MESCO LUCAS v REPUBLIC 1985 TLR 193 (HC)

MESCO LUCAS v REPUBLIC 1985 TLR 193 (HC)

Court High Court of Tanzania - Tanga

Judge Maina J

May 11, 1983

CRIMINAL APPEAL 4 OF 1981

Flynote

Criminal Practice and Procedure - Alternative verdicts - Accused charged with F

housebreaking but convicted of malicious damage to property - Whether conviction

is proper - Criminal Procedure Code, ss. 181 - 188.

-Headnote

The two appellants were charged with housebreaking and stealing a radio cassette but

G they were only convicted of stealing the radio; the first accused, however, was also

convicted of malicious damage to property. The convictions were based on

circumstantial evidence. The finding for malicious damage to property was based

upon a H finding that the first accused was a resident of the house from where the

radio was stolen and he stole it without having to break in or out of the house, but he

intentionally damaged the rear door to make it appear that someone else had broken

the door and stolen the radio.

Held: The powers of convicting a person for an offence other than the one charged

are I laid down by statute and they do not include a power to

1985 TLR p194

MAINA J

return a verdict of malicious damage to property for a charge of housebreaking; A

Case Information

Order accordingly.

Case referred to:

1. R. v Anyandwile Mwaikusa [1968] H.C.D. 270 B

A.T. Akaro, for the Republic.

Judgment

Maina, J.: These two appeals are consolidated. The two appellants, C Hamisi Ally

and Mesco Lucas, who I shall refer to respectively as the first and second accused,

were charged at the Tanga District Court of two counts: house breaking and stealing.

The learned trial magistrate acquitted them of house breaking but he convicted them

of stealing and sentenced each of the accused to three years imprisonment. The D

first accused was, in addition, convicted of malicious damage to property and he was

sentenced to six months imprisonment, to be served concurrently with the sentence

for the second count.

The evidence adduced by the prosecution showed that the first accused was staying at

E the house belonging to PW.1 Philip Kitenge. On 17.6.1980, PW.1 Philip Kitenge

left the first accused at the house and there was a Radio which was Government

property which PW 1 Kitenge was using in the course of his duties as a Ward

education coordinator. In the evening when Kitenge returned to his house the Radio

cassette was not there. The first accused too was missing. Kitenge found out that the

rear door of his F house was broken. There was further evidence that on the

morning of 17.6.80 - the day the Radio Cassette was stolen, PW3 Idi met the two

appellants on a bicycle and on that bicycle there was a bundle wrapped in a sack.

About two days later, on G 19.6.1980, PW4 Hassan met the second accused carrying

a bundle wrapped in a sack and the witness saw the second accused putting gave a

Radio Cassette to the second accused. Then the witness went away leaving the

appellants together.

The appellants, in their memoranda of appeal have repeated the defence which they

gave H at their trial. The evidence against them was wholly circumstantial and it

was considered carefully by the learned trial Magistrate. There could be no doubt

that the first accused disappeared from the complainant's house and that was on the

morning of 17.6.1980 when the theft was committed. The fact that the first accused

was seen riding a bicycle that morning and carrying a bundle which later was found

to contain the stolen I Radio Cassette leaves no reasonable doubt that

1985 TLR p195

MAINA J

bundle in a house which the witness knew had been abandoned for a long time. This

A made PW4 Hassan suspicious. He interrogated the second accused who claimed

that he saw a Radio Cassette. The second accused was arrested and finally PW1

Philip Kitenge identified the Radio Cassette as the one stolen from his house.

The first accused denied the charge and also denied that he ever travelled with the B

second accused on a bicycle on the morning of 17.6.80. The second accused said that

he received the radio - cassette from the first accused. He called a witness, DW3

Daudi who claimed that he saw the first and second accused on 17.6.1980 and that the

first C accused doubt the first accused was the thief. There was absolutely no reason

to disbelieve PW3 Idi who met the first accused riding that bicycle. As far as the

second accused is concerned, apart from the evidence of PW.3 Idi, there is the

evidence of PW4 Hassan who saw the second accused only two days after the theft,

carrying the stolen Radio cassette in a sack. The evidence by DW3 Daudi was

unbelievable. There D was no reason for the first accused to pick a radio cassette

form the ground and hand it over to the second accused.

On the evidence on record, there could be no doubt that the two appellants were

properly convicted of stealing the Radio cassette and since the stolen property

belonged E to the Government, the sentence of three years imprisonment was the

minimum under the law.

The learned district magistrate held that the first accused had intentionally damaged

the rear door of the complainant to fake a breaking, and so he convicted the first

accused of malicious damage to property. I would agree that since the first accused

was resident of F that house, he stole the Radio Cassette without having to break in

or out of the house. It is clear that he pushed the rear door with some force and

caused damage to it so as to make it appear that someone else had broken the door

and stolen the radio-cassette. But the point is whether there was any justification for

the trial Court to substitute a G conviction for malicious damage to property when

the charge was housebreaking. The powers of returning a conviction for an offence

other than that charged are expressly laid down in section 181 of the Criminal

Procedure Code. It certainly cannot be said that any of these section empowers a

Court to substitute a conviction for malicious damage H for housebreaking. In R. v

Anyalwile s/o Mwaikusa [1968] H.C.D. No.270 the accused was charged with house

breaking but the Court convicted him of malicious

damage. In quashing the conviction, Georges, C.J. (as he then was) said:

There are no specific provisions empowering a Court to convict under section

326 (1) where a I charge has been laid under Section

1985 TLR p196

294 (1). It cannot be said either that section 294 (1) creates an offence consisting of A

several particulars, a combination of some only of which constitutes the offence

created under Section 326 (1).

With respect, I agree that the Court cannot convict a person of malicious damage to

B property when the charge is one of housebreaking because there are no specific

provisions in the Criminal Procedure Code giving the Court powers to do that. I

would therefore, for these reasons quash the conviction for malicious damage and the

sentence of six months imprisonment imposed on the first accused is set aside. The

appeals are, C save as indicated above, dismissed.

D Order accordingly.

1985 TLR p196

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