Manazo Mandundu and Another v Republic 1990 TLR 92 (CA)

 

MANAZO MANDUNDU AND ANOTHER v REPUBLIC. 1990 TLR 92 (CA)

Court Court of Appeal of Tanzania - Dar es Salaam

Judge Makame JJA, Omar JJA and Mfalila JJA

C 10 August, 1990

Flynote

Criminal law - Murder - Doctrine of recent possession - Whether can ground a conviction of murder.

Criminal law - Murder - Malice aforethought - Killing as to effect stealing - Whether malice aforethought may be inferred.

-Headnote

The appellants, charged with and convicted of the offence of murder, appealed against both conviction and E sentence. The trial court based its conviction on the fact that the appellants were found in possession of stolen property a few hours after the watchman of a shop was killed. And, it was established that the property was stolen from the shop which the watchman was guarding. When arrested one of the appellants asked to be pardoned and F the other said matters were becoming serious and later cried at the CCM office. Counsel for appellants charged on appeal that recent possession of stolen property could not alone, in the circumstances, ground a conviction of murder.  

Held: (i) The possession was very recent and that this fact cannot be ignored. The distance from the burgled shop to Chigugu is 28 miles and it takes 5 hours to travel by taking a short cut path or road. To be found at 10.00 am. the following day having already arrived at Chigugu means that there was no time lost by the possessors of H goods in running away from the scene of crime; (ii) in the circumstances it was not wrong to conclude that the appellants were also responsible for killing the deceased, and because we are satisfied that the killing was so as to effect the stealing we are of the view that it was quite proper to infer malice aforethought; I (iii) this is a fit case for invoking the doctrine of recent possession to support not only the shop breaking and theft but also the murder.

Case Information

Appeal dismissed. A

Jadeja, for the appellants

Kamba, for the respondent.

[zJDz]Judgment

Omar, Makame and Mfalila, JJ.A.: The two appellants were charged with and convicted of the offence of B murder contrary to section 196 of the Penal Code. The prosecution led evidence to the effect that on the night of 14th June, 1988 at Majengo "C" area in Nachingwea District the shop of P.W. 2 Abbas Ally Maji was burgled and its watchman was killed. The following day at about C 10 am. at Chigudu village the stolen goods were found in the possession of the two appellants who were trying to sell them to a shop owner P.W.3 Mohamed Bonamali. P.W.4 Rashidi Ally Rashidi was called from his house by his father-in-law P.W.3 to go and assist in this transaction. When P.W.4 talked to the two appellants and inspected the D goods he suspected that they were stolen articles and so he put the appellants under arrest. Eventually the two suspects were sent to CCM Office where the Village chairman opened the bag which contained the goods and inspected them. They were the following goods: 34 pairs of Khanga, 14 pairs of vitenge, cloth materials for gowns, bicycle tubes and tyres, soap, underwear and shoes, also a bicycle on which the bag was put. From there the appellants were sent to Ndanda Police Station and thence to Nachingwea where they were charged with this offence.  

The owner of the burgled shop was called to the Police Station and he identified the things as some of his shop goods stolen the previous night. First appellant in his defence denied stealing any goods from any shop. He was at Chigugu bus stand with the second appellant who he had met at Ndomondo Village when he was arrested with him. First appellant stated G further that he was running from the police who were after him because of his escape from them while they were taking him to the Court on a charge of possessing stolen properly. The second appellant Selemeni also denied any involvement in the goods claimed to be stolen. He explained his journey to Chigugu and how he met first appellant on the way, and that they were arrested when they were waiting H for the bus. Mr. Jadeja, learned Counsel for the two appellants, quoted section 122 Evidence Act 1967 and compared it with section 114 Indian Evidence Act both sections being similar in expression and content: The Court may infer the existence of any fact it thinks likely to have happened regard being had to the common course of natural events human conduct and public and private business, in their relation to the facts of the particular case. B Mr. Jadeja said that we must look for other circumstances as well besides recent possession, it is better, he said to err on the side of acquittal than on the side of conviction. 

He ended by saying that it was difficult to feel that the appellants had been part of the breaking in and murder. Mr. Kamba, learned State Attorney, supported the conviction of both appellants based on circumstantial evidence. C Both appellants were identified selling the stolen goods and their reaction to the arrest by P.W.4 had to be taken into account; one asked to be pardoned and the other, the second appellant Selemani, said matters were becoming D serious. Selemani was the one who later cried at the CCM Office. Mr. Jadeja in his reply was emphatic that further material evidence was needed to uphold the conviction of murder. We have considered the arguments of Mr. Jadeja and are of the view that the possession was very recent, and that E this fact cannot be ignored. The distance from the burgled shop to Chigugu is 28 miles and it takes 5 houses to travel by taking a short cut path or road. To be found at 10 a.m. the following day having already arrived at Chigugu means that there was no time lost by the possessors of goods in running away from the scene of crime. The F section of the Evidence Act which was quoted to assist us in our deliberations states that the court may infer the existence of any fact which it may think likely to have happened but we have to take into account: the common course of natural events, human conduct and public and private business in their relation to the facts of this case  under consideration.  

Do the facts adduced by the prosecution in any way most accord with the conclusion that the two have committed both burglary and murder? The two appellants were found 28 miles away from the scene of burglary at about 10 a.m. just a few hours after the event and it is in evidence that it takes 5 hours to reach there on H foot. The bag with articles in it was put on a bicycle which was then easy to push. Unlike Mr. Jadeja, we think that the decision in Rex v Bakari Abdulla (1949) 16 E.A.C.A. 84, relied on by Maina, J., was a sound one. Applied to our case, there are the circumstances we have already touched on, I including the extreme proximity in time, as well as the second appellant's inconsistence in Court and the Caution Statement; the second appellant's refraining from giving an explanation to P.W.4, and their joint failure to give village Chairman the version they later gave to the trial court. We are not convinced that, in the A circumstances it was wrong to conclude that the appellants were also responsible for killing the deceased, and because we are satisfied that the killing was so as to effect the stealing we are of the view that it was quite proper to infer malice aforethought. We have no quarrel with the decision in Sanwat Khan v State of Rajasthan A.I.R. B 1959 S.C. 54. 

We agree that no hard and fast rules can be drawn. In Khan's case, the Supreme Court faulted the High Court decision because the said High Court had rejected virtually all the bases the learned Sessions Judge had relied on and used only the solitary circumstance of the recovery of only two items the silver tashak and the gold C kanthi out of what must have been a large assortment of property belonging to the wealthy deceased from the boxes and almirahs. Further we discern two other features distinguishing the Khan case from the present one: In Khan the appellant was found with the property some eighteen days after the killing, unlike in our present case where the discovery was within a few hours. Secondly in Khan's case the two victims were killed in a temple where they were living and to which presumably any people could just come and go, so that conceivably the thieves might have acted after the E killing by other people. In our case the property was removed late at night, sometime after 11 p.m. going by P.W.2 Manji's evidence, and no one other than the deceased Andrea was supposed to be there. We therefore agree with the learned trial judge that this is a fit case for invoking the doctrine of recent possession to support not only the shop breaking and theft but also the murder. We find the appellants properly convicted of F murder and we dismiss their appeals.

Appeal dismissed.

1990 TLR p96

A