Yusufu Salehe v. R., Crim. App. 717-D-69, 31/10/69, Georges C. J.

Yusufu Salehe v. R., Crim. App. 717-D-69, 31/10/69, Georges C. J.

The appellant in this case was jointly charged with Abdu Mohamed with offence of being in possession of house breaking implements by night without lawful excuse c/s 298(c) of the Penal Code. It was alleged that they were found with the implements on 18^th May 1969 at Mnazi Moja. Abdu was in possession of a bunch of keys and a piece of timber shaped like a wedge and the appellant with a single key and a similar piece of timber. They were both convicted. Two policemen testified that on the night of 18^th May they were on duty at Mnazi Moja when they saw the accused persons coming towards them in the park. The policemen were suspicious and searched them and found on each of them the articles already mentioned on the charge. Neither accused gave any explanation for having these implements with him. The policemen explained that the wedge could be pushed in between the frame of a door ad the door itself to make a space to enable the door to be levered open, while the keys could be used to open such doors as they might happen to fit. When called upon by the magistrate in terms of section 206 of the Criminal Procedure Code both said that they had nothing to say and that they had no witness to call.

            Held: (1) “On appeal it was urged that the trial was itself a nullity because the two accused persons should not have been jointly charged. Section 137 of the Criminal Procedure Code states that the following persons may be tried together on one charge or information, namely: - (1) persons accused of the same offence committed in the course of the same transaction; (2) person accused of an offence and persons accused of aiding and abetting them: and (3) persons accused of different offences committed in the course o the same transaction. There are two other categories of persons laid down in the section which are not relevant in the circumstances of this case. Mr. Shukla argued that the two accused persons in this case did not fall into any of the three categories. They clearly did not fall within category (2). Since each accused person was found with separate implements on him it could not be said that they were accused of the same offence committed in the course of the same transaction, so that they did not fall within category. (1). It is my view, however, tat they fell within the third category – that is persons accused of different offences committed in the course of the same transaction … it is clear ….. that the two persons ere together and  that they answered together, giving similar explanation for their presence in the park. On this I think one could justifiably find that he two accused persons were engaged in the course of the same transaction. The fact that similar housebreaking implements were found on them would help to fortify this inference, particularly when it is borne in mind that hey gave no evidence in denial or in explanation.” (2) “Mr. Shukla also argued that since the keys and the wedge were not in their very nature housebreaking implements, proof of an intention to use them as such was needed. He contended that no such intention had been proved in this case ….. I agree with the proposition that where an instrument is capable f being used for house breaking although ordinarily it can also be used for lawful purposes, as for example, the house door keys in this case

And the wedges of wood which could be used for keeping a door open, one can only be found guilty of being in possession of housebreaking implements within the meaning of the Code if from the circumstances of possession an inference can be drawn that there was an intention to use the implements for housebreaking. Whether or not such an inference can be drawn in a question of a fact …. I see no reason for differing from the Senior Magistrate who quite clearly thought that the circumstances under which the appellant was found in possession of the implements indicated an intention to use them for the purpose of housebreaking.” (3) “Finally Mr. Shukla urged that the Senior Magistrate should have explained to the appellant that the burden of giving an explanation for his possession of the articles was on him and that he could be convicted if he failed to do so. He quoted a case dealing with the obligation of the Court to explain fully to the accused person the ingredients of an offence before accepting a plea o guilty. I do not think the authority is relevant in the circumstance of this case. Section 206 of the Criminal Procedure Code sets out what the magistrate out to do. At the close of the case for the prosecution. The magistrate must explain again to the accused the nature of the charge and inform him of his right to give evidence on oath in the witness box, his liability to cross examination if he does so and of his right to make a statement not on oath from the dock. He must also inform the accused of his right to call any witnesses if he wishes to do so. It may be very dangerous to depart from the prescribed procedure laid down in this section and to attempt to explain to an accused person matters dealing with the burden of proof. There is a strong possibility that it may be argued then that the magistrate was in some way exercising pressure on the accused to induce him to give evidence when he did not wish to do so. In the course of giving evidence the accused may well strengthen weaknesses which may exist in the case for the prosecution. The charge in this case was being found by night in possession of housebreaking implements without lawful excuse. If this was explained to the accused and if he was told that he had the right to give evidence eon oath or to make a statement from the dock if he wished then it must have been obvious to him that he could take advantage of that opportunity to set up any lawful excuse which he might wish to give. I do not think his failure to do so can be blamed on the magistrate.” Appeal dismissed.