Bartholomew Selemani and Others vs Republic (HC Criminal Appeal No. 307 of 1972; HC Criminal Appeal No. 308 of 1972; High Court Criminal Appeals No. 306 of 1972) [1973] TZHC 161 (4 April 1973)

IN THE HIGH C0UR TANZA1A AT ITIANZA HIGH COURT CRflUNAJ APPEALS Nos. 306, 307 AND 33 OF 1972 Original Criminal Case ITo. 299 of 1972 of the District Court of Geita District at Geita Before A. Tegamaisho, Esq., D. H. BARTHOLIEJ SElANI AED OTEiTRS ... ., . ........APPJLARTS versus THE, REFJIC .............. . . ....... RESPONDITT CHARGE: Robbery with violence c/es. 285 and 286 of the Penal Code. JtJDGMSNT JONATHAR, J.: The three appellants whose petitions are consolidated were charged jointly with four others with robbery with violence contrar to sections 285 and 286 of the Penal Code. The four others were acquitted apparently as there was very little evidence against them, but the appellants were convicted on the chare and comnitted to this court f or sentencing under the provisions of S. 5A El) of the Criminal Procedure Code. That was before the caning into force of the Minimum Sentences Act 1972. The charge alleged that on the night of the 19th May, 1971 at about 1.00 otclock at Buwimba, Geita District the accused jointly stole various things (duly itemised) altogether valued at Shs. 4 1 000/_ being property of one Noah Peter Elele and that in doing so they used actual violence to one Elizabeth Kaji. Elizabeth is the wife of Noah, the complainant. According to the complainant (P.vc1) and his wife (P.W.2) they owned a shop next to which was their bedroom o On the material night they were awakened by a heavy bang on the door. No sooner had they rushed and started to push it from inside to oppose an invading force than they heard the sound of a gun shot which piercdd through the door, when they abandoned the opposition and the invaders came in. There was a lamp bunrLng and they saw four men inside the room while others waited outside. They recognised the appellants as being among the foursciuie. As the first appellant subdued them to silence at gun point the accused persons collected various things which were handy in the room, including a gun with a cover and a watch of the complainant and demanded money P,W.2 brought out a box containing a sum of about Slis. 200/- and handed it to the gauisters. Not content with that they beat her up for more mbiiey and she broughtorth a porch containing She. 90/.- which she handed to thea. She then obeyed a further order to produce keys to enter the shop. There they took a bicycle and shop goods including vitengenl, snirts, soap bars, torches, bicycle spokes and about 30 rounds of ammunition. Their expedition accomplished ) they and those outside left with their loot. Shortly afteiwas P.W.1 and .W,2 resumed the alarm and many neighbours answered it and helped in tracing the gangsters. The complainant could not join the searching party as he had had a leg amputated and could only walk on crutches. Save in so far as they relate to identificat- ion of the ciilprits the facts above summarized are not in dispute. There is then the evidence of John Magwisha (P. 1:7.3) who said neighbours of the complainant called at his house on the morning following the night of the incident saying they were looldng for the robbers. He joined them as they. continued the search being guided by bicycle tyre marks which were clear as had been some showers. Eventually they saw a man called James emerge from the who upon seeing them ran away. They gave chase but he disappeared. They sur- rounded the bush and as they were searching it they found the 1st and 2nd appellants in hiding there. Confronted by the crowd these appeUans said the• complainamtts property had been taken by their (appellantst) colleaes, where- upon they arrested and handed them to the police. The trial magistrate also heard evidence from Shija o,/o Kuiwa (p,w.) and Bertha Kasinda (P.w.7) respectively the wives of Kikundi (3rd accused) and ; Simola (5th accused). However, he does not appeai to have compiled with' the provisions of S. 130 (2) of the Evidence Act, 1967 to which Mr. Meela l the Senior State Attorney d±ew my attention at the hearing of this appeal. Sub- Section (2) of section 130 of the Act made it mandatory for the court to explain to P.V7.5 and P.W.7 the provisions of sub-section (i) of the section and to record the fact of this as having been compiled with, befare proceeding to hear their evidence. Sub-section (1) of section 130 reads,

•: •. 1 (i) Vkere a person charged with an offence is the husband or the wife of another person, such last nned person shall be a competent but not a compellable witness on behalf of the prosecution: Two exooptions to theo provisions are then set out butP.7.5 and PT7 do not come under such exceptions. Now, it seoms to me that thn niaistrate not having recorded a compIimice with the provisions of section 130 (2), the evidence of P.W,5 and P.7.7 became inadmissible that is, inadmissible not only in relation to thoji accused husbands but also as regards the other co- accused, among whom were the appellants. This may seem a somewhat startling construction inasmuch as the wife of a person who could be, but is not, charged jointly with another can be compelled to testify for the prosecution against that other person, while she cannot be compelled to give evidence against this person if he happened to be charged jointly with her husband. The rationale for the distinction is not that ciear, but that appears to me as the only meaning to be given to the sub-section. If it were otherwise it would not be hard to envisage a situation in which the wife of an accused person after electing not to give evidence for the prosecution as she is entitled to undr the sub-section, is called upon sooner at lc-r to give evidence for the pro- secution in relation to her husband! s co-accused. This would be giving with one hand and taPing back with the other, and she could not be said to have enjoyed the privilege the sub-section otherwise gives her0 This could not have been intended, and, to my mind, once the wife of an accused person has elected not to give evidence for the prosecution she cannot'be called upon to testify for the prosecution in relation to her husband? s co-accused. It may be argued that this may result in unduly sheltering such co-accused to the detriment of the justice of the case. However, this need not happen and it might be noted that, with some inquiry during the investigations the prosecut- ion can gauge if the wife of a person whom it is proposed to charge jointly with others will agree to give evidence for the prosecution of her husband and thus to decide whether to charge him separately from the others I would accordingly hold that the evidence of PIIW.5 und P.7.7 wee inadmissible, riot only in relation to their respective husbands but also as regards the co-accused, and such evidence is excluded from the consideration of these appeals, save in so far as it may have contributed to the convictions that were returned. The evidence of P.V.6, the daughter of the accused Kikundi showed that on the morning preceding the night of the robbery the 2nd appellant who is her cousin came to their house accompanied by the 1st appellant and the man called James. There she heard them ak her father, Kikundi if he would joint them in a stealing venture atBukwimba. It will be noted this is the village whore the complainont lived. However, Kikundi declined the invitauion and eventually the trio left. On the following morning James come back, but he had not been there long when they heard noises by the searching party and when Jane-s ran away. A few days later one Chose, a momber of the Tanu Youth 1eagio called her to a bush not fr fran her house where she hv many things hidden. Most of them answeredthe description given by P.W.l and P.W.2 of the things stolen from the shop Among them were a gun with a cover and 32 rounds of ermuaa*tion. The gun ap?ears to have been taken away by Chesa and was not produced as 071 exhibit, but P.W.l and P.W.2 sean to have been clear that the gun cover before the court was the cover in wtich they had kept the gun. Also included in the lot were a pair of white rubber shoes and sandals respectively put on by the 1st and 2nd appellants when they had come to her hanse accompanied by James. Both during the investigations and at the trialthese two appellants refused to put on these footwears to see if they fitted A curious feature in the proceedings is the absence of any explanation f or the failure to get CheOc to testify if and how he came by the things hidden in the bush. I would, however, draw no inferences from such failure. In his defence on oath the 3rd appellant denied any connection with the robbery while the other appellants testified they were away on safari on the material night and could not, therefore, have taken part in the ro'obery. To implicate the NO appellant there was oiiy the evidence of P.W,l UKAIW12 both of whom did not otherwise Imow him. There was light in the bedroom of the complainant by which it was possible to identify the invaders but in LW view, having regard to the terrifying atmosphere to which the two witnoswere subjected it would be unsafe to convict merely on such evidence, espCcially so as no identification parade was arranged, as might have been done, The 3rd appellant should accordingly have been given the benefit of doubt. His appeal is allowed and tile sentence sot aside. He should be released forthwith

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-3- if he is not otherwise lovfully held. The common alibi of the other appellants was that, on the material niit they were away at Kahema where they were put up by one Salvatory until the next morning when they set out to return home. They got out of the bus in which they were travelling and as they were wal1thg up the remoining distance they were confronted by a mob which beat them up and handed them over to the police. Their account was supported by the evidence of Salvatoxy and a younger brother of the 2nd appellant, It was not clear, however, how the witnesses could be sure about the material date as being 19th May, while Salvatory admitted being in the sane prison cell with the appellants only the previous day. The evidenco against these appellants was strong. Not only were they identified by the complainant and his wife as being anong the robbers but there was the evidence of P.VJ.6 that she heard them speaking of an intention to steal at Bukwimba, and that of P.M. 3 who said they found the appellants hiding in the bush, while there were indications that the footwears found among some of the stolen things were those of the appel1an±s The trial magistrate believed such evidence and reject- ed the defence of alibi. On the evidence I cannot say he was wrong, and I an clear that he would have come to the some conclusion had he not acted on the inadmissible evidence of P.W I 5 and P.W,7. These two appeals are accordingly dismissed. P.M. Jonathan 29th March, 1973. JUDGE 4/4/73 Coran: P.M. Jonathan, J. Meela, S.S.A. for Republic Appellants in person. Judnent delivered. P.M. Jonathan 4th April, 1973. JUDGE Meela: I would ask they be considered as 1st offenders. 1st a2pe11ant in mitigation: I did not commit the offence. Nothing was found on me. I was arrested in May 1971. I have been in remand f or 24 months. d appellant: I did not cummit the offence. I have a wife and four young so children. I have spent nearly 2 :ears it remand. Meela: I would ask that, the value of the things recovered not being known as against the value of those not recovered, this court should order restitution to complainant of the things recovered. The complainant may subsequently seek civil remedy against 419 SiNTiNCE: The offence falls under the Minimum Sentences Act, 1972 for which the minimum sentence is 7 years' imprisonment. Accordingly the 1st and 2nd appellants are each sentenced to 7 years' imprisonment. P.M. Jonathan 4th April, 1973 , JUDGE As it is not possible to determine the compensation to be paid without cling evidence, it is ordered the complainant be summoned before this court on a date to be fixed by the District Registrar in order to assess the value of the things not recovered and to proceed to make a compensation order-. P.M. Jonathan 4th April, 1 973-

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