amrani ramadhani mohamed chema vs republic 2023 tzhc 16062 7 march 2023

IN THE HIGH COURT OF TANZANIA (SONGEA DISTRICT REGISTRY) AT SONGEA DC. CRIMINAL APPEAL NO.49 OF 2022 (Originating from Criminal Case No. 22 o f2022, Nyasa District Court) AMRANI RAMADHANI MOHAMED @ CHEMA........... ...... APPELLANT VERSUS THE REPUBLIC ......... .... ................ ......RESPONDENT JUDGMENT 3/03/2023 & 07/03/2023 E. B. LUVANDA, 3 . The accused person named above was tried for the offence of burglary contrary to section 294(l)(a) and (2) being count number one; stealing contrary to section 258(1) and 265 count number two and possession of goods suspected of having been stolen contrary to section 312(l)(b) being count number three, in alternative to count one and two) all three counts were charged under the Penal Code [Cap 16 Revised Edition 2019]. Surprisingly, when the accused person (appellant herein) was arraigned before the trial court, he was not invited to take plea on explanation that the court did not have jurisdiction. Fortunate this fatal mistake was remedied in future at the preliminary hearing when accused's plea was taken and he pleaded not guilty to all three counts. However, on the memorandum of facts, the accused person admitted a fact that he was found in possession of the goods suspected of having been stolen. After full trial the accused person was found guilty, convicted and sentenced to serve twelve years imprisonment for count number one and seven years imprisonment for count number two. The sentence was ordered to run concurrently. In the petition of appeal, the Appellant raised eight grounds of appeal, thus; 1. The trial court erred in law and in fact when it convicted the Appellant herein while there is variation between the charge and evidence brought before it. 2. That the trial court erred in law and in fact when convicted the Appellant based on the weakness of the defence rather on the strength of the prosecution case. 3. That the trial court erred in law when it failed to consider the defence offered by the Appellant in regard to the explanation on how he came into possession of the said properties suspected to have been stolen. 4. The trial court erred in law to invoke and rely on the doctrine of recent possession despite the fact that all elements of the principle laid down were not proved. 5. That the trial court erred in law and fact to rely its conviction based on the tendered properties purported to be stolen while chain of custody of the seized items from the moment they were seized and how it reached in the court during trial was not established. 6. That the trial court erred in law and fact when it convicted the Appellant herein while the prosecution failed to prove its case beyond reasonable doubt. 7. That the trial court erred in law and fact when it convicted the Appellant herein based on defective charge. 8. The trial court erred in law and fact to decide the matter brought before it contrary to the law. Mr, Zuberi Maulid, learned Advocate for appellant filed submission in chief and Ms Tumpare Lawrence, learned State Attorney for the Respondent (the Republic) made a reply in writing. The learned Counsel for the Appellant abandoned ground number seven, he submitted on the first, second, third, fourth and sixth grounds in consolidation, ground number five and eight were argued separately. The learned Counsel for Appellant started with the first, second, third, fourth and six grounds that, the prosecution failed to discharge it is duty to prove beyond reasonable doubt that the accused committed the offence because the prosecution evidence does not support the charge, it is contradictory, weak evidence and create a lot of doubts. The Counsel for the Appellant submitted further that, for the offence of burglary to be proved, the prosecution must prove that there is breaking and entering into any building* two, must be proved that it was committed during the night and three, the accused intents to commit it. But the Counsel was of the view that the evidence adduced and charge sheet failed to prove these elements of the offence, in that there is no witness who proved to have seen the Appellant breaking and entering. No one saw the accused at the scene, even PW1, PW2, PW3 at no time witnessed the accused breaking and stealing apart from witnessing search only. The learned Counsel submitted that even the element of intention to break, mens rea and fraudulent for stealing were not proved, given that the Appellant offered reasonable explanation that he was just an innocent receiver. He submitted that the stolen, seized property is not the same because PW1 said a mattress was orange colour, while PW2, PW3, PW4 and PW5 said it was pink. He submitted that the charge sheet is at variance with the testimony of PWl, a charge indicate the offence was committed on 22/8/2022, PWl said it was stolen on 23/8/2022. He submitted that the contradiction creates doubt considering the property was seized on 29/8/2022. To his view, in the circumstances, it was improper to invoke the doctrine of recent possession. He cited Marwa Chacha @ Robare vs Republic, Criminal Appeal No. 133 of 2020 CAT at Musoma. He submitted that a doctrine cannot be invoked where a reasonable explanation has been offered by the appellant that he was just an innocent receiver, received from Shukrani @ Machaveli. He cited the case of George Edward Komowski vs Republic, (1948) 1 TLR 322 As for the ground number five, the Appellant Counsel submitted that, the nature of the properties can change hands easily. In this case the chain of custody was not established from seizure up to when were tendered in court. That the seizure was done by PW5 who appeared to testify after a mattress was already tendered by PW1. Coming to the ground number eight, the Counsel for the Appellant submitted that the sentence imposed to the Appellant who is aged 24 years, was excessive. The Counsel beseeched the court to make re- evaluation of the trial court evidence and allow the appeal. In reply, the learned State Attorney, for ground number one submitted that, the Appellant was charged for burglary, stealing and possession of stolen properties as ah alternative count. The learned State Attorney submitted that neither PW1 nor PW2 saw the thief who burgled the house of PW1, but DW1 admitted to be found with stolen goods. She referred this court at pages 26 to 27 of the typed proceedings. On the second ground, the learned State Attorney submitted that the trial court convicted the Appellant based on the strength of prosecution evidence and not on weakness of defence. That the prosecution relied on the evidence of PW1, PW2, PW3, PW4, PW5 to prove their case. PW2 saw the Appellant escorted by police while carrying different properties including a mattress of PW1. PW3 said the accused was found with stolen goods in his room. Arguing for the third ground, the learned State Attorney submitted that the trial court considered the defence of the Appellant on how he come in possession of the said stolen property, that it was handed to him by Shukuru @ Machaveli who borrowed Tsh 370,000 but the Appellant did not summon the alleged Shukuru @ Machaveii. However, the learned State Attorney submitted that this Court has power to re-evaluate and consider the evidence and make decision as stated in the case of Alex Mwashilindi vs Republic, CD Appeal No. 94 of 2020 which cited the case of Prince Charles Junior vs Republic, Criminal Appeal No. 25 of 2014. Ground number four, the learned State Attorney submitted that, the trial court was correct to invoke the doctrine of recent possession and all elements were proved. The learned State Attorney cited the case of Joseph Mkubwa Samson Mwakagenda v. Republic, Criminal Appeal No. 94 of 2007, High Court of Tanzania at Mbeya. The learned Sate Attorney submitted that the mattress of PW1, allegedly to be recently stolen were found to the Appellant and the same property was subject of a charge against the Appellant. As for the ground number five, the learned State Attorney cited the case of Jason Pascal vs Republic, Criminal Appeal No. 615 of 2020 in which the case of Paulo Maduka and Another vs Republic, Criminal Appeal No. 110 of 2007 (unreported), was cited with approval. She submitted that in relation to items which cannot change hands easily and therefore not easy to be tempered, the principle can be relaxed as stated in the case of Issa Hassan Uki vs Republic, Criminal Appeal No. 129/2017. That herein the principle can be relaxed since item couldn't change hands easily. That PW5 seized where PW4, PW3 and DW1 signed the certificate of seizure. She submitted that it is obvious that PW5 after seizure kept the properties. Coming to the ground number six, the learned State Attorney cited the case of Miiburn vs Regina, (1954) TLR. She reiterated her argument that PW2 testified to have seen the Appellant carrying the mattress while under police escort, which mattress was identified by PW1. PW3 said he saw the Appellant with stolen property inside his room. Ground number eight, the learned State Attorney opined that the trial court decide the matter according to the law. The appellant was charged for burglary, stealing and possession of stolen goods. That the law prescribe seven years for stealing and twenty years for burglary, where the court sentenced him 12 years after considering that the Appellant was a first offender with dependants. The learned State Attorney prayed this appeal be dismissed. It is a cardinal rule that every cases should be decided on its own facts and merits. Herein, the Appellant confessed to have been arrested in possession of a mattress exhibit PEI, on the explanation that he received from one Shukuru Machaveli who borrowed Tsh 370,000 and placed ait as a security. According to the Appellant he received it on 29/08/2022 at around 02.00 to 03.00 hours. No explanation were offered by the Appellant as to why the handing over and receiving was done at deadly night. Of course one could argue that by the way it was not his duty to prove, rather to cast doubt on the prosecution story. The evidence of the prosecution on the other hand alleged the mattress was stolen on 23/08/2020 as per the testimony of Timothy Mashaka Haule (PW1). According to PW1, on 22/08/2020 he closed his salon at 22.00 hours and went to Weather Pub to watch a football match where he met PW2 who said they were drinking beer at the said pub. PW1 revealed the mattress missing on 23/08/2020 at 00.45 hours when he resumed back home. However, as alluded by the learned Counsel, the testimony of PW1 was vague, in a sense that he did not explain as to when or which date he lastly departed at his home, neither stated an exact time of departure. In the context, it is unknown at what time breaking and stealing occurred let alone as to who committed the same. This by it self make charge to be at variance with the evidence. Importantly, a charge sheet in particular counts number one, the statement of offence mentioned offence of burglary. In the said count, in the particulars of offence time for commission of offence was not disclosed, neither mentioned it being committed at night, nor the word burgle was pleaded. Rather the particulars of offence depict a mere breaking of a dwelling house. To my view breaking alone does not necessarily mean burglary, as breaking can be committed either at night or day time. It is elementally knowledge that burglary is only said to have been committed only if the offence of house breaking was committed in the night. For easy of reference, I reproduce section 294, of the Penal Code, CAP 16 R.E. 2019, "Any person who - (a) break and enters any building, tent or vessel used as a human dwelling wit Intent to commit a felony therein, or (b) ... NA.... is guilty o f the felony termed '"house breaking" and is liable to imprisonment for fourteen years I f the offence is committed in the night, it is termed ”burglary" and the offender is liable to imprisonment for twenty years." As I have said above, the charge sheet did not disclose the necessary information for the offence of burglary, in that it is silent as to whether the alleged breaking was committed in the night or day time. This is fatal. Indeed, the evidence presented by PW1 that he found the padlock Solex 10 model damaged, door of his house ajar and properties to wit cash Tsh 280,000 and mattress of Supper Banko 5X6 stolen, at about 00.45 hours on 23/08/2022, was open ended, as he did not depict date and time of last departure at his home. The position is now settled that variance in the particulars of the offence vis-a-vis an un-amended charge sheet it renders the charge or count for that matter, as good one as unproved. In the case of Abel Masikiti vs Republic, Criminal Appeal No. 24 of 2015, CAT, the Court had this to say, I quote, "If there is any variance or uncertainty in the dates then the charge must be amended interms o f section 234 o f the CPA. I f this is not done, the preferred charge w ill remain unproved and the accused shall be entitled to an acquittal." For this reason, the charge or count for burglary and stealing, flop. Therefore, the conviction in respect of the offence of burglary specifically count number one and stealing count number two in the charge sheet, are quashed and sentence of twelve years and seven years imprisonment, respectively, is set aside. ii Ground number five, the learned Counsel for Appellant submitted that a chain of custody for properties from seizure to the stage of tendering was not established and that the nature of those properties can change hand easily. The learned State Attorney responded that PW5 after seizing the properties he preserved and tendered them in court. The argument of the learned State Attorney is misleading, nowhere DCPL Edwin (PW5) explained that he was the custodian of the seized exhibit, even at preface PW5 did not say that he is an exhibit keeper at Nyasa Police Station. PW5 did not tender mattress exhibit PEI, rather was tendered by PW1, PW5 only tendered a certificate of seizure exhibit PE2. PW1 did not lay a foundation on how mattress landed into his hands at the time of tendering before the trial Court. In fact the chain of custody was not established at all. However, I wonder if the issue of chain of custody can be inferred to an object whose ownership and possession is not in dispute. The Appellant admitted to have been in possession of the mattress exhibit PEI and ownership by PW1 was not challenged. To my view it is superfluous and redundancy to entertain it in the circumstances. 12 When arguing for ground number three, the learned State Attorney technically invited me to re-evaluate and consider the evidence and make decision, as stated in the case of Alex Mwashilindi (supra). The records of the trial court reveal that the Appellant was charged for possession of goods suspected of having been stolen contrary to section 312(l)(b) of the Penal Code [Gap 16 Revised Edition 2019, being count number three, in alternative to count one and two. The said possession was pleaded to have been committed on 29/08/2022. At the preliminary hearing and on defence, the Appellant admitted to a fact that he was in possession of a mattress Supper Banko.. Section 312(l)(b) Capl6 (supra), provide, 'Any person who- (a)...N.A... (b) is found by a police officer in possession o f or having controi over any property which may, having regard to a ll the circum stancesbe reasonably suspected o f having been stolen or otherwise unlawful acquired, may be charged with being in possession of...if he falls to satisfy the Court that he did not stealor unlawful acquired the property, be guilty o f the offence with which he is charged and be liable, on conviction, to imprisonment for a term not exceeding three years' Herein, the defence relied by the Appellant is that he received the same form one Shukuru @ Machaveri. But considering the time for receiving which was on deadly night at around 02.00 to 03.00 hours, but it self draw an inference that the mattress was unlawful acquired. Therefore, the Appellant is found guilty for possessing a stolen mattress and is accordingly convicted under section 312(l)(b) Cap 16 (supra). To sum up, the conviction for the offence of burglary and stealing is quashed and sentence of twelve years and seven years, respectively, set aside. The Appellant if convicted for an alternative count of possessing stolen property, and is sentenced to three years imprisonment which will commence to run from the date of conviction. Appeal partly allowed. >> 14