19790308 TZHC Dodoma1

IN T HIGH COURT OF TANZANIA AT DODOMA CRININAL APPEAL No. 160 OF 1978 S - (Original Criminal Case No. 320 of 1978 of the District • Oourt of Dodoma at Dodoma) Before E.E. ICazimoto , Esq. Senior Resident Magistrate MOSHI NOHANED . . ., . . . . . . . . APPELLINT versus THE REPUBLIC . .• .. . . . . . . . . RESPONDENT JUDGMENT' JONATHAN, J. In the lower court KILANITI S/O BWMGA and his wife MOSHI D/0 NOHAMED were charged jointly with receiving sto property c/s 311(1) of the Penal Code. The husband was acquittec but his wife was convicted on the charge and given the minimum sentence. Against the conviction she has petitioned this court through Nr. MbCzi who, it may be noted, also represented the couple at the trial. The complainant 's hoise aepears to ve been broken into on the relevant night and a Iaxge sue. of money, upwards of shs, 30,000, stolen. Part of it was in coins of various denominations, and they were wrapped in papers bearing the complainant's name. Suspicion apesars to have centred on two men, one of whom is a brether of the appellant called HUSSEIN and about threC days later the other man was. arrested by the police. The police then looking for the apeellant's brother traced him to her house where her husband was also present. The self—confessed burglar had tipped the police that the money was kept at the appellant's house. Accordingly, Pw.1 the police officer taking charge of the investigations upon getting to the house of the couple told them, to use his on words, that "Hussein Nohamed had brought stolen money to their house." That was denied by both of them, whereupon the house was searched and as the result a sum of shs. 5 1 260 was found in a wardrobe and a further sum of shs.' 5,32/6, both in notes and coins, in a suit case. The coins in the second lot were found wrapped in papers bcarir thccpiniit. complainant's name, precisely as he had told the police. The husband said the first lot was his own saving. Indeed, he appears to have told the police even before the wardrobe was opened that, there lay his money. The arrelJ-ant, rcplying w -, 2 Vl to Pw.1 who had then turned to her, admitted she had received t1 the money from. her brother and said that she had earlier withheld the admission because, as she reportedly put it,. "she was afraid." The appellant testifying in her om defence said her brother Hussein had come to the house and entrusted her 19 with a parcel wrapned in a khaki paper saying he was making a trip to take his radio set from a radio repairer. She had then kept the parcel in her suit case. Hussein had come back later that day but no sooner had he returned the police came and asked if he had brought any money there. She would however not reply, this because she knew and 1 would use her own words "that police would find it if they looked for it." She added that she had got "worried when the police askOd" her.....Hussein, she Said was a business man and she had believed, the money was hi ';rdhd'had entrusted it to her as he had done three tirs previously. The evide I of the husband did not add to. or aubttact from her story of the matter. . I will confine myself only to the case against the appellant. The learned senior resident marietrate in . his judgment afte' fully reviewing the facts had this to say, inter alia: ... The second accused said iiussein used to bring money to her for safe bustody and that when police asked she kQp,t quiet 1eceuse she knew that the police would fid.it . But had she any reason to suspect that that money was stolen? In my consideredview the second accused would have (had.) no reason to suspect. She knows that on three previous occasions Hussein had brought her money for safe custody. She knows that Hussein is a petty businessman. She had no reason to fear telling the police that Hussein had brought her money. In my considered view the conduct of the 2nd accused if believed is consistent with knowledge that the money she received., was stolen or feloniously obtained. I find that the 2nd accused knew or had reason to believe that the money she kept was stolen. Her denial that she did not open the khaki hag can hardly be true,.." He accordingly convicted. her. He appears to have found that the appellant at the time she received the parcel opened it. Such a finding, with respect, seems based on insufficjt evidence, if any. Itwas in her own evidence—in--chief that she said she did not open the bag to check the amount, and there not having been any piosecution evidence to the contrarr, and the prosecution not having cross—examined her on the point. the Court should have accepted her account that she had not checked the contents of that parcel. - 3 - She candidly said, however, she Imew it contained money presumably because she had been told soby Hussein nd/or she had felt it to contain money. Turning to a more crucial aspect of the lower court's judgment, it would Seem to me, having regardto the above extract, that the time at which the court was imputing knowledge to the appellant was when Pw. 1 asked her and she either kept cuiet or denied Husisei had brought any money there. As howeer iightly suhaitted by both the learned counsel at the hearing of this a.;pecl, the time at which the mental state of the ajppellant is rElevant is that of rece±vng the parcel and certainly not that of replying to the police. The ae'ellant was convicted on circumstencial evidence and this court is almost as well placed as was the lower court to re—evaluate the evide]ce and to draw its own inferoncaso. Hussein, adcord.ing to her, was a petty businessman s-nd it may be supposed he was exposed to money in various denominations. She would have had little reason, • therefore, to think that he might have stolen the money, • especially as he had had three previous occasions to entrust her with money. Against such view there is however the • evidence that the appellant when asked by the police either kept quiet or denied to have received any money from Hussein. Now, ought it to be concluded from this alone that she had had the requisite knowledge? One possible inference to be drawn from the false denial was that she had had such knowledge. But the false denial was also capable of other explanation. For, as very fairly canceded by the learned senior state attorney, it might well h.eve only just occurred to her at the time of being asked by the police that Hussein may, after all, have stolen the money and that, to cover him up she should deny he had brought any rionoy there. It is also reasonably possible to go along with the lrned ad.vooatc - and say• that the mere thought end fear on her part that the money might have been stolen was too much for her to be composed in roplyig to the police and that her denial was foolish rather than an indication that she had had the necessary knowledge. All considers-cl, therefore, I am in agreement with both counsel that it ought not necessarily to be conclucd from the evidonce that the aupellant at the relevant time had knowledge or reason to believe that - 4 -. her brother had stolen the thoney said that she should be given the benefit of doubt. Accordingly, the conviction is quashed •nd the sentence set aside. It is ordered she be released from custody. Delivered in court this 8th day of March, 1979, P. M • JON. JUDG: