19760522 TZHC Arusha

IN THE HIGH COURT OF, TJzINIL ATLRtJSHA (IN TIE DISTRICI REGI TRY OF TLNGL) IT TANGA APPEAL Q 1975 L (rRo1 THE DECISION OF TilE DiSTHCT COURT OF TAURA AT TANG-A IN ORI].IINAL CASE NO. 362 OF 1975) MOHM1ED AiJA SALUM (Original Accused) versus rncrp DYr-cr1-D -rTr1 JJ.IAj .LL..rL)J_)LJ..L' . a a • • . • • a • a a a a a • a . • a • . • • ORES (Original Prosecutor) JUDGMEIIT JOITATHAN,J . .. . ., The a1Dellant was convicted of burglary and steal±ng, c/es. 294(1) and 265 of the Pena Code. :. He was given the rninJnum sontence. ... The.aáte are Iarely undisputed. A firm called : Steel Rolling Mills Limited, owns several residential houses in Tanga Township. Keys to one of these houses appear to have got lost so a watchaan was posted thereto guard the house. The apel]ant an employee of that firm was in due course sent there br one Mustafa Jw. (p.vi.l) -to hav other locks fitted. Hdwever, ho soon reported to Mu,stafa that the rear door had ben broken and that one sofa set was missing exccpt,..-ho.w.over, thai one of the pillows had been left outside. Mfa went there and cOfirmod that had happened. Thcic no clue i editelas to iho the ... culp±it was. NeI.j one month later,ihowovor, the house of the appellant wassoarchod by the Police. in.the presence of the appellant hije1f, his ten-house cell leader and Mustafa. :There, a dark goen. sofa set was foimd, but one pillow was missing. The pillow tht had been picked outside the 'urglod house resembled the pillows found intact on the coahes and fitted neatly into the athpty space obtaining on one Of the coaches. The appellant when asked said he had.•'\ bought that set from DOshi FIardwre Shop. It was seized and he arrested. .Subsequontly, the appellant made a ttemcnt to the Police. Its voluntariness is not disputed. In that statement he said to the effect that P.W.1 had givon that sot to him to use temporarily until such time as it was rocjuired. back. Explaining his failure to say so at the outset he said he. had not wanted to make things difficUlt at hi house. At the close of the prosocuton case the appellant appears to have been told what his rights as to defence were. In the event he opted to say nothing, this presumably on the advice of I;'. Singh his advocate whom I have also had the advantage of hc.ering in this appeal. - It was . . . ... . . . . ... . . 72 -2- It was his sUbJnisiOi1 in bhe lo'!or cour -t., as it has boon baforo no, ih: thQ prosecutionhaving failod to adduce ovidonco to refute. . ho statciicnt of the appellant that he had Lot th sofa. so on 1aii from IJusafa, the prosecution could not be naid to.Iaave proved their case. In suppoof this he citedtWodociions of this court to the effect :hat, whore an accusd person has intimated his defence to the Police in th course of their invostigations the lctQr should invetigatoifiorder tobon±irn or rëfu'what-t•&-.. accis,d is claiming to have happened. The learned district rnagistrato in his judgment considered, however, that the two authorities rem n olvani to hc presen facts. I am. imablo to see hy ho tnough so. The lcornoa state attorney in agreement iith the magistrate does not think there was need torove. the falsity of the statement of the appel]nt inasmuch as ho maci earlier on said he had himol± bought the sofa set. 1-10 over, as I roLuinded the locrncd ststo attorney, the apelThnt has att aptod in his statomcn to show wray ho had von a different ocry. Thc. prosecution in my view should then have invostigatedto exclude hc possibility that the appclJant aay have been telling the Lhe truth whoa he SaidLhd.d taken the furniture oxi oàn from usta La, especially so a such investigetion would really -' have entailed vorr.littlo. I would respobtfully agree with. Mr. Singh, tnorof ore, that tho loomed trial magistrate should not so: lightly have glosses ov± the deci-.ed cases that weo referred o hLJ, with 'n±ch decisions I wholly agree. Mr. Tiwipopo for Lh. ii.cpublic has hLn sugestod thot, in order - to scfguard the interests of jutice, this court nigh ite 11 recall ustf io docdc the issue whether ie hd given the furniture to th appellant. I do not hovover bhink- th ould b necessary. I hove cloeJy scrutinisea the evdonoe of Mustafa who clearly w's the hub of Lhc pro caution ccsc. He was cloa th the ep)cflenc reported to niui at tno relevant house had. bCen broken into end. s sot of coachoe stolen. lie saw that for hivaslf liavin ..aoppeiecl. Hoacn reported to the po1ice. They then sea to h2vc aLod him if there was , dny one -hb suspected. He answered in the negative. Lator, upon a soorh of the puo11ent 1 s 1iouc b±n irdo Lhhovit.Yicss said th3y found - the sofa sot that had. b c o nsoln from the relevant house. t is true the prosecutor at no stage asked him .pciii cal]y i± he had iven thot set to the applla!1b. IG iiae dosirobi bh he ohouJd have been Lthat. askodL The impression I have is that this.vias not a delibarato omission; it was h oversight. The prosecwbr t th s -b -- go oit-hcr may not nevc decided to put in the appollantis stateaen (it was put mat the very end), or may have lost sight of it. Having, however, set out the important parts 01 his ovinenco as aievc I must ask myself: is it conceivable that Mutafa had. ho boon asked the specific ' ue stion could have said he had given the sofa sot to the accusCd? Without the slie.11tcst hesitation I-would say no. The wh9lo......,...../3 -3- The whole tone and tnor of his evidence cannot possibly be reconciled with a suyesiion that he had himself iven. the furnituo to the appellant. He was saying in effect that a sofa set had 'coon stolen from that house and that it was later found in the appellant's house. In bhat case he was necessarily sa;ing he had not ivon away those things. The defence did not itself ask the specific question, this presumably because they know what the answer would be. They may not have had the obligation of asking it but, as I have said, the whole thrust of Mustafa's evidence as regards this vexed point was clearly that he had had no hand in the disappearance of the sofa set; he is saying it was stolen by a man he did not know until it was found in the appellant's possession. All indications are then that he could not possibly have given the set to the api5ellant. Relations between thorn appear to have been good# Thy then should Mustafa have given it to him on loan and then fake up a burglary? If the appellant was given the set he should have so said at the outset. I find little attraction in his explanation that he was trying to get out of difficulty at his house. The best way of getting out of difficulty would have been to say he had received those things from Mustafa if in fact that had been the case. As for identification Mustafa said that was the set stolen from tho relevant house • Consistent with such evidence the pillow found outside that house was of the same size as, and had a cover similar to, that found missing from the sofa set found at the appellant's house. On the evidence as a whole I am satisfied the case had been proved against the appellant so as to entitle the trial court to call upon him to defend himself. He decided to say nothing..and, as righiy noted by the trial magistrate, the effect of that was to buttress the prosecution case. It was however not shown that the breaking occurred during the night. Accordingly, the conviction, should have been. that of houso-broaking and not burglary. In the result, save that there is substituted a conviction of house-breaking, the appeal is dismissed in its entirety., / (p • M .- JONATHLN) JUDcT. Delivered, this 22nd day of May, 1976. (p • M. JONATFIAN) PMJ/MTPi'.I. JUDGE.