, and he stated that the second accused was one of those who led him to the house of Issaidi, to whom he hasold the stolen shirt, which was confirmed by iss.a Saidi in his evidence, and such evidence was also confirmed by the Chairman of the Ujamaa Village, Mohued Iasudi The evidence against the second accused is therefore, although not as strong as that against the first accused, sufficient to support and justify the conviction With regard to the third , the only evidence against him is that of Detective Corporal Saidi, who, as remarked, had incriminated all six accused, and he stated in his evidence - and 1 quote verbatim - "The first three accused then told us. that they sold $tolen properties to the fifth accused Abdaliab. Junani an4Lave a stolen radio to the fourth accused". Then, after the stolen clothes had been produced from the fifth and sixth accused, he went on to say, "First, second and third accused in one voice (sic) then told me that these were the clothes they sold to the fifth accused for She. 50/-." As noted, the fourth accused himself stated that he had bought the radio from the firat accused only, whilst the fifth accused said he had bought the clothes from the second accused, though there were other witnesses who said that the first accused was also involved in this sale. The evidence of Detective Corporal Saidi in so far aèthe third accused is concerned is not supported by that of any other witness, and it seems a little strange that all three accused should speak with one voice. In the circumstances I am not persuaded that it would be safe to rely on this rather comprehensive and wholesale evidence of Detec-tive Corporal Saidi, as it is not, in so far as the third accused is concerned, supported by any other witness including the police officers called by the court who were with him at the material te. • The appeal of the third accused .lthrahim Lijoba alias I Nakweto is accordingly allowed, the conviction against him is quashed o and the sentence ±m,poed thereor, is set aside. With regard to the fourth accused, as the learned magistrate directed himself, in view, of the fact that when first questioned by the police he denied all b.owledge of any radio in his possession and only produced it after persistent interrogation, that would show guilty knowledge on his part. His conviction is accordingly supported and justified by the evidence, and no court would be justified in interfering with it, 4' • With regard to the sentences imoed as all the • convicted ccused except the fourth had previous relevant convie.t±ons, particularly the second accused who admitted to eight previous 'convictions, the sentences of imprisonmentimposed, althotgh in thase of the second accused very severe, were merited and justified. Even so, asremarked by the leariied Chi.f Justice who admitted the apeals to bearing, the award of thirty two strokes corporal punishment in the case of the first and second accused is excessive, and in each case it is accordingly zeduced to the statutory prescribed minimum, that is, twenty four strokes. To the extent indicated, that the appeal of the third accused is allowed and the award of corporal punishment on the first and second accused is reduced to twenty four strokes, these appeals are allowed And the sentences on the first and 'second accused, which require confirmation by this Court, are hereby confirmed. Delivered in Court at Dar es Salaam this 27th dày of August 1971 (Sgd.) PHILIP BIRON. JUDGL