19781130 TZHC Dodoma

V IN THE HIGH COURT OF TNZANIA.

AT DODOMA APPELLATE . JURISDICT ION CRIMINAL APPEAL No.125 OF 1978 . ORIGINAL CRThILTAL CASE No1 202 OF 1978 OF THE DISTRICT COURT OFSINGIDA AT flGA 1. SAIDI ABDAII1AH ' AHELLkNTS versus THE REPUBLIC . .. . . . . . . . RESPONDENT

JUDGMENT

JONATH Before the district court of Singida were two accused e charged jointly with stealing from a motor vehicle c/s 269 () of the Penal Code. They were convicted as charged and each sentenced under the Minimum Sentences Act to 3 years' imprisonment' Against.the conviction they have both..appealed to this court through their advocate, Mr. Ohambakare. On the relevant day at about mid—day Pw.1 and.Pw.4, both employees of the Water .Department, Singida app.a± tb have parked a Land. Rover with regi:stra±ion No.ST.3562 somewhere ' in the township to buy cigarettes at , a shop nearby. They returned aboirt 10 minutes later only to find the spare tyre had been stolen from the back of he van where it had been secured. They at once combed the neighbourhood and, following the tyre marks on the ground, they came, to the 1st accused's house. .Theyéarched inside and cutside it,. but in vain. The marks did however contiue past the house to me grass where they ended. They then decided Pw.i, the driver, shoujd report the theft. at the police station while,Pw..4, a stor clerk of that department, stayed on to keep . wa.tch for aiy more clues. . . . According to Pw.4, while he was ... c watching but in the area he saw a tyre 'offloaded from a vehicle and pushedto the house of Pw.3 by the accused persons. He therefore telephoned. the police. It wOuld appear that, in the .meantiie P. 2 7 amotor

mechanic of the Wat,er Department, Sing ida' had beé±i stopped by the second accused who was accompanied by the st accused hiring him and the land Rover he was driving to take their tyro to a place in the township. - 2 - The second accusec1 he continued, then bronght forth a-Land Rover tyro Pnd put it on board the vehicle. From there, they V drove to a house where the àccüsed persons off'loaded that tyre and paid him she. 10-as, the agrd reward. That transpired to be the house ofPu3 :adcording to wiOSe account the tyre was offloaded. at his hoiise y Pw '2 'Who, then. diove off leaving the ,two.ccusod,the'o. They wished to keep the tyro at his but the' witnes'wold not have them do so, so they took it away. The police in response to the telephone call of P9.4 came to th area and found the ,tyre having been left ate a f Ootpath, not tar. from the 1st accusedts house The second accused was than arrested end teJen to the olieo station but not the 1st accused who appeared vcy drunk and who was loft alQne for the time being0 That, in brief, was' the prosecution evidence, at the close of which Mi'. Mwai1unga';' the' loomed advoca,te - conducting the defence, sought and obtainQd an -djournmient of ab out two weeks to' enable him" prepare the defence. At the resumed hearing, however, the accusod persons in answer to the provisions bf section 206-of the CO said, obviouely on the learned

advocate 'a advice that. they, would not give any evidence dnd they would not call any .oither 'The strategy of Mr. Mwailurga ap:ears based, on his contention that tlie yre had not boon identifioci'as belonging to tho Water Dopartmdnt or to any one at all,, and that in the absence of ovidthce to that effect, his ciiñtscotld not be said. to have stolen it. However 2 ci ch centeation n o eptly ismissed d by the learned district meistrete in his jud,gmnt,, did not seem to tike stock of.the 'evidence0 In ±airnoss, to the learned advocate, he did however, nprrociate that P, 1 had said he identify the 'exhibit tyre as that of the Water Department - by its erial number. Of such evidence, however, ho said that, in his .opinion 1' the witness had notod the serial number only after the tyro had been 'found. Thoro was no evidonco with respect to tho learned advocate 7 to back up his bpinion. n the contrary., the witness in answer to a question by him, id he had recorded the serial number of'that tyro It is howevOr true, as argued by the learned advocate, that the witness did not show where he had made note of the' serial nunbdr but, going by the record, it is oqually true' that the advocate did not re-cluira of him to produce such record. La the" light of Pu l's ovidonco, theiefero prmm £"cio, Lao Lyre was identified as belonging to the Water Department 3 Were that to be found

insufficient, there was also the evidence that that was the tyre stolen from motor vehicle Registration No. ST3562. It is public knowledge that the letters "ST" on vehicle number plates' are peculiar only to vehicles belonging to the Government of Tanzania. 'The exhibit tyre being the spare tyre of that motor vehicle, the clear presumption was that it was Government property. Be that as it may the interest of Government in that tyre would at least have been that of a special owner withm the meaning of . se&tion 258 of the Penal Code. (r. Chambakare at the hearing of this appeal took the point that .3 and PW,4 contradict each other in their 'evidence as to which, between the 'second accused and Pw.2,' offloaded the tyre at the house of Pi.3. Pe3 said • that was done by Pw.2 while Pw.4, and indeed Pw.2 himself, said it was, the second accused. I would however think this is ap.oin± of detail about which the witnesses could not,, have been that clear, and I may note in this connection that Pw.3 was inside the house when the tyre was'taken out of the LandRovr and deposited at his house, which is to say ? I would thnk,,that he could n ot, say with certainty which of them did' the ' off loading. The learned advocate has also urged to. view the accou of Pi 0 2 and Pw.4 as suspect, the former in that it must have been an unusual co.ncidence for the accused to • hire a person workng in

the same department as the complainant, and the latter because he did not raise an alarm as soon as he saw the accused .pers.ons in possession of a land Rover tyre in suspicious circumstances. As regards 1N.2, there is no evidence to suggest that he was knorn by the accused to be • working in the Water Department an&.t may well be the culprits stoppQd him :ittle knowing his employer was the same d:epa.rten. 'as owned that tyre. I. am also in agreement with the learned state attcrney that the corduct of Pm'7.4 attracts no suspicion either. ie saw two peopie at the house of r.3 handling what he suspected to be the missing tyre 'and as he knew them there could have been no neceseity for him to raise an. alarm jstthen, and I cannot say he acted unwisely by asking some people, to keep w,atc1a on the suspects and the tyre while he teLphoned the police. was, in any case the evidence of Pw,3 which. fully roborated the accQunts o''Pw,2 and 1 w.4 as regardsthe • fact of the accused being in possession of that tyre at his house. In my juidgment;"ijn he absence of adefence, the Only reasonable cOnclüon .o draw from the facts .Q the evidence was that the StolEn tyre, property. of Government, was found in the possession of the two accused persons. 4 As however rightly conceded by Mr. Lyimo for the Republic ' the, is a grave doubt if the first.:accused was consciously in possession of that

tyre so as to hold him as the thief or a guilty receiver. Both Pw.3 and P.4 sd the accused was eitner drunk or very drunk. That would seem t o. For, although both accused were found present at the house of the first accused, only the second accused was immediately arrested and taken to the police station0 His own participation in the handling, of the tyre seems to have been minimal, and only the second accused appears to have controlled the movement of that tjre. The impression to be gleaned is that, all along in the handling of that tyre, the. first.accused was little more tiena by—stander as the oth..accuèe4 made efforts to hideaway ±he tyre. He should inthe circumstances be'given the benefit of doubt either that he.wáe.too di.nk to knowhe was being criminally involved or thalE,having in mind his drunken condition, his mere presence both at the time the second adcused stoped Pw.2 and at the house of Pw.3 did not necessarily constitute him an aider and ab'ottor• of the theft by th€. second accused. Accordiagly, as regards ham "the appeal: is allowed, the conviction and sentenie being set • aside and an'o'rder being made hereby to effect his immediate release from custody, unless he is otherwise. lawful'ly held;. .Ooming back to the second accused's possessióm of that tyre, therecan be no doubt that, inthe absence of any explanation, such possession, so soon afte±the theft,

was Ottr1butable only to him as being the thief., and I am satisfied he was rightly bonic'ted.. As for sentence, Mr.'Chambakare. has raised the possibility that the accused may not have known the tyre was property of Goiernment so as to bring him under the N.S.A. ±th, this I would respectfully cJ.isagree. The Land Rover from rhich he stole that tyre had an "ST" number plate and therewas compelling presumption that he knew the tyre was G-oyernment property, especially as he himself appears to have been a driver of the r'Iinis - ury of Health. As however more cogently submitted by the learned state'attorney, the accused having been convicted under section 269(c) of the Penal Code the N.S.A. did not apply,notwithstandin that the tyre was property of Government. ' , , • ' On the basis that he should have been sentenced without reference to the LSOAb the sentence of 3 years would appear too severe for a first offender as the second appellant, considering that as the result of the conviction he must have lost his job with Govenixaent. Accordingly, there is substituted a sentence of 2 years' imprisonment. Delivered in open court this 30th day of November, 1978. I. M. JONITFIJN

JUDGE