CRIMINAL LAW TWO - BY BARRISTER KATURA

CRIMINAL LAW TWO

PREPARED BY - MUGISHAGWE J. KATURA

ZANZIBAR UNIVERSITY



THEFT

*Statutory definition of theft;- Sections 258 (1) of TPC provides that:
" A person who fraudulently and without claim of right takes anything capable of being stolen, or fraudulently converts to the use of any person other than the general or special owner thereof anything capable of being stolen, is said to steal that thing."

*Necessary ingredients of theft;-
1. A person who fraudulently (intention)
2. Without Claim of Right
3. Takes (move) or Converts to the use other than than general or special owner.
4. Anything capable of being stolen. Is said to steal the thing.

1. A Person Who Fraudulently (intention)
Case
R v Williams [1923] 1 KB 340
Facts
The defendant was a singing coach. He told one of his pupils that he was performing an act to open her air passages to improve her singing. In fact he was having sexual intercourse with her.
Held
It was held that her consent was vitiated by fraud as to the nature and quality of the act.

2. Without Claim of Right
Case
Mohammed Hassan v. R [1969] H.C.D N0.71. { Mtuhumiwa alikua muajiriwa wa mlalamikaji, alifukuzwa kazi bila ya kulipwa mishahara yake ya nyuma, akaamua kumuibia nguo zake } [ Rufaa ya mtuhumiwa ilikubaliwa ]
Facts
The appellant was employed as a house servant by the complainant. He admitted that he took clothes from complainant's room by opening the window. He justified this by declaring that the complainant had dismissed him from employment owing or unpaid him three months wages, despite of repeated requests he decided to take his clothes.
HELD;
On an appeal against the conviction of burglary, the high court allowed the appeal on the ground of defense to charge under bona fide claim of right.
Therefore it was possible for X to win the appeal against the conviction of Burglary due to that " A person is not criminal responsible if the act done or omitted to be done in the exercise of honest claim of right and without intention to defraud"

Lenderito Laidosoli V. R [1970] H.C.D N0.169. { Mlalamikaji alikua mpangaji wa mtuhumiwa aliondoka bila kulipa pango, mtuhmiwa akaamua kuchukua suitcase yake na shuka zake } [ Rufaa ya mtuhumiwa ilikubaliwa ]
Facts
The complainant was a tenant of the appellant and left without paying rent. Complainant rented another house and when the appellant demanded his rent he failed to pay him, appellant told the complainant that he will see the consequences in the evening, in the evening the appellant came to a complainant and took two suitcases as well as bedsheets.
HELD; On the appeal against the conviction of theft , the high court allowed the appeal because the appellant acted under bona fide claim of right due to complainant's refuse to pay back the rent of appellant.

3. Takes (move) Or Converts To The Use.

Case
Mazengo Nagala V. R (1969)
Facts
The accused was charged with theft but was convicted of attempted cattle theft. The evidences show that at about three o'clock in the morning the complainant was awaken by the sound of cattle moving and found four herd of cattle outside the boma were broken and the accused was trying to escape.
Held
The act of moving cattle outside the boma but without moving them away did not amount to taking, the appellant attempted theft.

MELIKI s/o MAYALA v. R (1968) HCD 376
Facts
Accused, by a written contract, agreed to build a home for the complainant, who was to supply the building materials. The complainant became unsatisfied with the progress made and terminated the accused 's contract. Complainant demand return of four bags of cement, which accused has sold to a third party before the complainant ended the contract.

Held:
The essential element of section 273, and all other cases of theft in the Penal Code, is fraudulent taking or conversion. Here, there was no evidence that the contract required the accused to use the very bags supplied to him for building the house. The act of the complainant in terminating the contract deprived the accused of the opportunity of replacing the bags; his fraudulent intent was not proved. Conviction quashed.

4. Anything capable of being stolen;-
The item stolen must be one which Criminal Law regards as being "capable of being stolen"otherwise an offense of theft cannot be said to have been committed.

Sections 257 of TPC describes the "things capable of being stolen" as follows: sub-section 1 of these sections provides: "Every inanimate thing which is the property of any person and which is movable, is capable of being stolen."

Therefore thing capable of being stolen must be;

a) Inanimate thing i.e. not alive, especially the way humans and animals are e.g. a chair, table, laptop, watch etc.
b) Property of somebody i.e. a thing which has no owner cannot be stolen that's why in framing a charge for theft, it always include the words "belonging to" to signify the importance of ownership.

Cases;-
1.Rose v. Matt [1951] 1 K.B. 810
Facts;-
The owner of goods who entrusts(assign the responsibility) them to another person in such circumstances that the latter has a special property in them, he came and took them dishonestly due to that he was the owner of those goods.
Held:-
He was guilty of larceny (theft) because he fraudulently took them away again. The word owner is not restricted to the real (legal) owner only it will also imply to the special owner i.e. interim owner or possessor, therefore it is quite possible for a somebody as a legal owner to steal his/her own thing possessed by a special owner.

c)Movable;- A thing to be stolen must be movable, that means immovable things like land, water and houses cannot be stolen, however, there are exceptions to this general rule as it has been provided by sections 266 (2) of ZPA & 257 (2) of TPC as follows:
" Every inanimate thing which is the property of any person and which is capable of being made movable is capable of being stolen as soon as it becomes movable, although it is made movable in order to steal it."
This would cover situations when a person removes a door or window or roofs from a house in order to steal it or water, air and electricity once they were made movable for the purpose of stealing.

Cases;-
R. v. NDESARIO (1968) HCD 245
Facts;-
Accused was convicted of theft. There was evidence that a water furrow(narrow trench for irrigation) traverses(pass) complainant's shamba. Accused had no water right, but by a gentleman's agreement he was permitted to take water from the furrow between 6 a.m and 9 a.m. It was charged that accused had taken water during the night and used it for irrigation.
Held;
The accused was liable because was taking a movable object which was not belonging to him.

The Court stated, obiter;
So long as fluid such as water can be sufficiently appropriated to the user, it can be stolen. Also held that water supplied by a water company to a consumer and standing in his pipes may be the water passing over his farm, and for accused to extract water except during the permitted hours and to use it for irrigation would be to take a movable object which did not belong to him with the intent to permanently deprive(prevent) the holder of the right of it.

*Must the thing stolen have any value?
Both statutes (ZNZ PA & TZ PC) provides nothing about the value of the thing capable of being stolen. Fraudulent taking is the key word. It may be stated that if the taking of the thing which the taker thought was valueless was motivated by fraudulence, the taker of the supposedly valueless thing will still be liable for Theft.

Cases;-
R. v. DANIEL KAMBEGWA (1968) HCD 333
Facts;-
Accused was charged with theft by public servant [P.C. 265, 270]. The prosecution stated that a bonnet stand was missing from a motor vehicle, and that accused was seen some days later using it as a walking stick. Accused answered the charge by saying "It is true." When asked if there were special circumstances which might warrant leniency(the fact) under the Minimum Sentences Act, he stated that he had not know that the bonnet stand was of any use, and that he had taken it to use as a stick.
Held:
(1) In a prosecution for larceny(theft), it is irrelevant that the property taken may be of no value, or that the owner may intend no further use for it.
(2) In this case, the "plea(appeal) of guilty" was equivocal(ambiguous), since the gist(core meaning) of accused's position was that the bonnet stand had been abandoned. Conviction quashed.

CONVERSION NOT AMOUNTING TO THEFT
Case;-
Lexcon odutu v. R (1970)
Aliazima baskeli kwa mda wa siku moja lakini alikaanayo kwa muda wa miezi minne alaf akairudisha.


DOCTRINE OF RECENT POSSESSION

The doctrine of 'Recent Possession' means that where one is found with a property recently reported stolen, that person may be held to have stolen it.
This doctrine has been developed through case law & it is not provided for by the Penal Code or Penal Act but is under section 122 of the TEA, 1967 & 114 ZED where the court may presume the existence of certain facts which thinks likely to have happened.

Cases;-
ELIAS v. R (1972) HCD 111
Facts;-
Crim. App. 115-Dodoma-71; 20/1/72; Kwikima Ag. J.
The appellant was found with a stolen watch and money bag three days after they were stolen from the complainant. The appellant was convicted of housebreaking and stealing following the doctrine of recent possession and the appellant's failure to give a reasonable account as to how he came in possession thereof. The High Court upheld his conviction and his sentence on these two counts. When the appellant's house was searched some poisonous drugs in the form of procaine penicillin were found besides other suspect articles. The drugs were seized and taken to form the basis for the third charge brought under Cap. 409 section 36 (1) to wit practicing medicine without due license.

Held:
(1) The prosecution committed a serious blunder in bringing the charge on the third count "in the same charge as they brought the offense of breaking and stealing. This was clearly wrong in terms of section 136 Criminal Procedure Code Cap. 20 which reads: 'Any offenses whether felonies or misdemeanor, may be charged together in the same charge of information if the offenses charged are founded on the same facts or form or are a part of a series of offenses of the same or a similar character'. It cannot be said from this definition that the offense of practicing medicine was properly joined with that of housebreaking and stealing since it could not have been founded on the same facts nor was it in any way similar to the offense of housebreaking stealing. In this sense therefore, the appellant's conviction on the offense of unlawfully practicing medicine was bad for misjoinder even assuming there was evidence in support of it …. There was insufficient evidence upon which to hold the appellant guilty of practicing medicine unlawfully. It would not therefore be fair to allow his conviction on this count to stand since such defect is not curable under section 346 of the Criminal Procedure Code. Consequently it is hereby quashed and the sentence thereof set aside. To this extent the appeal is allowed." (2) "What should have been done was for the prosecution to charge the appellant with the offense of unlawfully possessing poisons under the appropriate ordinance. They had all the evidence to secure his conviction had they done so."

MICHAEL MHUTO v. R [1975] L.R.T n 18

Facts

SAIDI MKUYU v. R [1972] H.C.D n 41
Facts
The appellant was found with the stolen radio two hours after the a house breaking.
Held
The appellant was liable
Reason
The judge observed that where a person is found with a stolen good, even if no direct evidence can be given, he can be convicted of house breaking and stealing.

NAFTALI NGALYA V. R [1976] LRT n 45


HOUSE BREAKING AND BURGLARY

Break (separate), Enter (go into).
Section 293 TPC provides as follow:
(1) A person who breaks any part, whether external or internal, of a building, or opens by unlocking, pulling, pushing, lifting, or by any other means whatever, any door, window, shutter, cellar flap or other thing, intended to close or cover an opening in a building, or an opening giving passage from one part of a building to another, is deemed to break the building.
(2) A person is deemed to enter a building as soon as any part of his body or any part of any instrument used by him is within the building
(3) A person who obtains entry into a building by means of any threat or artifice used for that purpose, or by collusion(deceive,conspiracy) with any person in the building, or who enters any chimney or other aperture of a building permanently left open for any necessary purpose, but not intended to be ordinarily used as a means of entry, is deemed to have broken and entered the building.

Analysis
The sections provides two ways of breaking i.e.
(i) Direct breaking or actual breaking
(ii) Indirect breaking or constructive or technical breaking

Direct breaking is physical and actual. It involves breaking by unlocking, pulling, lifting any door, window, shutter, cellar flap or other thing intended to cover an opening. Once any part of breaker's body (or any instrument he or she uses) is within the building the process of breaking is deemed complete by law.

Indirect breaking on the other hand, is constructive or more technical, several forms of indirect breaking are elaborated in the second paragraph of the concerned sections which are as follows:-
a) A person who enters after exercising some threat or artifice for that purpose
e.g. a child left in a building is tricked into opening the door or a child being threatened that the building will be razed down if the door is not opened thereby facilitating access therein.
b) By collusion with any person in the building
e.g. a person is lawfully in a building arranges with another person outside the building to open a window at night to enable the person outside to enter the building.
c) Entering through openings not intended to be ordinarily used as means of entrance,
e.g. A person used a door left purposely open to allow in fresh air or allow out smoke or otherwise to gain anything from this building. This act will be regarded as breaking.

Difference between House Breaking and Burglary

The offense of House Breaking & Burglary are shown under sections 294 TPC as follows:
(1) Any person who–
(a) breaks and enters any building, tent or vessel used as a human dwelling with intent to commit an offense therein; or
(b) having entered any building, tent or vessel used as a human dwelling with intent to commit an offense therein or having committed an offense in the building, tent or vessel, breaks out of it, commits an offense of housebreaking and is liable to imprisonment for 14 yrs (TZM) or not exceeding 10 yrs (ZNZ).
(2) If an offense under this section is committed in the night, it is burglary and the offender is liable to imprisonment for 20 yrs (TZM) or not exceeding 15 yrs (ZNZ).


Cases;-
Lenderito Laidosoli V. R [1973] H.C.D N0.169. { Mlalamikaji alikua mpangaji wa mtuhumiwa aliondoka bila kulipa pango, mtuhmiwa akaamua kuchukua suitcase yake na shuka zake } [ Rufaa ya mtuhumiwa ilikubaliwa ]
Facts;-
The appellant was convicted of burglary and theft. The complainant was a tenant of the appellant and left without paying rent. Complainant rented another house and when the appellant demanded his rent he failed to pay him, appellant told the complainant that he will see the consequences in the evening, in the evening at 10:30pm 10th May 1972 the appellant came to a complainant's house broke the door and took two suitcases as well as bedsheets.
HELD; On the appeal against the conviction of burglary & theft , the high court allowed the appeal because the appellant acted under bona fide claim of right due to complainant's refuse to pay back the rent of appellant.

Mohamed Hassan V. R (1969) HCD 67
Facts;-
Crim. App. 348-D-68, 6/11/68, Biron J.
The appellant was convicted of burglary and stealing c/s 294(1) and 265, Penal Code and was sentenced to imprisonment for two years and six months respectively, to run concurrently, and to the statutory twenty four stokes corporal punishment. The appellant had previously been employed as a house servant by the complainant. He admitted that he had taken the clothes from the complainant's room by opening the widow and "pole-finishing" then out. He justified this by declaring that the complainant had dismissed him from his employment owing him three moth's wages, and, as the complainant had failed to pay the wages due to him, despite repeated requests, he decided to take his clothes.
Held:
"If the appellant's story is true, it would constitute a defense to the charge, as the appellant may well have thought he was acting under a claim of right, The appeal is accordingly allowed, the conviction is quashed, and the sentence imposed thereon is set aside".

Said Ally v. R (1973) H.C.D No.66
Facts
The appellant was charged with burglary but he was convicted of attempting to commit the offense. The complainant was awakened by noises in the small hours of the material night. As he climbed down he heard someone running away from the house. On flashing the touch he found that the door glass had been broken. He called a police and took photograph of finger impression found on the piece of glass. Where by later on the appellant was caught.
Held;
On appeal the judge said that "i am agreeing with the trial court that the facts did not constitute the offense charged as there had been no entering, having regard to the time the offense was committed, the appellant was attempting to break into the house in order to commit felony, thus the appellant did not commit offense of burglary but attempted to commit the offense of burglary"

PETRO SAMSON v. R.(1970) HCD 35
Facts;
(PC) Crim. App. 789-M-69, 7/1/70, Seaton J.
The appellant was convicted of burglary and theft. The prosecution witnesses testified that the appellant entered the complainant's room through an opening between the top of the wall and the roof and stolen there from a bundle(collection of things) of clothes. As to the first count, which related to burglary, the conviction was against the personal view of the Primary Court Magistrate. He was of the view that no offense had been committed but felt constrained(force,compel) to convict because of the majority view of his two assessors(assistants to a judge) and the provisions of s. 8(2) of Act No. 18 of 1969. Why this, the owner of the house knows. I am satisfied that the accused's climbing of the wall and entering the room cannot be said as 'breaking'. For the above reasons, I am personally convinced to find that the accused is not guilty on the first count and I do not see the reason why was he charged with burglary."
Held:
"The essence of the matter, therefore, is whether there can be said to be a "breaking" when the thief gains access by an opening such as was left between the inner wall and the roof over the complainant's room. Under the Indian Penal Code of 1860, s. 445, this would not be a matter for doubt because breaking includes entering through any passage not intended for human entrance. In English law, it is clear that if a person deliberately leaves an opening in his house to admit air or light, for example through a door or window, and a thief enters, no burglary is committed. It is also clear that if a person's house has a chimney and a thief enters through this aperture, it is a burglary. The reason in the latter case is that 'it is as much closed as the nature of things will permit." So says Archbold, 35th ed., 1800-1802 and Russell, 11th Ed., 914-916. However, in connection with gaining entry by overleaping a wall, Russell seems to rule out burglary (at 917). By definition, s. 293 of the Penal Code also seems to rule it out unless an aperture is left open "for any necessary purpose ……" the present appeal seemed important because of the prevalence in this country of houses having rooms without ceiling boards and with apertures between the inner walls and roofs of corrugated iron sheets….. The Senior State Attorney …. Pointed out that there was no evidence why the opening in the complainant's house was left; it may have owed to lack of funds to complete the wall. Hence it could not be said with certain that the opening was "for a necessary purpose" and learned Senior State Attorney declined to support the conviction for burglary. With respect, I share the view that in law no burglary was committed. Therefore I quash the conviction and substitute one under s. 295 of the Penal Code for entering dwelling house with intent to commit a felony(crime)."

Necessary Ingredients of House Breaking & Burglary
1-Dwelling House: the subject matter of House breaking or burglary. It could be an ordinary building, a tent or vessel by thoroughly defined by sections 4 ZPA & 5 TPC.
2-Breaking: could be direct or indirect as provided by sections 296 ZPA & 293 TPC.
3-Entry: as explained in the above sections.
Entry must be for the purpose of committing an offence therein.
4-Night: so as the offence of HB to turn into burglary should be committed within the stipulated time in either ZPC or TPC.
N.B. Entering Dwelling House with Intent to Commit an Offence

1-Dwelling House:- This is the subject matter for of house breaking and burglary, a dwelling house coul be either an ordinary building, atent or even vessel.

Cases;-
Ambari Zango V. R(1969) HCD 175
Facts;-
The appealant was convicted in the district court of Tanga of offence of Burglary and stealing, the evidences show that the accused during the hours of darkness opened a door leading into enclosed yard and took there some clothes which were hanging there. He was apprehended(arrested) with stolen property in his possession.

Held;-
The conviction for burglary was upheld

R v Walkington [1979] 1WLR 1169
Facts;-
The defendant was in Debenhams department store. He saw a till which was partially opened and left unattended. He reached behind the counter and looked into the till but it was empty. He was charged with burglary under s.9(1)(a) for entering a part of a building with intent to steal. He was convicted and appealed contending that the counter which is not physically separated from the rest of the store can not amount to a part of a building.

Held:
His conviction was upheld. There was no requirement to have a physical separation. The counter area was clearly out of bounds to the public and thus he was a trespasser in that part of the building.


2-Breaking (seaparate)
Section 296 ZPA & 293 TPC provides as follows:
(1) A person who breaks any part, whether external or internal, of a building, or opens by unlocking, pulling, pushing, lifting, or by any other means whatever, any door, window, shutter, cellar flap or other thing, intended to close or cover an opening in a building, or an opening giving passage from one part of a building to another, is deemed to break the building.
(2) A person is deemed to enter a building as soon as any part of his body or any part of any instrument used by him is within the building
(3) A person who obtains entry into a building by means of any threat or artifice used for that purpose, or by collusion(deceive,conspiracy) with any person in the building, or who enters any chimney or other aperture of a building permanently left open for any necessary purpose, but not intended to be ordinarily used as a means of entry, is deemed to have broken and entered the building.

Analysis
The sections provides two ways of breaking i.e.
(i) Direct breaking or actual breaking
(ii) Indirect breaking or constructive or technical breaking

Case;

Lenderito Laidosoli V. R [1973] H.C.D N0.169. { Mlalamikaji alikua mpangaji wa mtuhumiwa aliondoka bila kulipa pango, mtuhmiwa akaamua kuchukua suitcase yake na shuka zake } [ Rufaa ya mtuhumiwa ilikubaliwa ]
Facts;-
The appellant was convicted of burglary and theft. The complainant was a tenant of the appellant and left without paying rent. Complainant rented another house and when the appellant demanded his rent he failed to pay him, appellant told the complainant that he will see the consequences in the evening, in the evening at 10:30pm 10th May 1972 the appellant came to a complainant's house broke the door and took two suitcases as well as bedsheets.
HELD; On the appeal against the conviction of burglary & theft , the high court allowed the appeal because the appellant acted under bona fide claim of right due to complainant's refuse to pay back the rent of appellant.

3-Entry:- It must be proved that the accused broke and entered the building
Case;-
MOHAMED HASSAN v. R (1969) HCD 67
Facts;-
Crim. App. 348-D-68, 6/11/68, Biron J.
The appellant was convicted of burglary and stealing c/s 294(1) and 265, Penal Code and was sentenced to imprisonment for two years and six months respectively, to run concurrently, and to the statutory twenty four stokes corporal punishment. The appellant had previously been employed as a house servant by the complainant. He admitted that he had taken the clothes from the complainant's room by opening the widow and "pole-finishing" then out. He justified this by declaring that the complainant had dismissed him from his employment owing him three moth's wages, and, as the complainant had failed to pay the wages due to him, despite repeated requests, he decided to take his clothes.
Held: "If the appellant's story is true, it would constitute a defense to the charge, as the appellant may well have thought he was acting under a claim of right, The appeal is accordingly allowed, the conviction is quashed, and the sentence imposed thereon is set aside".

MARTIN SENZOTA v. R. (1967) HCD 80
Fact;-
Appellant was convicted of school breaking and stealing (P.C. s. 296 (1)). He was a teacher in charge of a primary school. When the school was closed and he was transferred elsewhere, he entered a classroom with his own key and removed property belonging to him and some items belonging to the school. The magistrate found that he had no intention of stealing at the time he entered the room.

HELD:
(1) A "breaking" must be "unlawful and without a legal right to do the act which constitutes the breaking."

(2) The intention to commit a felony must be present at the time of the entry. Convictions quashed, and a conviction for stealing substituted.

R v Brown [1985] Crim LR 212 Court of Appeal
Facts;-
The appellant appealed against his conviction for burglary. He or another with him had smashed the window of the Argos shop. He had leaned in and taken goods. The appellant argued that an entry into a building had to be substantial and effective and as his feet were still outside the building there was no substantial entry.
Held:
His conviction was upheld. The entry need not be substantial provided it is effective.


R v Ryan [1996] Crim LR 320
Facts;-
The defendant was found wedged(a piece of wood) in the kitchen window of the home belonging to an elderly man. His head and right arm were inside the property but the rest of his body was outside. The fire brigade(army) had to be called to remove him. He was convicted of burglary and appealed on the grounds that there had been no effective entry.

Held:
His conviction was upheld. The question had been correctly put to the jury.


4-Night: so as the offense of HB to turn into burglary should be committed within the stipulated time in either ZPC or TPC.

Case;-
Said Ally v. R (1973) H.C.D No.66
Facts
The appellant was charged with burglary but he was convicted of attempting to commit the offense. The complainant was awakened by noises in the small hours of the material night. As he climbed down he heard someone running away from the house. On flashing the touch he found that the door glass had been broken. He called a police and took photograph of finger impression found on the piece of glass. Where by later on the appellant was caught.
Held;
On appeal the judge said that "i am agreeing with the trial court that the facts did not constitute the offense charged as there had been no entering, having regard to the time the offense was committed, the appellant was attempting to break into the house in order to commit felony, thus the appellant did not commit offense of burglary but attempted to commit the offense of burglary"


ROBBERY

Robbery is a form of aggravated( more serious) theft, in that it involves the offense of theft plus force or threat of force on a person. The maximum sentence for robbery is life imprisonment.
Sections 285 (ZPA &TPC) defines the offense of Robbery as follows:
"Any person who steals anything and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained commits an offense of robbery."
Sections 286 (ZPA &TPC) provides the punishment of Robbery where for ZNZ is imprisonment for a term not exceeding 25 yrs & Mainland is 15 yrs imprisonment.
There is other related offence termed 'armed robbery' which has been defined under section 287A of TPC and no definition has been given under ZPA.


Necessary ingredients
1- stealing (as defined in sections 266 & 267 of ZPA 257 & 258 of TPC).
2- accompanied with use or threat to use violence (force).
3- the use or threat of violence is directed to any person or property.
4- use of violence or threat of violence is used in order to obtain the property to be stolen or after obtaining it, to prevent it being taken back.

1- Stealing

VENANCE NKAMA v. R (1970) HCD 34

Crim. App. 826-D-69, -/1/70
Mustafa J.
Appellant was convicted of robbery. Complainant, Police Constable Joel, alleged that when he was sitting in a bus, somebody from outside snatched the hat he was wearing. He managed to snatch the hat back from the said person, and when he looked outside of the bus window to see who the person was, the person slapped him on the face. Complainant got off the bus and saw the person who had struck him. Complainant said the person struck him once again. The person then ran away, but complainant gave chase and managed to arrest him. That person turned out to be the appellant.

Held:
"The evidence does not support a charge of robbery the evidence would be more consistent with a charge of simple theft, or possibly of stealing from the person of another. At the time the appellant stole the hat, he did not use or threaten to use actual violence in order to obtain or retain the said hat." Conviction for robbery set aside, and conviction for theft substituted.

2- accompanied with use or threat to use violence (force).

SABUNI AND ABDALLAH v. R (1971) HCD 138
Facts;-
The appellants were jointly convicted of robbery. They were alleged to have attacked a part of four who were coming from a Saba Saba party. According to evidence, in the struggle one of the members of the party was raped and she lost her watch and ring. No one testified that he saw the appellants taking these articles. On appeal the conviction for robbery was quashed because of lack of proof. But a conviction for assault was substituted the learned acting judge remarking:
Held:
(1) "But I think the evidence on record disclosed the offense of assault. I am not aware of the Ugandan case where it was held that the offense of assault was not minor to that of robbery as the offense of assault is not cognate to that of robbery. The law in Tanzania is different in that minor offenses need not be necessarily cognate to major offenses." (He then set out the provisions of s. 181 (1) and (2) of the Criminal Procedure Code and continued) "Indeed in the case of Musa and others v. R. 1967 E. A. 537 Platt J. as the then was held that "the ingredients of the offense (of assault ) were includes in the offense of robbery with violence". In this case there was overwhelming evidence of assault and even rape. Accordingly I will quash the conviction for robbery and substitute one of assault under section 181 C. P. C."

(2) Appeal dismissed.


RAPE

The Offense of Rape is defined by section 130 TPC.
(1) It is an offense for a male person to rape a girl or a woman.
(2) A male person commits the offense of rape if he has sexual intercourse with a girl or a woman under circumstances falling under any of the following descriptions:
(a) not being his wife, or being his wife who is separated from him without her consenting to it at the time of the sexual intercourse;
(b) with her consent where the consent has been obtained by the use of force, threats or intimidation(frighten) by putting her in fear of death or of hurt or while she is in unlawful detention(arrest);
(c) with her consent when her consent has been obtained at a time when she was of unsound mind or was in a state of intoxication induced(convince) by any drugs, matter or thing, administered to her by the man or by some other person unless proved that there was prior consent between the two;
(d) with her consent when the man knows that he is not her husband, and that her consent is given because she has been made to believe that he is another man to whom, she is, or believes herself to be, lawfully married;
(e) with or without her consent when she is under eighteen years of age, unless the woman is his wife who is fifteen or more years of age and is not separated from the man.
(3) Whoever–
(a)being a person in a position of authority, takes advantage of his official position, and commits rape on a girl or a woman in his official relationship or wrongfully restrains and commits rape on the girl or woman;
(b) being on the management or on the staff of a remand home or other place of custody, established by or under law, or of a women's or children's institution, takes advantage of his position and commits rape on any woman inmate of the remand home, place of custody or institution;
(c) being on the management or staff of a hospital, takes advantage of his position and commits rape on a girl or woman;
(d) being a traditional healer takes advantage of his position and commits rape on a girl or a woman who is his client for healing purposes;
(e) being a religious leader takes advantage of his position and commits rape on a girl or
woman.
(4) For the purposes of proving the offense of rape–
(a) penetration however slight is sufficient to constitute the sexual intercourse necessary to the offense; and
(b) evidence of resistance such as physical injuries to the body is not necessary to prove that sexual intercourse took place without consent.
(5) For the purposes of this section spouses shall be deemed lawfully separated even if the separation is arranged by the family or clan members.

Case;-
R v Williams [1923] 1 KB 340
Fact
The defendant was a singing coach. He told one of his pupils that he was performing an act to open her air passages to improve her singing. In fact he was having sexual intercourse with her.
Held
That her consent was vitiated(spoiled) by fraud as to the nature and quality of the act.

Penetration
According to sub-sections 4 of sections 125 ZPA & 130 TPC penetration is an important ingredient of the offense of Rape.
(4) For the purposes of proving the offense of rape–
(a) penetration however slight is sufficient to constitute the sexual intercourse necessary to the offense; and
(b) evidence of resistance such as physical injuries to the body is not necessary to prove that sexual intercourse took place without consent.

Punishment of Rape
A person who commits rape in Zanzibar is liable for to be punished with imprisonment for life and in any case for imprisonment of not exceeding thirty years with fine and compensation to the victim.(Sec. 126 (1))
In TZ Mainland is imprisonment for life, and in any case for imprisonment of not less than thirty years with corporal punishment, and with a fine and compensation to the victim.(Sec. 131(1)).

Gang Rape
Provided by sections 127 ZPA & 131A TPS as follows:
(1) Where the offense of rape is committed by one or more persons in a group of persons, each person in the group committing or abetting the commission of the offense is deemed to have committed gang rape.
(2) Every person who is convicted of gang rape shall on conviction be liable to imprisonment for life, regardless of the actual role he played in the rape, and whether or not he is a man or woman

ANALYSIS OF SECTION 130 TPC
1-Being unlawful Carnal knowledge(sexual intercourse)
Section 130(2)(a) Not being his wife, or being his wife who is separated from him without her consenting to it at the time of the sexual intercourse;

Case;-
R.V. Chapman [1959] 1 QB 100
Facts
The accused was convicted of having unlawful sexual intercourse with his wife a girl aged 16 years age, who they were separated.
Held
The court said that this was sexual intercourse outside the bounds of marriage, general rule is that a husband cant rape his wife. But there are some exceptions;- (1) where there is separation (2) Divorce

2- Consent obtained by force, fear or bodily harm
Section 130(2)(b) with her consent where the consent has been obtained by the use of force, threats or intimidation by putting her in fear of death or of hurt or while she is in unlawful detention;

Case;-
MTUNDUCHILE AND OTHER v. REPUBLIC (1970) HCD 304
Facts
Crim. Apps. 257, 258 and 259-D-70; 19/8/70; Biron J.
The three appellants were convicted of burglary, stealing and rape and sentenced to a total of three years and twenty four strokes each. According to evidence given by a woman and her daughter, the appellants broke into their house, stole some articles and demanded to have sexual intercourse with the daughter who was in an advanced state of pregnancy. The mother, fearing for the life of her daughter, offered herself instead, whereupon each of the appellants had sexual intercourse with her in turn. All the appellants set up defenses of alibi(defense of innocence).
Held;-
"The judge then set out s. 130 of the Penal Code where under the accused were charged and convicted and hen continued" "The two women were alone in the house, which is apparently isolated. They were threatened with death by three men armed with knives if they tried to raise the alarm. Although the mother consented, in fact volunteered herself as a substitute for her daughter, such consent is, to my mind, vitiated by her fears for her daughter's health, and it is not irrelevant to not that the section above set out expressly states that if the consent is obtained 'by fea of bodily harm', the act would still constitute rape. The mother, apart from her maternal affection was under a duty to protect her daughter, therefore I fully agree, with respect, with the learned magistrate that the acts of the three accused constituted rape on the part of each. The conviction for rape is therefore duly upheld. Appeal dismissed.

3- Consent obtained by means of false pretense, intoxication
Section 130(2)(c) with her consent when her consent has been obtained at a time when she was of unsound mind or was in a state of intoxication induced(convince) by any drugs, matter or thing, administered to her by the man or by some other person unless proved that there was prior consent between the two;
Case;-
R v Williams [1923] 1 KB 340
Fact
The defendant was a singing coach. He told one of his pupils that he was performing an act to open her air passages to improve her singing. In fact he was having sexual intercourse with her.
Held
That her consent was vitiated(spoiled) by fraud as to the nature and quality of the act. Conviction upheld.

4- Consent obtained by Impersonating as husband.
Section 130(2)(d) with her consent when the man knows that he is not her husband, and that her consent is given because she has been made to believe that he is another man to whom, she is, or believes herself to be, lawfully married;
Case;-
R. V. Dee (1884)15cox 579.
Facts
A married woman consented to have sexual intercourse with the accused under the impression that he was her husband.
Held
On the appeal the court held that the accused was guilty.

*Penetration
According to sub-sections 4 of sections 125 ZPA & 130 TPC penetration is an important ingredient of the offense of Rape.
(4) For the purposes of proving the offense of rape–
(a) penetration however slight is sufficient to constitute the sexual intercourse necessary to the offense; and
(b) evidence of resistance such as physical injuries to the body is not necessary to prove that sexual intercourse took place without consent.

Case;-
Fundi Omari Madega V. R (1970)
Facts;-
The complainant stated that she was raped but she had no evidences. She said that " the accused threw me to the ground and threatened to kill me if I tried to raise alarm , I was not wearing underwear"
Held
The court said that in case of rape there must be evidence of penetration of penis into the vagina though emission of seed is not necessary.

SEXUAL ASSAULT

According to section 135 TPC. Sexual assault on persons and indecent assaults on women
(1) Any person who, with the intention to cause any sexual annoyance to any person utters any word or sound, makes any gesture or exhibits any word or object intending that such word or object shall be heard, or the gesture or object shall be seen, by that other person commits an offense of sexual assault and is liable on conviction to imprisonment for a term not exceeding five years or to a fine not exceeding three hundred thousand shillings or to both the fine and imprisonment.
(2) Where a charge for sexual assault under this section relates to a boy or girl under the age of eighteen years, it shall be no defense

Case;-

Case;-
R. v. SALIM s/o ABDALLAH (1970) HCD 38
Facts
Crim. Rev. 1-D-70, 14/1/70, Mustafa J.
The accused was charged with indecent assault, contrary to section 135(1) of the Penal Code and was instead convicted of rape, contrary to section 131 of the Penal Code. Evidence was adduced by the complainant that while she was asleep one night, she was suddenly awakened by finding someone lying on top of her, and she then believed she had been sexually assaulted as she found seminal fluid on her vagina and her thighs.
Held:
(1) "Rape carried a sentence of life imprisonment, whereas indecent assault carries a maximum of only fourteen years' imprisonment. Rape is certainly not a minor offense to indecent assault. Section 181 (1) of the Criminal Procedure Code allowed a cognate and minor offense to be substituted in certain cases.
The provisions of section 185(1) of the Criminal Procedure Code allow a person charged with rape to be convicted of indecent assault, but not the reverse."
(2) "Even on the evidence adduced, there does not appear to have been rape. There was no evidence of penetration. In the circumstances, I substitute a conviction for indecent assault against the accused, as originally charged, and set aside the conviction for rape."

R. v. ALLY MOHAMED (1968) HCD 146
Facts
Crim Rev. 8-A-68, 6/2/68
Seaton J
Accused, aged 7,8 and 10 years, respectively, were convicted of indecent assault upon a 6-year-old boy, put on probation and ordered to pay compensation of Shs. 10/- each to the complainant. The Magistrate did not appear to have asked the accused to show cause why they should not be convicted, or to have cross-examined the witnesses against the accused, as is provided for by the Children and Young Persons Ordinance [Cap. 13, ss. 9, 12]. Nor did he direct himself as to the presumptions of incapacity of children under 12 years of age laid down in section 15 of the Penal Code.
Held:
"The omission to comply with the procedural formalities is serious but even more is the failure of the learned magistrate to direct himself regarding the presumed incapacity." Convictions quashed, sentences set aside.


Defilement of Idiots & Imbeciles

According to section 137 TPC. Defilement of idiots or imbeciles
Any person who, knowing a woman to be an idiot or imbecile, has or attempts to have unlawful sexual intercourse with her in circumstances not amounting to rape, but which prove that the offender knew at the time of the commission of the offence that the woman was an idiot or imbecile, is guilty of an offence and is liable to imprisonment for fourteen years, with or without corporal punishment.

Case;-
Wilson v. Commonwealth(1942)
Facts
Accused was fixing a tire outside, a woman of 44years old called him and assisted him to enter into house through the window, brother-in-law entered the room and found W having sex with her. W was charged and convicted of rape.
Held;-
On appeal the accused said that he ddnt know that that lady was incapable of consenting. Sexual intercourse with an idiot or imbecile is not rape unless the man knows that she is insane or crazy. The conviction was quashed.

INFANTICIDE - Infanticide (or infant homicide) is the intentional killing of children under the age of 12 months

Necessary Ingredients
1-that the deceased child was under the age of 12 months.
2- that the child's death was due to an act or omission on the part of its mother;
3- that at the time of the fatal act or omission on the mother's part, the mother was mentally disturbed

Case;-
R. V. Esther Ikumboka (1967)
Facts
The accused was charged of Infanticide because she killed her born child at circumstances would normally amount to murder but at the time of the incident her mind was not balanced and disturbed as a result of child birth, it was not known when the accused had pregnant and when delivered a child.
Held
The accused not guilty of infanticide but concealing birth

R. V. Evelyne Mathias (1969)
Facts
The accused was charged of infanticide because she threw her new born child in the latrine while the balance of her mind disturbed. No one knew the born of the child who was only discovered in the latrine when it was heard crying. The accused with whom she lived and her parents denied any knowledge of her pregnancy or any childbirth. But medical evidences showed the accused had recently delivered a child
The procecution had to prove that the accused had not only abandoned a child but also intended to cause death.

Concealing A Birth
Concealing a birth is the act of a parent (or other responsible person) failing to report the birth of a child. The term is sometimes used to refer to hiding the birth of a child from friends or family, but is most often used when the appropriate authorities have not been informed about a stillbirth or the death of a newborn. This is a crime in many countries, with varying punishments.

The Offence of Concealing the Birth of a child is created by sections 216 ZPA & 218 TPC

Child Destruction
Child destruction is the crime of killing an unborn but viable foetus; that is, a child "capable of being born alive", before it has "a separate existence"

The Offence of Child Destruction is created by sections 217 ZPA & 219 TPC.
For an Offence of Child Destruction to sustained, there must be proof:
(i) that the woman was about 28 or more week pregnant; and
(ii) the accused, by a deliberate unlawful act or omission prevented the child from being born alive: and
(iii) the accused person's deliberate act was not done in good faith for the purpose only of preserving the life of the mother




BY BARRISTER, MUGISHAGWE KATURA

FIRST YEAR 2nd SEMESTER

2013/2014