19800611 TZHC Tanga

m6# J6f IN THE HIGH COURT OP TANZANIA. AT TANGA APPELLATE JURISDICTION OBIMIJAIJ APPEAl, NO, 82 OP 1979 2JUL 1980 --S - anr ,nrn a nrwy.j,rwr A .r PA A Ctt. Sta p.01 Ins.-. V.. LJN tUJ ULU.1Y1.LL &b UAQZ J.4 0. j4 OP THE DISTRICT COuRT OP TANGA SJLLEHE MGFNI,.........ORIGXNAl, ACOuJ5D VR E BUEIIO 9ares. Stealing ole ?65 of the Penal Code. JUDGEMENT Sisya 3: 00 The appellant ando others pleaded not guilty before the Resident Magistrate., Tanga, to a charge of Stealing a motor scooter 4 ,0 valued at ehs 1O,OOQ1-., His coacoused were acquitted at the trial whereas the appellant was oonvicted on aif alternative verdict, of receiving stolen property contrary to section 311 of the Penal Code and he was sentenced to a tern of two and a half years imprisonment, abject to confirmation by this Court. He is now appealing against both conviction and sentence.. On grounds of 4 I expediency I shall ietain the description of the accused as they appeared at the trial The appellant being first accused. The 9tab1ished facts show that on the night of ll.278 a motor scooter registration no TAM 796 belonging to the complainant was stolen from outside the house of one Mweri Simba to whom he had lent the same. The said Mweri Simba did not give evidence at the S trial Nevertheless the ratter was reported to the Police and investigations began. Sometime in October, 1978 acting upon information reoe.ved the complainant prooeeded to Kilimahewa area along the Amboni Road .. .t2 S . IV- ... 2. iile there and in the bush he saw and subsequentlr, recovered therefrom the frame of his missing motor scooter, Exh P2. He identified it from its frame number which was then still there and ].egib1e Later on 29/10/78 the first accused approached one' 11 Fabian Herman (W4), a store—keeper for M/S Car and General Ltd. who sells, among other things, motor scootera and motor cycles along Market Street, Tanga. The former enquired from the latter if he knew of any persons who were in need of spares for a "scooter 20000u which he, first accused, said he had It was within Pabiants knowledge that first accused had no "Scooter 200 CC": but only "Scooter 150 CC" for which he first accused, used to buy spares from the Car and General shop. It was also within Fabian's knowledge then that the complainant's "scooter 200 CC" had been stolen. As a result of this Fabian became suspicious whereupon he decided to and he did mention the part of a motor scooter which he knew carries the manufactures number, and that was a crank case s However, no where in his evidence does Fabian (PW4) appear to 'have taken any trouble to find out or ascertain from the first accused whether the said parts of a "Scooter 200 CC" were his owa. It seems he only took it for granted that the said spares were first accused's own, Be it as it may, Fabian told first accused to - bring the said crank case at 4.00p.m. as there was a person who needed it The first accused went away and meanwhile Fabian ô oontactédthe Police who promised to cover the transaction. At 300p.m the tirst accused ttirned up at the premises of Oar and General with a crank case of a "Scooter 200 CO'S, - It I I The Police had however, not yet turned up. Fabian managed to talk first accused. into leaving Exh P 4 there first until 4.00 p.m However when he first accused, turned up at that time Fabian returned it i.e. Exh P4 to him on the pretext that the prospective buyer had changed his mind As first accused stpped out With EXh P4 he was accosted by D/a Saidi (pw5) Who was waiting outside. The first accused was, thus arrested with the crank case of the Stolen Scooter. According to Saidi (Pw5), when asked Where he got Exh.P4 tromp the first accused replied that he got it from a person Who I / was residing in Dax-es..Salaam . The first accused himself in his statement in defence s however said that when challenged he admitted to PW5 that he was the person who brought the engine cover there, . He added that it was p however, not his own and he invited 1'W5 to accompany him to the owner. PW5 refused saying that the person he knew was him, ie, first accused, Whom he had arrested with the object. The version of the story given by the firat accused on this aspect of the case Is In fact confirmed by evidence on the Prosecution own side 0 This is the evidence of No. C 4811 Detective Constable Mangu. (pW3). He testifiOd to the effect that on 30/10/78, a day after his arrest first accused was handed over to him by one Sgt Mbaruku for further investigations. That was because the first accused had claimed that the motor cycle part which was found on him "was not his and that he was just given by a person with instructions be goes to look for a person to buy. it". 6. PW3 acoupauied the first accused to the said person who brned out to be third accused On a date which according to the record s is shown to have been 12278 but referred to by the learned trial magistrate in his judgement as "one day in Pebraary, 1979", no 02228 Detective Corporal Mrefu (PW2) went and searched the residential premises of third accused. This was as a result of information received by him from first accused. The third accused himself was not present 0 at the time of the search. The second accused who p inGidentally, is son of third accused was however present. From the store PW2 found and seized a motor scooter seat, Ex P.3, which was later indentified by the complainant as a Qomponent of his stolen scooter. j. .• - ., -- - In a long and tedious story in defence the first accused insisted that he got the housing B1ook Eth P.4 ) from third accused who also asked him to sell it for bim Thi was p I dare says not - - . - surprisingly denied by the third accused 0 - The second accused in his statement in defence claimed that • . •-• .-. it was the first accused who brought the seat s Exh P3, to his fatherte - - i.-.--- - '- - house. The first accused used to visit the said house frequently. However, when the Police came they found the seat and seized it. • - . •.,• .. - . . , ,. JL Thefirst accused ta11ed one witness on his own behalf at •, :- the trial. - He is one Amiri Hinda Nyaa (DW who described himself -. - . .: - . - •- - as a clerk with the Tanzania Fextilizer Company (PC), Amiri teetified. that on a date which he could not recall he was present -- I. when second accused arrived at the house of first accused with -•.' . . - •. . :i i'. - '• :---• - -i :-- two engine covers for motor cycle. Thereafter the first.and second accused persons left together. Later the first accused inforned him that the items which second aocused had brought were stolen property. In dealing with the defence of the first accused the learned Resident Magistrate directed himself in the following terns and I Cluote from his judgement: U The first accused said here that the block was given to him by the third accused to go and sell. The third accused denied this and said that on the contrary he was looking for spares. In the absence of:anvcorrobo.- rative evidence I find it not easy to believe that it was thethird accused who gave the block to the fizt 4The iniderecorring is mine). With respect, this is a serious misdirection. The position at law is that the learned Resident Magistrate did not have to believe what the first accused said in his defence: The issue of corroboration is consequently, therefore, an anachronism in this respect. For the defence of an accused person to succeed it is sufficient if his story in defence or what he states in his defence, in all the circumstances of the case, sounds reasonably probable. As a matter of fact,. in this case s even if corroboration were necessary according to law, I would hasten to point out that there is more than sufficient of it on record, and on the Prosecution own side too. Without beating about the bush as the first accused, quite correctly, avers in gund no 4 (a) of his petition of appeal his account "was oiently corroborated by the evidence of D/O Mangu (pW3)" 4 I I 6.. To demonstrate, P31 it will be recalled, said that the fjrat accused was handed over to him on 30/10/78, a day after his arrest s for further investigations. Thereafter they .prooeeded to the house of third accused where they found him with second accusect o PW5 m3naged to hide his trne identity to both second and third accused persons to whom be was introduced simply as relative of first accused. In his evidence on this aspect of the case PW3 to recorded to have said and I quote from the record: "The first accused was caught with an engine Block. (Shown Exli.p4 and says): this is the one I was shown the first accused was caught with * xz..lst aced: In your discussion with the third aoeuaed I heard third accused say he had not received the money from you for the Block" When cross—examined by third accused pW3 is recorded to have said and, again, I quote from the record: "xxd-3rd accused: You were claiming from the first accused 0=0 money. This was money f or the spare you gave him. This is what I gathered from the conversation between you and the first accused." As aforesaid the third accused denied handing over Bxh P4 to first accused Admittedly, PW3 did not specifically say that the engine Block which first and third accused talked about was Exhj'4 Nevertheless, in all the circumstances of this case, particularly because third accused himself categorically denied having had any dealings in motor cycle spare parts with the first accused, the only reasonable inference to be drawn from the evidence of PW5 on this aspect of the case is that the said engine blook must have been Exh.P4 As regards the seat s Exh P3 the learned Resident Magistrate said that it was clear, most probably to bin, that the same was found on the first accused. .17. 46 I I # .th the greatest respect, this is outrageous. The evidence on the Prosecution own side s in particular the evidence of Detective Corpora]. Mrefu (2W2), clearly shows that Eh P3 was found in and recovered from the store of third accused and that happened in the presence of second accused. In dealing with this aspeot of the ca8e the learned Resident Magistrate had this to say and, again, I quote from his judgement: "As regards the seat evidence has shown that from October, 1978 the first accused used to tell the Police that 3rd acueed had the other parts of pWI's motor oycle. D/C Mangu PW3 followed up this matter but nothing came out of it" I think s at this juncture, it is convenient to let D/C Mangu (PW3) himself to give out his story. He is recorded to have said and I quote from the record of proceedings:-. "I am attached with the District CIA, st Tónga 30/10/78 I was banded the first accused by St.Mbauicu and told to look for motor cycle spare parts. 8gt&báruku said first accused was caught with a motor cyóle part. The first accused said the item was not his and that he was just given by a perSonwith instructions he go to look for a person to buy it We thus had to go with first accused to the person he said be gave him the item. That person turned out to be the 3rd accused. We found him with the second accused his son. The first accusedthe asked the3rd accused whether he could et the seat. I was there.' The first accused had introduced me to the second accused and 3rd accused as his relative. The 3rd accused sè.id fir5t accused could get the seat but it was not therej They too talked about other motorcycle , spare parts. The 3rd accused then told the 1st accused that be will send his son Shamba (Siø)to go and collect them and he could conie later to getit.." (The underscoring is mine). in its own 1' espoot 1 This piece of, eridence, clear as it j5, I the learned. Resident Magistrate goes on to says There is no plausible explanation as to Why from October 1978 to February 1979 the first accused did not tell the police to go and search the house of the 3rd accused. .18 I I / —8- I find as a fact s therefore that it was the let accusedwho took the seat to the house of the 3rd accused." This finding, with respec -t, is against the evidence on record. As. unbeli.evable for the observation, it is . . that the learned Resident Jagistxate seriously expected the first accused to tel]. the Police what to do. On the other hand he told the Police all that they required from him. All that remained was for the Police to make a follow up even by going to the shaniba from where third accused Said he would fetch more spare parts. This they never did. As a matter of fact if PW3 were smart enough he would have got more if not all the necessary and relevant details, if I may be excussed for iising the expression, from the horses - S - own mouth, I.e. from third accused. His - identity had been successful- 1r hidden when he met the third accused, At any rate the first accused cannot properly be blamed or be allowed to suffer because of the moo- petence of PW3 as a detective or of the Police in the way they han&Led the investigation in this case s Pinally, the learned Resident Magistrate made absolutely no mention whatsoever about the evidence of DWI, Ainiri. The only reasonable inference that can be drawn from this is that the learned Resident Magistrate did not consider -the. same. The first accused must s Quite correctly, have expected the learned Magistrate to consider the said evidence and to say openly whether or not he accepted it. Therefore for failing to consider the evidence of DWI the learned Resident Magistrate erred in law. It is now not possible and/or proper for me to speculate on what would have been his decision in this case had the learned Resident Magistrate considered the evidence of Amiri. .19; I In the event1 for us.xig the wrong neaure of proof for the first accused's defence; for failing to appraise the evidencö with judicial objectivity and for failing! to consider the evidence • of DWI the learned Resident Magistrate ei'red' 1 The said errors are incurable as 1 no doubt s the first accuse4 has been prejudiced • thereby It fol1ows therefore 1 that this appeal has merit and it muSt sucoeed • The conviction is quashed and the Sentence of two and half years imprisorment is hereby se.t as1de Unless the first accused is being held for some other lawful puzpose(s) he 8hould be released from prison forthwith, It is o ordered. Delivered in open Gourt at Tanga this 11th June,1980, - ::' /Y• . -- ( H.ED.tsya) . •: -. ---- -- --..- Judge : /