Mohamedali Husseinbhai v. R., Crim. App. 541-D-69, 27/8/69, Georges C. J.

Mohamedali Husseinbhai v. R., Crim. App. 541-D-69, 27/8/69, Georges C. J.

The appellant, then the second accused, was charged with one Mhendi Hasham with the offence of stealing goods in transit c/s 269(c) and 265 of the Penal Code. It was alleged that they had stolen 7 bales of khangas from Gate No. 2, Tanzania shed, a place of deposit. The second accused was discharged at the close of the case for the prosecution, the learned magistrate accepting that he had no case to answer. The appellant was convicted and sentenced to 18 months imprisonment. There was evidence that 7 bales of khangas have been stolen from the shed on the night of the 10^th /11^th of December, 1968. The khangas had special marks and the owners did not distribute the remainder while inquiries were pending. As a result of information received the police went to the shop of Nasarali Jamal at Singida. There they found 132 pair of the stolen khang. Nasarali’s wife informed the police that she thought that the khangas had been sent by Mhendi Hasham, the first accused, on 2^nd January, 1969 the police called on Hasham and found in his shop 136 pairs of the stolen khangas. He told the police that he had dispatched the khangas to Nazarali at Singida and that he had also sold identical khangas to Abdul Malik Shariff of Korogwe. The police recovered 244 pairs from that shop on 3^rd January. Hasham told the police that he had purchased the khanga from the appellant. On receiving this information the police went with Hasham to the appellant’s shop nearby and found 2 pairs of the stolen khangas. It is not clear fro his evidence whether Hasham repeated I the shop in the presence of eh appellant the accusation that it was the appellant who had sold him the khanga. From the shop both suspects ere taken to the police station. They were questioned. Hasham made a statement, not particularly full of details, setting out that he had purchased the khangas from the appellant on 16. 12. 68. The appellant stated that he would say nothing then, but would make a statement in Court. At the hearing he testified that he had bought the khangas from Hasham on 28^th January, 1968. he added that he had heard the 1^st accused i.e. Hasham – say that he had bought the khanga from him, the appellant, and had replied that that was not so and that it was Hasham who had sold the two pairs to him. Several grounds of appeal have been advanced challenging the appellant’s conviction: (a) that the learned magistrate had relied on the statement of the 1^st accused to convict the appellant and that that statement was not evidence against the appellant; (b) that in any event that statement was the statement of an accomplice and was uncorroborated since the alleged failure of the appellant to deny it was not corroboration. In particular the magistrate should not have drawn an inference adverse to the appellant from his failure to make a statement to the police.

Held: (1) “In the first place I do not agree that the learned magistrate used the statement of the 1^st accused as evidence against the appellant. It is true that nowhere in his judgment does he state specifically that he has not done so, but I think if fair to say that the judgment read as a whole makes this clear ….. I agree that the statement of the 1^st accused was not evidence against the appellant. Even if it had been a confession, which it was not, s. 33 of the Evidence Act would make it inadmissible. The leaned magistrate did not, however, use it as evidence against the appellant and he cannot be successfully criticized on that ground.”

(2) “Kesaria addressed me at length in a fully developed argument on the question as to how far silence under accusation can be held to be corroborative. As I have indicated, I am not at all satisfied that this argument is relevant in the circumstance under consideration but out of deference to the arguments of counsel I shall examine them …. Mr. Kasaria referred to number of English authorities. In R. v. Marsh (1925) 19 Cr. App. Rep. 27 the Court of Criminal Appeal held that the mere silence of an accused person when charged with a sexual offence was not corroboration of the evidence of the prosecutrix. In R v. Job Whitehead (1925) 21 Cr. App. Rep. 23 the appellant was charged with unlawful carnal knowledge of a girl under 16. The trial judge directed the jury that it was for them to decide whether the appellant’s reply that he did not want to say anything then when served with the summons in the case was corroboration. It was held that this was misdirection. On the other hand in a case not cited by counsel R. v. Marx Peigambaum (1919) 14 Cr. App. Re. 1 the Court of Criminal Appeal held that non denial of an accomplice’s in criminal statement could be corroboration. In that case three boys were caught stealing sacks o f horse fodder. They gave statements incriminating the appellant as the person inciting them a policeman visited his shop and told him that he would arrest him on the ground that he was an accessory. The policeman told him what the boys had said and later read over their statements to him. On neither occasion did he make any reply. The trial judge directed the jury that they could consider whether the appellant’s silence was not corroboration of the story given by the three boys. The Court of Criminal Appeal held that in the circumstances of the case it would have been a misdirection to tell the jury that there was no corroboration of the testimony given by the boys…. The approach taken in Feigambaum appears to me to be quite consistent with common sense and in no way prejudicial to the accused. At no stage should any pressure be brought upon an accused person to make any admission of his quilt. In that sense he must always be warned that he is to make a statement only if he wishes to. This, however, should not afford a reason for failing to give an explanation when enquiries are in progress if an innocent explanation is possible. At the stage of the trial when an accused is warned at the close of the preliminary enquiry or called upon to answer at the close of the case for the prosecution other considerations apply. The stage of enquiry is over. Adversary procedures to establish guilt are in progress. The accused may then be advised to adopt a particular course and his alliance should not be held to corroborate anything. It should be noted, however, that even at the trial failure by an accused to give the innocent explanation for patently incrimination circumstances may well be held against him if the explanation is one which is peculiarly within his own knowledge. Had the circumstances here been such that the issue was one as to whether there was corroboration of the first accused’s statement in the appellant’s failure to deny it I would have held that there was. As I said, however, this is not, in my view, the issue here”. (3) Appeal dismissed.