19701127 TZHC Mwanza2

H IN THT HIGHCOUWP OF TLNZLNIL (In the District. LT MIANZ.A. Lppollate Ju.risciiction. CRIMINLL LPPEAL NOS43 1 ,49O,5 26 432/7 0 . Original Criminal Case N0.705 of 1969 of the District Court of Bukobo Diet at Bukoba Before L.Togemaisho, District Magistrate. bLIDI S/a LLLY, a . a a • a a a e a e . • LPPELLLBJTb. YTJSUFU © LNLTORY IF3HBNGOML, (Original Lccusod 5 3 2 6 and 4th accusici JMLNE RLMDHLNI, prsons.) LYUBU s/a SLID. ) vs. Hh HEPUBLIC. . . . . . . . . . S RESPONDENT (orig. rosocutcr) CBLRGE: Burglary and Stealing c/ss 294( 1 ) and 265 of the Penal Coda (2 ocnrn;; JUDGMENT. L.-KINDY, .eg.J. Thu appellants heidi s/a Lily, (the first appellant) 4. Yusufu O Lnatbry Ishomgoina (the second appellant), JumanncdRamcihani (the third anpallant), and Lynbu s/a Said (the fourth appellant) nero jointly chargd h and convicted of burglary and stealing contrary to sections294(1) and 265 of the Penal Coda, Cap.16 on two counts. They wore conviotd with one ;;caidelin John who has not appealed. On each count, each appellant was sentenced to two years and each was awarded twenty-four strokes of corporal -:unishment. The terms of imprisonment were to he served concurrently. pay were also ordered to pay, jointly and severally, a sum of shs.3,9 00/- to the complainant as compensation. They are now appealing against their convictions, sontoneu and orders. Thor appeals are consolidated and heard togothor. The undisputed evidence established that at aBout midnight on the 11th December 2 1969, the complainant L1'jiran Lbdallah Kabesa left his house to go to attond a dance. He left behind, nobody in his house. Before he loft, he proporly secured the doors and the windows of his douse. When he went back to his house, at about 3.30 a t m. (this would be the 12th Decemhe 1969), he found the door of his hOUSe broken and, on entering his house he found all the windows open and the inner doors, too, were left open. I-ic checked his house. He found his wardrobe broken • into and cleared of all his clothes and other items. On the same night, ho reported the inoidciit to the police station. He further said that all his clothes and goods wore marked, by him, in black ml: with his initials L.L.K, and he relied on this mark in identifying his stolen goods. Lnd, on information received., those appellants and bendolin John wore arretod. at various times, miB on various days, and at different places. On the 27t11 December, 1969, detective constable hapasa (P..4) together with prison rder Lbas (P.w. 3) went to the house of the first appellant, Saidi Lllr, the fourth appellant was also present, as was the dirst appellant hireseli. On searching his house, a number of clothing acre collected on susnieion, but when they wore shown to the complainant 4300, - -..* . (. —2-- Kabcsa, he only idntified one shirt (xhibit 21). It had the complainanl'e initials, L.A.K. in cross—examination, this witness said that they found the first appellant at a market place at Katoro and that he was informed that his house was suspected. He further said that ho informed the first appellant that his iiiformtion indicated that his uncle had bought thinga at his house, but the first appellant replied that they were not in his hc.use. Ifter the goods had been found, the first appellant told tho witness that he was not staying in that house, though it was his house, and that ho was staying in Suhumaland.Maposals ovidenäo was substantially supported by that of PAbas (P.1.3). In his unsworn defence, the first appellant, said that ha lived in Huangoi, in Nzaga District, where he had been living for the last six years. That in December 1969 he went on leave at his home area of Katoro. Ha. admitted that on the 27th December 1969, when ho was at the market, ho sati the fourth appellant with a police officer. He said. that the police officer asked him about the second appellant, Yusufu, and he told him that he did not luiow him. However, he said, the policeman - told him that the socond appellant informed him that he (Yusufu) had kcp; eart of his proper -by at the house of the first appellant, but he replied that he did not know anything about this. He admitted that thereafter, they went to his house, and the fourth appellant wont into his (first appellant's) budroom whore—in he collected his blanket, a pair of trousers ? a vast and a shirt, Thereafter, they entered a second room, but nothing was found in that room. They went to. the house of his mother where a woolen blanket, a bed cover, and a head—dross were taken. Later, he said, he was taken and charged toother with the rest of the appellants. On the follow- ing morning, he said, the police asked him to pick up his own clothes, hich he did. Then a policeman showed him a pair of trousers and a snirt , and told him that these items, too, were found in his house, but he denied. j He said the alleged shirt was never taken from his house. On this evidence, the learned magistrate, in a clear finding, held that, on the evidence of Ttapcsa and ibas, the shirt (Exhibit 21) was the one which was found in the house of the first appellant on the date when his house was searched. The learned magistrate said that there could not have been any mistake since the first appallant'e house was the only one which was searched at Katoro. In his petition of appeal, he stated that the learned magistrate erred in accepting the evidence of 1\iaposa and Pbas, without corroboration from the village eecutive oficor and other civilians who were present during the sàarch. I do not think this was necessary since the first appellant did not challenge those two witnossus about the finding of the shirt. It is only now, on appeal, that he soaks to do that. He is new alleging that the two officers conspired to put him into trouble, after they had planted the shirt on him. That had the civilian bean called, their trickery would have - been found out, n1leged that he asked the learned magistrate to call - those civilians to live evidence but the learned magistrate refuscd. However, oifl. 90 U01tOC.3 DU000S Dt. VtM SW4t °fl- i4T Putt 011 TeTIT PLJ 'SflOI S u 0 Ut0Ith!OO OU. JO OSOt c 1qT woaT UOO.S )T3 LO)OIq pOLl OtT;ZQ DTIA SOM ?Lt TiNT pop.iWpO osoO uoinoosotd oiq. To pto D. .O 1 04M 'utof oIxto'uop '0o -jt1. oxoqwo.j woxj uxnox sit uo :'oOq !Dt. TOOTTOO pnot otj puo otpoi puo soto'o stt putioq uToo1 0011 3 7 P1°I- OtttTOpUDj' -t1T '0010Tq o4iooJop 0 tfl.tM 09fl014 SIT Oj. UOM pUOiJ StT pUS DuTTOPT1 01.1 pDF3n002 Ot. qeqT ir.oO 10Tt. Dtfl 1?IOTh ustlodde pu0000 OU UOW9.0.S ucoi.iotrn U[ 'U0f DUTTOPUOM TO JiOctOtC1 0Lfl OJOM S9toO LT pUS OtpSx ot. witj poq. zot.os rotiod ritrq. o o wp usrt JO OwTI. OT. 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On this evidence the learned magistrate was satisfied that the items found with the second appellant were the property of thacomplainant, and which were stolen on the night of 12th December 1969. he then addressed him- solf on the icsue of joint commission of offence. He took into :considcra- tion the fec' that the second appellant was found in possession of the stolen items 1 four days 9 after the breaking and stealing, and therefore the second' appellant was either guilty as charged or he was a guilty receiver0 He specifically ruled out the latter possibility on the ground that it was impossible for the second appellant to use the goods, as he was found at the time of his arrest, if the goods wore in fact merely kept temporarily by handeline. Ho said he could not have been wearing them at all. ind that tue fact that the second appellant was using them, raised a strong suspicion that they must have boon his property or for his own personal use. He also took into consideration, what he called, an "indication that the second appellant borrowed a pair of trousers from the fourth appellant, although he did not holievc that was the case. For those reasons, he convicted the second a7e1lant as charged. In his petition of anpeal, the second appellant said that he did not understand why he was convicted as charged when the thief, 'endoline John, himself admitted committing offence. I think the learned magistrata i in a clear judgment, stated his reasons for convicting 1±ij as charged. On the ether evidence, he came to the conclusion that, although handeline said that those items ware his property, the second appellant was the owner of those items since he was using them. If he was not the owner or possessor, he would not have been using them as ho did. I think it is clear that the fact that he used them established that he was the claimant to the property in the absence of any evidence to suggest that the second appellant borrowed them from Wendalino. If those clothes had been lent to him, Wondolin and the second appellant himself would have said so in their statements. He also alleged that when he was wearing those clothes and holding that radio, he did not know that thoy were stolen property. Here the appellant, was confusing the offence of roceivin. stolen property knowing them to have boon stolen or unlawfully obtained in the burglary and stealing'. It was not necessary for him to knOw that they were stclen property, if there was evidence which suggested that the property was not' only that they were stolen property but that the appellant., in conjunction ;ith others, stole them after breaking into "the house of the complainant. I am satisfied that the learned magistrate's finding is justified by the evidence, and therefore he was entitled to convict as he did. rgain, acting on information, the same detective constblo (,aofrey Elias (P.J.2) 7 wont to remand prison on,tha 18th December 1969, whore he asked prison warder Lbas to call: the, third appellant to him and he did so. He was brought and he was fou'w3ariflg one pair of trousers, a 'totron shirt, a black belt and a pair , of shoes. He too).: the so and other under dresses, and he issued acknowladgmont rocciot to the third appellant (i.xhibit 19). Excpt for the under dresses, the complainant identified the rest of the clothes as his property by the initials JK th 8, 9, 10 and ii). In unaworn evidence, the third appellant said that on the 11th December 1969 he was in Mwanza, but he left iiwanza on that data for Bukoba, and that on arrival at a bus stand ho was arrested on suspicion that ho stole froa the house of William Groan his former employer. He claimed that he had boon in remand from 13th December 1969 to 18th December 1969 when. members of C.I.D..Departmcnt followed him at the remand prison0 He that the itams seized by Gcorey were the ones he was wearing. He argued thathc was given a written acknowledgment. He said after he had boon discharged in respect of that case for which he was originally arrested, he want to claim his clothes from police custody, but.tha store—keeper at the police station was not there.. He want on the following day, and this time ha said ho was informed that the complainant had identified the clothes. 110 claimed that although he knew IJandolino John, the clothes which were taken from him were his property. In 'ospoct of the shirt and the pair of trousers, ho produced two old receipts alleging that they were the onus ho had been given at the time he bought those clothes in Dar as e1eam. Lnd for the shoes, which did not hoar the complainant's initials, he called one Gopal Lmbaram (D.w.1). In cross—examination, when ho was shown the initials on the shirt, the bolt and the pair of trousers (Exh 14, 16, 13) he said the initials were not his and alleged that these initials were written on those clothes when his clothes were taken to the police station, and that it was the police who wrote them in order to incriminate him.. Puther on he said that, Wandalin John, lied when he told the court, in ala defence, that he was the one who had kept those .cloth3s with him. lut he said the clothes Wendelin had left with him in July 1969, had already boon handed over to Wondclin's brother called Kea, but he did not wish to cell Kea as a witness on his behalf. Gopa]. (D.W.1 .) said that although ho could not remember the face of the third appellant, it was possible that the third appellant might have bought the pair of ShoeS and when ha was shown the receipt Exh D3 9 he could not tell whether it was from his shop or not as he did not write in Roman letters - he could only write in Indian script - but he said his son, who spoke English, could tel]. whether g:h D3 was a receipt from their shoe shop or not. However, the son was not called to give ovidence. In addition to that, the third appellant called for the police Cccuronco Book (popu1a1y referred to by the police Ls G.B. bock) and it was produced by police constable Peter (D..2)0 '21, 1 record showed that the third appellant was rcccivad.t the police rcreend custody cn the 12th December 1969 at 10.50a.m. but he was released a(.a±fl on the 13th December 1969 for some further investigation. Ls far as constable Peter .ould recollect, the third appallant,wes placed in custody in connection with this c.sc. Lgain, at his request, q istrict Court Criminal Case file No.690/69 was produced (Exh D6. This record itct otjq noq tA21TDdd TJ STTfl P°T °H epwtw Btt{ Ut uoiOidSs potJ sttTq. pue 9UTaeOM UISUOO OTTT uoos uojo pq 011 otto ot. o. TaTTIUIS sioitoiq itcI UTIDM S U rA Ct Uq. pOOt.OtZ Ot UI WItI 911Iq4IU;p3 S'?M Ott UOttM j.O otq. ptro 66961 ioqiu000r ot. uo uosixd puwoz otfl. Te luelTodde ttro.; OtPr PDATDOOJ OTT )3t. pios oortou S 6 tttSTtOO SIt WOaj TJOT['. Otfl. qnoq MDU)T OttM tqj tpt nqrt.r wt pu (Y'd) utTIodd ttmoj o. o q.o'odo vr.xow ott st 6 u cT.iT.j'o -fAl. ioto otjq. JO osot. ot 'I2ocIdl2 sttt puO t000t uo oOuDp'tM °tPr itc potjtsnr 3M .u211addO o uO.OtAu3O :)iq. pot;st.e urn I 'fl 2 °IT°° STtI jO oO?Id LIT OJSnS O. P 010 JJ 0 flOM LtOA oqM 10UtWtI0 pOtXOpt UMOU Ut1OpUO1.1 J0 O/tI OAtt pTnoo iptxo Ot. uO DJ OU pUOO 0t4 tfl P1O ttIt oio;oxotq. 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