ERASIMU DAUDI v REPUBLIC 1993 TLR 102 (HC)

 

ERASIMU DAUDI v REPUBLIC 1993 TLR 102 (HC)

Court High Court of Tanzania - Moshi

Judge Mroso J

E CRIMINAL APPEALS NO. 2 & 3 OF 1993

12 March, 1993

Flynote

F Criminal Practice and Procedure - Charges - Charge of breaking into a building

with intent to commit an offence but facts show breaking into a dwelling house -

Charge defective: ss 294(1) and 297 of the Penal Code.

G Criminal Practice and Procedure - Charges - Duplex charge - Offence of breaking

into a building with intent to commit an offence therein and offence of theft charged

in one count - Charge is bad for duplicity.

Criminal Law - Theft - Doctrine of Recent Possession.

-Headnote

H The Appellants were charged with and convicted of breaking into a building with

intent to commit an offence therein, namely theft c/ss. 297 and 265 of the Penal

Code. A girls' school dormitory was broken into one night and personal belongings of

some school girls were stolen. After mounting a search some of the stolen items were

picked from different places. A schoolgirl's skirt was found in I the Appellant's

homestead. The

1993 TLR p103

Trial Court record showed that the offence of breaking into a building with intent to

commit an offence A therein, and the offence of theft, were charged in one count.

Held: (i) When the building broken into with intent to commit an offence

therein is a dwelling house, as in this case, the offence is housebreaking, and because

it was committed at night, the charge should have been of burglary, not breaking into

a building with intent to commit an B offence therein;

(ii) Breaking into a building with intent to commit an offence therein and

theft are two separate offences which should be charged in two separate counts; by

putting the two in a single C count the charge was bad for duplicity;

(iii) Suspicion, however strong, cannot form the basis for conviction of

theft.

Case Information

Appeal allowed.

Case referred to: D

1. Bachuka Amerika and Others v. Republic [1979] L.R.T., n. 8.

Mlambo, for the Respondent.

[zJDz]Judgment

Mroso J: Appeals Nos 2 and 3 respectively of 1993 have been consolidated for hearing.

The E appellant in Criminal Appeal No 2/93 is one Erasimu Daudi, henceforth in this

judgment to be referred to as the first appellant while the appellant in Criminal

Appeal No 3 of 1993 is one Erasto Daudi, henceforth to be referred to as the second

appellant in this judgment. The two appellants were prosecuted jointly in the District

Court of Moshi, along with three others, on three counts of breaking F into a

building with intent to commit an offence therein, namely theft, contrary to s 297

and 265 of the Penal Code. The appellants were convicted as charged and were both

sentenced to five years imprisonment on each count, the sentences to run

concurrently. The other three accused persons were acquitted. Aggrieved by the

convictions and sentences, the appellants have lodged appeals to G this court.

When I heard the appeals on 5 March 1993 I immediately alleged them by quashing

the convictions and setting aside the prison sentences. I ordered that they be set free

from prison forthwith unless H they were held for some other lawful cause. I

reserved written reasons which I now try to give herein.

The appellants were said to have broken into a dormitory in which students were

sleeping during the night of 17 August 1992 at Kiboshe Girls Secondary School. They

were found by the Trial Court to I have stolen an assortment of personal belongings

of three

1993 TLR p104

MROSO J

A girls at the school. The value of the stolen property was estimated to amount to a

total of shillings 377,200/=, according to the charge sheet.

To start with, the charge sheet was defective. It is not clear if more than one building

was broken B into. But assuming it was a single building (it does not matter if it was

more than one building), it was a dormitory and hence falls under the definition of a

dwelling house. Now, if a person breaks and enters a building used as a human

dwelling with the intent to commit an offence therein, he commits C the offence of

house breaking, contrary to s 294(1) of the Penal Code. Since the breaking was

committed at night, the offence is more appropriately termed burglary. It was wrong,

therefore, to charge the appellants with breaking into a building with intent to

commit an offence under s 297 of the Penal Code as that section relates to buildings

which are not used for human dwelling.

D Secondly, the charge, even as drafted, was duplex. It charges two offences in one

count namely, breaking into a building with intent to commit an offence therein

contrary to s 297 of the Penal Code and for committing the offence of theft, contrary

to s 265 of the Penal Code. Those are two separate E offences which must be charged

separately in different counts.

Similarly, if a person breaks into a dwelling house and commits the offence, say of

theft, therein he commits two different offences one under s 294 and the other under

s 265, both of the Penal Code. F The Trial Magistrate, therefore, erred in accepting

the wrong charge which was also bad for duplicity, and in passing `omnibus'

sentences. Before I discuss the merits of the appeal, let me give a brief resume of the

evidence that was adduced before the Trial Court, as revealed in the lower court

record.

G During the night of 17 August 1992 someone or some people, using a ladder broke

into and entered the first floor of a school dormitory in which girls were sleeping.

Two suitcases containing an assortment of personal belongings of two girls and a pair

of canvas shoes belonging to another girl were stolen. The victim girls discovered the

theft on the same night but after the thief or thieves had H already left. General

alarm was raised and later a report was made to the Police. Policemen who included

PW4 - Detective Hussein and PW5 - Detective Msanya came to the scene with a

police dog. A search was mounted and in the course of it a suitcase with some

personal belongings of the student Leonara Mkanzabi (PW1) and some personal

belongings (not the suitcase) of Joan Munisi I (PW2) as well as canvas shoes

belonging to student Pamela

1993 TLR p105

MROSO J

Shao (PW3), were found and picked from different places. The appellants were found

together and A taken to their home (apparently they lived in the same homestead

and are half-brothers). When the houses at the homestead were searched a school

girl's skirt was found. It is not clear from the evidence if any of the three students

who testified at the trial identified the skirt as belonging to either B of them. The

skirt was seized and the appellants said that their sister might be able to give an

explanation about the skirt. Otherwise they denied they had anything to do with it.

During the trial a sister of the appellants, one Raphaela Daudi a 12-year-old girl who

was in standard V, gave evidence as DW6. She explained that early on the morning of

the day a search was done in C her room she had picked the skirt on her way to

school. On reaching school she was sent back home to get school fees. She took the

skirt home and left it in her room until it was traced by the police search party. The

appellants were convicted on the basis of the skirt which was found at their D home,

because as stolen property, it was found presumably in their possession only hours

after the theft. The Trial Magistrate had invoked the doctrine of recent possession.

I was unable to find proof from the recorded evidence that the skirt was one of the

things which had E been stolen from the school dormitory. The Trial Magistrate

claimed in her judgment that PW2 Joan Munisi identified it as part of her property.

But the claim is not borne out by the record. Joan indeed identified four skirts in

court among other things as belonging to her but it is by no means clear if the

particular skirt which was found at the home of the appellants was identified by Joan

to be hers. But assuming for the sake of argument that it was, was it found in the

possession of the appellants? F There was conflicting evidence regarding in whose

room the skirts were found. The appellants said the skirts were found in their sister's

room. They were tacitly supported by a prosecution witness PW8 - Lulea Dukaria, a

ten cell leader who was present during the search. On the other hand, G PW7 Leoni

Martin who was the appellants' ten cell leader had merely heard from PW2 that a

skirt had been found `there', presumably meaning at the homestead of the appellants.

He was not present at the time of the search. Furthermore, DW6 - Raphaela

explained how she got the skirt. That story was not at all that unlikely considering

that from the evidence of the police officers - PW4 and PW5 H some of the stolen

items were found dropped at different places along the route used by the thief or

thieves. Was it impossible that the skirt in question was one of the things which had

also been dropped by the fleeing thief/thieves? I

1993 TLR p106

MROSO J

A The two policemen - PW4 and PW5 said in their evidence that as they traced the

path which the thief or thieves had taken they heard noises of people fleeing and

then saw the things which had been dropped along the route. Assuming that some of

those fleeing thieves were these appellants in B court, would they have been so

naïve as to take the single skirt to their home and hide it in one of the rooms even

though there was a likelihood the pursuing police might search the houses along the

route?

The Trial Magistrate appeared to have made substantial reliance on evidence that it

was the police C dog which led the search party to the home of the appellants. She

said -

`. . . I am driven by circumstantial evidence on how the dog led the policemen

to the house of the first and second D accused without going to another house and

on the way some properties were found dropped'.

With respect, our law of evidence has no provision on what a police dog can or

cannot prove in a criminal trial in a law court. It was not advisable or proper

therefore for the Trial Magistrate to place E any reliance on what the police dog may

have done as part of the proof that the appellants were guilty of the offence which

had been charged against them.

The Trial Magistrate also appeared to have convicted the appellants on more suspicion

as she F demonstrated in her statement in the judgment -

`I find the facts of this case on the suspicion of first and second accused to be

the same as the facts in the case of Bachiuba Amerika and Others v Republic (1).'

G But the case cited is no authority that suspicion can be a basis for convicting a

person accused of committing a crime. The law is that no amount of suspicion,

however strong, can found a conviction.

All in all, the evidence which was adduced by the prosecution was inadequate to

prove the guilt of the H appellants. The appellants ought to have been acquitted. It is

noteworthy that even in the course of hearing this appeal the Republic did not seek to

support the conviction. It was for the above reasons that I allowed the appeal and the

orders that I did.

1993 TLR p107

A