19710113 TZCA Dar es Salaam

L _ _ _.1 .1.. JP..•... 1~•,.1ia.:t.•o. at Dar es Salaam Criminal Ap_p3al Nos. 140, 141, 142.,. 14B and439 of 1970 ( Original Cri. minal Case No. 406 of 1969 Of the District Court of Mbeya District at Mbeya) 1. Steling s/o M.waluvanda ) 2. Lsega s/o Kibina ) 3. Wailesi s/o Siwambali ) ••••••••••••••••• Appellants 4. Redison s/o Jimmy ) 5. Sibaja s/o Chalmpewa .• ) Versus: Republic ••••••••••••••••••••••••••••••••••••••••• Respondent

JUDGMENT BIRON J. - On tne 18th of June, 1969, a motor lorry towing a trailer transporting a load of se..:ond-hand clothes in bundles to ,;the value of shs. 50,000/- from this country to Zambia, driven by one Ismail Idirisa, who described himself as the Assistant Traffic Supervisor of Tanzania Road Service, Mbeya Branch, broke down on the road a.bout thirty miles out of Mbeya towards Mbozi near Ruanda village. The driver was unaccompanie a. He got a 1if t back to Ivibeya in order to obtain some spare-parts, and he was forijed to spend the night in Mbeya. rr·he unattended vehicle left on the road was robbed and there was pilferred therefrom a large number of bundles 8f' clothes.. Nine men were subsequently arrested of stealing clothes fr:Jm the consignment in the vehicle. With the exception of one man who ha.ct a previous conviction for cattle the.ft and was sentenced to .imprisonment foi· two and a half' years, all the other eight convicted men were each sentenced to imprisonment for two yeara. Of the nine men convicted and sentenced, five are now appealing anu their appeals are consJli oa tea. In this judgment f'or the sake of c::invenience, I am retaining the descriptions of the appellants as trey were described in the lower court; the appcllancs bein 0 the first, second, seventh, eightt,and ninth accused. The nine men convicted fall into two main divisions. The first four

accused oelong to :me group, whilst the case a.gains t the other five accused an:1 the e vide nee connecting them with the offence was individual and specific to each of these five . accused. Three police officers, Detective Corporal Chacl1a Isangula { PW2), Detective Corporal William Mbungu (PWe} and Detective Constable Stafford Mlambya (PW8) testified that they were in a police vehicle patrmlling along -tlie.. Mbeya/Mbozi Road on the 18th June, 1969, and they passed -/2 Ruanda village at abou. t 8 p.m. They passed· I vehicle with the consignment of second-han6 saw a large number of people taking bundle, the vehicle and hi ding them in the bush. / stopped their vehicle a little beyond the, to which they went back on foot. One of ~ fired a gun in the air to frighten away the')J:i.~ from the vehicle, and the police caught and apprefieb\), first four a_ccused in t~e very act of carryin¥ a way b~~.::,-...___ , of clothes from the vehicle. After a search 111 the v1cin1ty, ------ the police found hidden in the bush fourteen large bundles · and twenty-two smaller bundles-of clothes, Subsequently and on different days, act1ng on information received, the police:;iound the other five accused in possession of s:)me clothes, which Ismail Idirisa, the Assistant Traff'ic Supervisor and driver, identified as emanating from the consignment of second-hand clothes he was transporting to

Zambia. •. It is now necessary to examine the case against ea·ch of the appellants separately, 1 l1he first and second accused were as noted, amongst the first four men caught and arrested, according to the three police witnesses, in the very act of carrying away bundles of clothes on their heads from the vehicle. The fir st three of these accused in their defence all stated that they were going to a mourning ceremony when they were met by the police party on the road, and accused of haMing taken clot res from the abandoned vehicle, which they aenied. The fourth accused in his defence stated that he was actually arrested at his house and accused of stealing from tte vehicle. But we are not, however, concerned with him in these appeals. If the evidence of the three police officers is to be accepted, and no reason has been advanced, nor does any suggest itself why it should not be, the first and second accused who are appealing, were caught red-handed in the very act :)f' stealing from the vehicle. Their appeals from their convictions are trerefore devoid of any merit. -f)ie... The case against"otrer three appellants must be considered separately and individually. Acting Jn information received from tre local Village Exe cu ti ve Officer, Detective Corpar al William M.bungu ( PW9), on the 26th of June, found the 7th, 8th and 9th accused who had actually been apprehended by the

Village Executive Officer, in possession of' some clothes which Ismail Idirisa, the rraffic Supervisor and driver 1 of the vehicle, identified as coming fr:)m his, 0 onsiggment of second-hand clothes,. · ••••• 3 ·, .\ °', \ '',l\ . 1 I• ·1 ,, ·~ I In the possession of the 7th accused, there were found a shirt and an unaerwear (sic). In the possession of the 8th accused were .found a pair of trousers, two shirts and al s::, an 'underwear', am in possession of the 9th accused, there were found two items described by the police witness as blouses, but by the Village Executive Officer as shirt.s. In his judgment, in c,nvicting t ~ se three Hen, tb.e . ).magistrate stated i.nter alia, 1•Accused ~rsons did not satisfy t ix! Conrt as to how they came by the clothes in question. I1111rtt1ermore, I do not believe their stories to be true in that they fa.i.le d to call wi tl)esses in support of t re ir evidence. 0 . In identifying the clothes allegedly .stolen, actually all t re clothes which were recovered and produced in Court, tt Ismail Idirisa stated and I quote; 0 I identif'y the whole :~' exhibits in C::>urt t:.1 be the property of 1:i1ZRS, Mreya Branch, in that is it the only company in Tanzania. which exp or ts the second-hand cl::>thes to Zambian. As agreed by learned State Attorroy, this hardly constitutes proper identification o!' the clot hes .tourlCi in possession of the

accused particularly so in the: case :Jf the three accused who are apr;ealing and with whose appee.ls we are now ... dealing;When so tew iterLs were found in their possession., I>"lurthermore, as conceded by learr:ed State Attorrey, the magistrate appears t:J have throim the onus of proving tr1; innocence of' their _possession em the accused, vhen as the clothes f:>u1.t"i in tl.leir possession were n::>t sufficiently, or even at all ictentifed as having been stolen, so as to lay any .t::mnuation or oasis for the presumption a1'i.."3ing from the possession of recently stolen property. These three c:1itfff.ftr.1t, those of the appellants , accused No. 7 - Isega Kibina, accused No. 8 - Radison Jimmy ~d accused No. 9 - Sibaje Chakupewa are accordingly allowed, and trt3ir convictions, which are ·not supported by the Republic, ar~ quashed and. the sentences imposed thereon a.re set aside .• If these three appe.llants are not otrerwise la.wfullly held in custody, they are to be released forthwith. To revert t.) til: appeals o:t' -the first accused, Stelin:fz s/o M.waluvenda and the second accused, Wai1esi s/o Siwamba1J., whose convictions have been sustalred, although the sentences imposed on ·them are severe, they are not in all tl~ circumstan::es, so excessive as to just~fy interference. by ttns Court. The appeals of these tw:) appellants are accord1n~ly dismissed in toto, and the

sentences imp.;-;;ised on t h~1!1-, which .require c~nfirmation by this Court; are hereby c~nf irmed • ••••4 / For the sake of the record, I ought to add of the .four convicted men who have not appealed, two like appellants whose appeals•'" ~ave been ·di>smisseq, were caught red-handed stealing from the vehicle, whils4; in the possession of the other two accused there were found resp; cti vely, twenty-seven and twenty-eight items of clothing, in respect of which they could not give satisfactory explanation.s;;, Delivered in Conrt at Dar es Salaam this 13th day of January, 197~. { PIITLIP BIRON)

JUDGE ' \ \