Mushi, J.: No. C6700 P.C. General Paul and No. C.6237 P.C. Edwin, who are respectively G 2nd and 1st appellant, were charged of and convicted with the offence of stealing by persons employed in Public service c/s 270 and 265 of the Penal Code and were each sentenced to five years imprisonment. They are appealing against such conviction and sentences. H
The two appellants were police officers and at the material time they were attached to Field Force Unit at Songea and were assigned garage work where they worked as mechanics. On the day in question PW1 - B.3261 CPL Maurus and PW2 - B.4053 PC Constantini, who are also F.F.U. Policemen, were just in an I evening walk when at about 8.00 p.m. they saw a bedford vehicle parked on the main road near the F.F.U. campus. Soon P.C. Edwin - 1st appellant approached the parked
vehicle and spoke with the driver briefly and walked across the road to certain huts. Immediately after that the A 2nd appellant, PC General came towards the vehicle carrying something. PW1 and PW2 were suspicious about the thing which the 2nd appellant was carrying. At that time the vehicle had been reversed and it was facing B Songea Town. 2nd appellant was putting the long thing in the vehicle. PW1 and PW2 approached the vehicle and enquired from 2nd appellant as to what he was putting in the vehicle and he replied nothing. PW1 and PW2 recognized the thing which was being loaded into the vehicle as a windscreen. When the 2nd appellant was C further questioned he said that the windscreen belonged to the 1st appellant PC Edwin and that he was helping him to sell and would share the proceeds. As the conversation went on, the 1st appellant went nearer the scene and asked why he was being mentioned. The matter was reported to the police and the screen was also taken to the police. On the following morning, it was discovered that the screen had been removed from an Isuzu vehicle D belonging to UMITA vehicle which had been entrusted to F.F.U. at Songea and which was parked in the F.F.U. compound. There was evidence which conclusively established that the windscreen had been removed from the Isuzu vehicle parked at F.F.U.
1st appellant - Edwin denied the offence. He told the court that on the day in question and at the material time he E had gone to buy soap in a shop across the road. On his way back he saw a parked vehicle and near it he saw PW1 and PW2. As he saw nothing to warrant his stay he went home. On the following morning he was called to make a statement in connection with the windscreen. As the 1st appellant made unsworn statement, the F prosecution could not examine him. The trial magistrate however conducted an extensive cross-examination. I shall refer to this aspect of evidence later in my judgment.
The 2nd appellant, PC General, made an unsworn statement in which he stated that on the material date, he G found 1st appellant together with the driver of the motor vehicle, PW5 Hassan Omari, talking. As he (2nd appellant) was passing he was requested by 1st appellant to help to load something into the lorry. One of the items loaded was a windscreen. As they were loading PW1 and PW2 went nearer the vehicle. The 1st H appellant ran away. PW1 and PW2 then asked the 2nd appellant about the windscreen which he said he had just helped to load it. The 2nd appellant said that he was then ordered to take the windscreen to the police. The 1st appellant later appeared but he was uncooperative. The 2nd appellant stated that he was threatened by the I 1st appellant because he had mentioned him. As the 1st appellant threatened to kill the 2nd appellant, he went to sleep at the Quarter Guard. On this aspect, 2nd
appellant's statement is supported by the evidence of DW3 A.5967 Sgt. Alfred Banda who told the Court that A the 2nd appellant went to complain to him that 1st appellant had threatened to kill him because he had mentioned him in connection with the theft of windscreen. DW.3 gave a bed to 2nd appellant who slept at the place till B morning. There is also the evidence of DW.2 - Mwinyijuma Ramadhani. This DW2 told the court that he had been at the 2nd appellant house till about 7.00 p.m. when he left with 2nd appellant for the purposes of going for a drink. On the way they saw a bedford vehicle parked. The 1st appellant called the 2nd appellant to the place C where the vehicle was parked. DW 2 went on his way and he never saw 2nd appellant again that night. Lastly I wish to refer to the evidence of PW5 Hassan Omari. This PW5 was the driver of the vehicle in question. PW5 told the Court that when he reached near F.F.U. his vehicle heated up and required some water. He D reversed with the intention of going back to the town, but before he left, 2nd appellant approached him with a request to help him carry a windscreen as he had waited for transport without success. PW5 agreed and waited for 2nd appellant to bring the windscreen. When the windscreen was brought, two people approached the vehicle and questioned the 2nd appellant about the windscreen. PW5 left the place but he denied to have seen1st E appellant at the scene, although 1st appellant says he went to the scene.
In their memorandum of appeal, just like in their defence, each is alleging that the other is the one who stole the windscreen. The question for determination before this court as was in the lower court is whether the appellants F are jointly guilty as charged or not. As for the 2nd appellant, he was caught loading the windscreen into the lorry. There is evidence of PW1 and PW2 whose testimony was believed by the trial court to the effect that 2nd appellant told them he was selling the windscreen on behalf of 1st appellant and they would share the proceeds. G If the 2nd appellant was given the windscreen by the 1st appellant as he claimed, both of them being mechanics, the 2nd appellant should have known that the 1st appellant could not own such an article. The 2nd appellant should have suspected the 1st appellant particularly that the article was being loaded at night time. PW1 and PW2 did not see any other load which was loaded into the vehicle as alleged by the 2nd appellant. I H do not accept that the 2nd appellant could just be ordered by 1st appellant to carry the windscreen at the time, when they just met accidentally as alleged by the 2nd appellant. The 2nd appellant carried the windscreen as he had an interest in the matter. As for the 1st appellant, immediately after the 2nd appellant was confronted by the I PW1 and PW2 he was mentioned to be connected with the windscreen. PW1 and PW2 had told the court that when the vehicle of PW5 parked, the 1st appellant approached the driver
and asked him "Vipi?" The driver PW5 denied to have met the 1st appellant at the scene that night and A obviously to have talked to him. But the 1st appellant in his memorandum of appeal, admits to have asked PW5 "Vipi?" To quote the appellant's ground No. 3 he says:
3. That: The evidence of PW1 No. B.3261 Cpl. Maurus is poor evidence in this case. Because he heard a word which B was sometimes wants to help a person especially when you put mind that it was night time then, I was a policeman. I was supposed to ask the owner of the alleged vehicle the word "Vipi?" which means what was "wrong". The driver of the alleged vehicle replied that "there was nothing wrong." C
This confirms the evidence of PW1 and PW2 and discredits his own testimony in the trial court. It also confirms that PW5 Hassan Omari was telling lies when he said he never saw the 1st appellant at the scene. Of course the D utterance of vipi to PW5 is capable of innocent interpretation as he wants to make this court believe. However what followed immediately after such utterance and the inconsistencies that have emerged, leaves one with no doubt that the statement was made with an understanding. Otherwise if it was not so why should PW5 E reply that there was nothing wrong when he infact said in his evidence that he had stopped because his vehicle had heated up. Again 1st appellant said that he returned at the scene and found fellow policemen but left for home. He mentioned nothing with regard to windscreen. There was further evidence that 2nd appellant went to F spend a night at Quarter Guard because of threats from 1st appellant because he had been named to have been connected with the theft of windscreen. Why all this dramatic reaction to the extent of threatening to commit murder? There can be no doubts that the 1st appellant was displeased for being disclosed that he was a party to the theft. G
Earlier on in this judgment I stated that I would refer to the evidence of the appellants which was extracted from them by the trial magistrate in his extensive cross-examination after the appellants had made unsworn statements H from the dock. Under the circumstances the prosecution could not cross-examine the appellants on what they said but the learned trial magistrate conducted an extensive cross-examination on both appellants and extracted some evidence and forced them to produce statements which they had made to the police. The learned trial magistrate made use of the extracted evidence and documents in arriving at the decision in this appeal. The trial I magistrate's conduct went far beyond accepted limits provided by law. As the appellants were not represented by an advocate,
I requested the State Attorney to address me on the issue which I must say, new as he is, Mr. Kaduri has A commendably done the work. The law and practice on this issue is in my opinion quite settled. Section 206 of Criminal Procedure Code is all too familiar to many of us. Sub-section - (1) states as follows and I quote: B
206 - (1) At the close of the evidence in support of the charge, if it appears to the court that a case is made out against the accused person sufficient to require him to make a defence either in relation to the offence with which he is charged or in Crelation to any other offence of which, under the provisions of section 181 to 189 (inclusive) of this Code, he is liable to be convicted, the court shall again explain the substance of the charge to the accused and shall inform him that he has the right to give evidence on oath from the witness box and that, if he does so, he will be liable to cross-examination, or to D make statement not on oath from the dock, and shall ask him whether he has any witnesses to examine or other evidence to adduce in his defence, and the court shall then hear the accused and his witnesses and other evidence if any.
The most relevant portion for this appeal in the above quoted section is of course this: E
...and shall inform him that he has the right to give evidence on oath from the witness box and that, if he does so, he will F be liable to cross-examination, or to make a statement not on oath from the dock,...
Reading the section as it is, it does not appear to me to present any linguistic ambiguity of any kind. In its plain G English language meaning, it means that an accused has a choice either to give evidence from the witness box on oath or to make a statement from the dock without oath. If the accused gives evidence from the witness box on oath, he shall be liable to cross-examination. On the other hand, if the accused makes a statement without oath it H clearly means he shall not be liable to cross-examination and in my considered view, it is not only cross-examination by the prosecution but also by the court and assessors as well. This does not mean that the trial magistrate can write any unintelligible or meaningless statements from accused simply because the statement is not made on oath; the trial magistrate may seek clarification on the statement to make it understood. Seeking I clarification is not cross-examination. The effect and extent of putting questions to an accused who gives an unsworn
statement has been discussed in many cases. The earliest case in which it was discussed was R. v Pirmin A Kunjanga (1935) 2. E.A. C.A.64. In that case, the appellant was charged with murder. The appellant had made a statement in the lower court but that statement was not put in at the trial. The trial magistrate however interrogated that accused on the statement. On appeal the appellate court held: B
No question should be asked of an accused person who has not given evidence on oath unless for the purposes of explaining or clarifying something obscure or ambiguous in his unsworn statement. A discrepancy between two statements is not of itself obscure or ambiguous. C
Twenty five years later, the same court of Appeal for East Africa, as it then existed reiterated the finding in R. v Primin Kunjanga and went a little further by stating the consequence if the questioning caused prejudice to the D accused. This was in the case of Maina Notho v R. [1960] E.A. 453. In that case, the appellant made unsworn statement from the dock but the trial judge put some questions to him. The court discussing R. v Pirmin Kunjanga had this to say: E
With respect we entirely agree with the limitations there indicated which ought to be observed by a trial Judge in asking questions of a prisoner who has elected to make an unsworn statement. If, however, a trial Judge does exceed the limits F there indicated, the matter, in our view, amounts at most to no more than an irregularity which is curable under s.381 of the Criminal Procedure Code unless it "has in fact occasioned a failure of justice."
This was a Kenya case but the provision is similar to our section 206 of Criminal Procedure Code. Back home, G in recent years, this court guided by the decision of the Superior Court as sufficiently shown above, has made similar comments regarding the questioning of an accused who makes an unsworn statement. In the case of Leonard s/o Kaseko v R. [1968] H.C.D. 45 the appellant after making an unsworn statement was questioned H by the magistrate and cross-examined by the prosecution. The Honourable Mr. Justice Cross, as he then was, held:
(1) An Accused who makes an unsworn statement may be asked questions by the Court in order to clarify any of the I statements made by him. It is quite improper for him to be cross-examined by the prosecution.
(2) In the circumstances of this, case, the error in permitting cross-examination did not prejudice accused, and it is A curable under section 346 of Criminal Procedure Code.
To sum it up, the position is, and if I may be excused to use the apt words of Jonathan, Ag. J. as then was, in the B case of Samson Ndegeleki v R. [1972] H.C.D. 197 in which he said:
.... The court then seems to have gone completely out of its way and cross-examined the appellant. The learned resident C magistrate must have overlooked the provisions of S.206 which make it clear that, in the event of an accused person making an unsworn statement he is not liable to cross-examination. That means he is not liable to cross-examination by the prosecution and the court (including assessors) alike. Though occasions rarely arise, or course, there is nothing D improper for a court to put in a brief question to an accused person when making his statement, if to do so would give sense to what is otherwise incomprehensible, which indulgence, in my view, is desirable and certainly in the interests of E the accused and justice in that it affords him assistance to communicate reasonably intelligibly. Here this was not the case, for the court asked questions which were not calculated merely to clarify what was otherwise unintelligible. Though the procedure adopted here was unlawful, I am satisfied that it did not cause a failure of justice and is a curable irregularity. ... F
Turning to the appeal before me, the position is very different from the cases I have discussed above. Both appellants gave unsworn statement but after that the learned trial magistrate not only did he put questions to the G appellants, but carried out extensive cross-examination and made them produce statement made at the police. To complete the picture I think it appropriate to quote extensively the relevant portions of the evidence from the proceedings. I start with P.C. Edwin who was the 1st accused at the trial. After this appellant had made his unsworn statement, the court cross-examined him as follows: H
XXD by the court: (Using statement of the accused on getting it at request from P.P.) If I am shown my statement I can identify it. The recording officer is Sgt. Louo. The statement was read over to me by the recording officer. I signed the statement to show that what was recorded was correct as I had said it. I did not know I
that the statement would be used in evidence. (Shown statement and he admits to have made it). A
I tender my statement as exhibit X. I did not know the 3 others out of the 5 that I suspected. I identified the vehicle as that of SISI KWA SISI. I uttered the words JE, SISI KWA SISI VIPI? to PW5. The denial by PW5 that I ever talked to him is lies. It B is true that PW1 heard by discussion with PW5. I don't know the reason why PW5 had denied ever talking to me. I found the vehicle facing Tunduru direction but it was later found to be facing the town. I was telling lies when I said that after identifying PW1 and PW2 I left and then went to bed. It is true that the 2nd accused named me in connection with C theft. I was carrying out investigations about my co-accused so that he could be arrested. I had grudge with my co-accused and our bosses know about.
My witness will come to tell the court that when co-accused was being arrested I was not there. D
And similarly with P.C. General:
XXD by the Court: I remember to have made my statement at the police station. I can identify my statement. I request to E tender my statement Exh. Y. Before we made our statement we were threatened with being put in the lock up. This is a case resulting from being threatened and implication. I know that the police force is where so as to be protective and fair F to the people and properties (court reads from words "hapo nilimwacha ...(to)... ilikuwa mali gani". Those words are not mine. There are those of of the R/O Sgt. Anatoli. I did not mention the load tied in sacks due to duress and threat (court reads "Baada ya kukiteremsha... (to.... kumpelekea mjini"). Those are words which I made to the recording officer. G Exh. A might be government property. I will call 2 witnesses. The first one was together with me on the day of incident. He was together with me on that day. The second witness is Willy. He is just like the first one, Cpl. Banda who was H guard commander on that day. He is going to tell the court about how 1st accused threatened me such that I decided to go and sleep at the quarter guard.
In his judgment the learned trial magistrate made use of the evidence extracted by cross-examination and to I illustrate my statement, on page 3 of the judgment the learned trial magistrate wrote:
I had opportunity to cross-examine the first accused. His statement to the police has been produced by the first accused A and it is marked Exh. X. The first accused has admitted talking to PW5 the words "JE, SISI KWA SISI VIPI? and that the denial by PW5 that they never met and talked on the day of incident are lies. The first accused generally admits the B contents of Exh. X as those he made to the police.
Again at page 4 it is written:
In brief the totality of the defence is that each of the accused person has done his best, not only from his statement Exh. X C and Y but also in their defence, to shift blame from himself by implicating his co-accused.
And further down on the same page 4 the judgment stated: D
I have noticed that in the statements made to the police Exhs. X and Y that the accused persons have departed from them E in their defence. That is not without reasons except for the second accused because they were caught on the spot. There has not been advanced any reason by the 1st accused as to why he remained near the tea huts until he got arrested.
I have carefully considered the effect of questions put to the appellants and cross-examination thereto. I am of F the settled view that such conduct went far beyond the permitted limits; and having regard to the fact that the learned trial magistrate partly relied on the evidence extracted under the above circumstances in the assessment of the evidence and partly relied on it in arriving at the decision in this case, I am further satisfied that such G conduct prejudiced the appellant's trial and would have occasioned a failure of justice except for the fact that such evidence was not necessary for the determination of this case. There was sufficient other evidence on which conviction could have been based.
This court being the first appellate court, is duty bound to re-evaluate the evidence which was before the trial H court and draw its own inferences and conclusions, where the circumstances demand as in this case, as would have been done by the trial court had it properly directed its mind to the evidence. For this proposition of law I I am guided by the decision in Dinkerrai Ramksishan Pandya v R. [1957] E.A. 336. This was a decision of the former Court of appeal for East Africa which is still sound. The same principle has been restated recently by Tanzania Court J
of Appeal in the case of Martha Michael Wejja v Hon. the Attorney General and Three Others, which is A Court of Appeal Civil Case No. 3 of 1982 (unreported) in which it quoted with approval the same principle in the case of Yuill v Yuill [1945] 1 ALL. E.R. 183. Clearly in this case the learned trial magistrate opted a wrong approach in evaluating the evidence. As abundantly demonstrated above, I have carefully carried out the duty of B this court and have scrutinised, analysed and evaluated the evidence before the trial court completely excluding and ignoring the evidence obtained by trial magistrate on cross-examination on the appellant and come to the conclusion that the rest of the evidence as there was in this case left no doubts whatsoever as to the guilt of the C appellants. The appeals against convictions are thus dismissed.
The appellants were sentenced to five years' imprisonment because the property stolen was said to be worth over Shs.5,000/=. Under the Minimum Sentences Act, the value of the property stolen affects the sentence. It is D therefore important for the court to judiciously determine the value of property in issue. Where exact value can be established this should be done. Where only approximate value is given the basis of such approximation must be given. In this case it is stated in the charge sheet that the windscreen was worth Shs.5,000/=. One witness E during the trial stated that the value was between Shs.5,000/= and 6,000/= but the record is silent as regards the basis of the witness's opinion of the value of the windscreen. The court accepted such assessment without analysis and scrutiny. A windscreen of an Isuzu, as was in this case, is an item whose exact price can be established without difficulty and the courts should not allow prosecution laxity to the detriment of an accused. F Even, then, in this case, the estimated value is on the border line and under such circumstances, the appellants should have been given the benefit of the doubt to the effect that the value could infact be less than Shs.5,000/=. G The sentence of five years is reduced to that of three years.
Order accordingly.
A
