19790514 TZHC Arusha

- IN THE HIGH COURT OF TANCANIA AT ARUSfA APPE:-ATE JURISiJ.I:it'IGN :iI3H COURT CRIHINAL APPEAL NO. 162 O 1978 • ORIGINAL CRININIJJ CASE NO. 175 OF 1978 4- OF THE DISTRICT COURT OF ARUSHA AT ARUSHA • Bf ore J.M. ltemba, Esq., R.M. Resident Maqitrate • RODRIC MANDAP4 AND ANOTHER ----------- APPELLANT • (Original Accused) versus THE REPUBLIC ------------------ -- RESPONDENT (Origi.zal Pecutor) JU'bGEMENT - MNZAVAS J. -: The two appellants, Rodrick Mandara, and chambuso 14guinba 1 (to whbm- I will hereinafter be referring to as the 1st and-the 2nd appellant réséctively) were charged with and convicted f burglary and stealing c/ss 294(1) and 265 of the Penal code and each sentehc-:d to 3 years imprisonment for the offence of burglary and 3 yeks imprisonment for -the charge of theft. The sentences were made to run cohcurrently. They are appealing againstthe'onv±ctions and the sentence imposed. Mr. hatane who appeared for the first appellant 1 fladara, yigorously ercu -d that the only evidence that tended to implicate the. first, appellant wa that of Llawa d/ó Raxadhar4, PW i),. Hwe it was argued th' 4_- /w3.s en accomplice as she was initially joiri harged with the D'clants but later the prosecution decided t drop he.charges rist her and produced her as a wibtessifi supPV gf th- ci gainst ooth appellants. The learned '- el / I argUed that Hewa's .idence needed dorroboration before beingi ted / upon to the det'rine of'the 1st appeliant £jjpport of this argbment the court was referred to the dsi4fl : at this eourt ift ANANISYE MWANDIGA - and Three -Others .V R (197) L et! Was also submitted by the learned ctinsel that the ft •appe1ia's defehce ofal1bi was noteffectively rebutted byt1te:• ecUtin and that since the pesecution had the duty to pave V e •hatge against hin beyond rea.crable doubt the first appell had duty to prove tht his defence of alibi was true, ..sJ2 - 2 - In support of this reum€:r the cou:i w:s referred to the decision in FhANSHAN :!3..: (176) It - was submitted that the 1 ou t d r c axv - r toi of the law regadinu accornoli.:c evidende H.:- d ch t there wes a misdirection regarding ti-in :.uJen of roof in cr:eainal cse It was on these argumen ±hrt the lenreed counsel asked this court to quash th convictions eg:inst the first appellant and •der his release from custody. The second appellant, Chambuso Mgumba, appeared in person. He argued that he was in no way connected with the off ences of burglary and stealing as he was away in Babati when the offencea were comxntted. He said that Hawa, (PW 3), told lies against him in order to exculpate herself as she was also nithUy h4ge4 with the offences. Mr. Mwale learned state attorney, argued in support of the convictions. Dealing with the convictions against the firstppellant Mr. Mwale argued that the 14Ve court found Hawa (Pw 3), to be a /waq sub.. credible witness as she was consistent and firm in hr evidence. ItL Resident Magitr - te having found Hawa to be a credible withess when thaff lend she said that she saw both apellants in the vicinity of the scene of crime on the mat rial avcnlnç th defence of alibi by the first accused had to cruubln As for the second appeilatt the Republic argued that the stolen property was found in his house and identified as the same broken reperty stolen from the hôUe aft-r it had been/into. The Coiurt 4ss invicd to dismiss both appeals0 / The followin facts which are not at all in dispute prcce th 7 arraignment md conviction of the appe1lants On the ni ht of 18.2.78 the dwelling house of one, Estare rea / 7 /............ /situatnd along Bukoba raad in Ngarenero, within the . toship Ausha was burgled and her property stolen. On information reved the police armd with a seech warrant, combed secondappellant's Qusei In the house many of the items stolen from Ester's house / were founth Ester amply identified the things as among her / p,eperty stolen after hhouse had been brqJçiritO. • / . •. d it the time of the incident the second appellant (1.st accused in the lwer court) was livino with HaWC, (pw3), in concubinage. / first appellnnt (2nd accused in the lower court,.Was • 1111a in the same / house as Ester- Mr. .ema. ,(PW,.).• - Eechof thorn having separate rOQ.. / . .:. •. - .7 . . . . . . The evidence ccnn:ctirc Chi'buso, th• scond appellant, with the offence is tht ti'i stoln prop.rty w - s found in his room - only'a day aftr it. hes b.n stolen romth:' burgled bousa, ,Nia defence tht the prop. ';Lty hed 'b. ri plHntd 6r'him JL IJ order to cnuse him his undoiro wes looked tote by the learned Resident Mgistrwh pp r otljisis, it s bogus and an after- thought. Sacqnid ippcllant's' r riit in thc'lowcr court as well as in th is court th t HWa told li ginst h m in order to exculpate herself has some force hut, it. is urtainly not cnving bearing in mind the fi.ct that, the property ws ifcct found in js.. house. The presence of the tolen prOperty in second appellania WV appears to have corrbbor'td ew - s tLst.mony th'it it was th e appellant who brought the same into the roomi With respect to the learned state attorney 1 t.nd to agxee with the lean€d Resident' Magistrate's finding that tIrc was amp'e evidehce in support of the charges against the second appell.an to The ite*beam of 3 years imprisonment in rspact of the &fence burg1ry is the mandatory minimum under the M.S.A 1972. And a s sentehce was made to run concurrently with th't of. 3 y.ars impr ment for the bffence of.stealin, this Court has no power to interer , His appeal is accordingly d1smisedi its sntirot' Coming to the first appellant, Rodrick Mandar h:±s conviction wa 0 as rightly argued by th,e learned defence coun l.el and Conceded by Republic1 wholly based on thci evidence of H0wa1 (PW), - As Z have already me&coned abOve it ws atgued by the defence that Hawa was an accdmp ca Whose evideée needed corroboran before beii4g acted upon to the detithet of the first appollàflt i n his ass ssm nt of HawaêS evici nce the lu rn ci Resideót Magjsate said lotr a1i struck meas a witn ~ ssof ruthand.althou9h the. V 10 accUsed persons tried t o shake' her she rcned faj. am not unaware of the fact that she was originally öaged with the first accused person. She miht be ta as an accomplice althoUgh 1 doubt this. But eve r :. assu. 41- shewas one the evidence of.ah accomplice is admissib - i$ law4 and a conviction is not necessarily bad if it proeeds from the uncorroborated evidence of an accompie I should point out hOwever that 1 do not believe pW3 wa ceomPliCe" ether or ná H8WC, (Pw3) was an ompU this ease 'depeAds n what we mean in law when we refer to the term' ccompjje46 /' . -4- The term accomplice was defined in the famous case of DAVIS VTha DPP (1954) AC.378 in which it was hold that the term "Accomplice" includes Persons p rticipes crimirialis in respect of the aptual crime charged, whether aspriricipals or Accessories. Receivrs of stolen propurty and (3) Where a. rsb:i ja cba.rged with a specific offence.on a pertiea ccc' sian. and evidence is admissible and has been asiite-d of his having committed crimes of the identical ypo an other occasions, as proving system or nea tiv1ng intent er/ rccidcnt, partis to such other similar off ences. N,w does HQWQ, (L./3), fal]. in this category? From the evidence she was merely living with the second appellant in ConcUbinL. The room in Which they cohabitLd belonged to the second appellant. There was not the slightst evIdence that she participated in the commission of the offences Nor can she,, on the evidence, be said to have been a receiver of stolen goods. On 1he evidence befofe thower court 1 tend to agfee with the.learncd Rosident Magistrate's findingthat Hawa was not an accomplice. Certainly not within the definition of an accomplice in DAVIS V DeP*P ; But as argued by the learned defence counsel Hawa could,.i, the evidehcc; be described as a person who had an interest of her own to serve. Wheh she gave ovidance for the prsecution s h e must have been efltertaining fears in her mind that if she did not cooperate with the pbs.cution h might find herself bei charged again. : AS she had already been pardoned by having the agea against hc. r, with-drawn one c1ouldject her to give ovidance upaLab1 e t$, 'the Vjsecution. , apparently no where in his judgement did the learrted *agsate direct his mind to the fact that on the evidence Hawa was a person who had an Interest of her own to sorvc •r be no doubt from the evidence tendered in the lower court Hawa was a pperson who had an interaof her own to serve wjthj defixutio f the well known decision in R v PRATER (1960) 44 is Zhe took to her heels when she aw the police approahin • She was initially also charged with th. offences but the qharges ag1.ns..her,. were later withfr a Th...: ieg the poition these wao at stpe*g motive for not a;e ....:ta - ha tfaa' rui -for this .rQasonAe /evjdece jm1icatino 'ta .. a . i..1lJ have been close 7 7 exan4ned before bein. ace eat '' of his conviction. 4 "5- In the absence of corrobo-ticn o - Hwcs evidence it was clearly unsafe for the 1nrn.d Rei.'.:nt Mgist.ate to find the first appellant guilty of th off.ncs ch:rgcd Sea the deci1 on of this Cour in BARTr ft-oD;JLVR (1969) H.C.D 3004 AS to fIrst appilant's dofeno of alibi he pr oduced $ prescription card from K..C.M-C showirc that on 18.2.78 the day of the incident; he was tendin; tr. tm;rlt in tha hospital which it 50 rtdles from Itrusha ih his u.dgctnent the learned magistrate observed that th dates 11 1à.278" appearing on the prescription card from K.C.NC were a fr.ety. .1 have carefully examined the card and all the entries theréM but 1 am unb1e to say whether. or not any of the entries are fp rjeries. i would like to mention at this juncture that by examiflipg Q enteries on the cird (exhibit Dl) and coming to a positive fipdin 43* as to the aithenticity or otherwise of some of the entries on t the learned Resident Magistrate h ad taken the role of a hand-writing expert. In doing so the learned rnagistrdte clerly erred. If the court was doübtiful a to the authenticity of the entry 14, "18.2.78" on the c'rd th magistrate should h a ve invoked the p4sins of section 151 of the Criminal Proc. ~ dura Code and call as a wJ.ess an •fficial from K.C.M.0 who wouldha+e 2e5tied as hth the firt appellaht did odid not attend their c linic On 1862.78. This was apparently not done and hee the defenca of alibi remained uebued aking rjfltO account the paucity of evidence against the flrst appellant 1 agree witTh t.h lerned defence counsel 's submission tt It would be extrem.:l' nsfe to SUp?Or the onViction of the ftys appellant, Rodricc. ndata The conviction is accOrdingl quahed and the sentences ale ereby set aside. The accused is to be released from ctzstody QA wess ke is etherwise lawfully held / 1N. ARtJSMA MNZ, 3 UD Mhatane for the 1st appellant. Send appellant present in person. MWale (State Attorney) for the Republic/Respondent. &