amran ramadhani mohamed chema vs republic 2023 tzhc 15662 24 february 2023

IN THE HIGH COURT OF TANZANIA (SONGEA DISTRICT REGISTRY) AT SONGEA DC. CRIMINAL APPEAL N0.48 OF 2022 (Originating from Criminal Case No. 23 o f2022 Nyasa District Court) AMRANI RAMADHANI MOHAMED @ CHEMA.............................APPELLANT VERSUS THE REPUBLIC.....................................................................RESPONDENT JUDGMENT 15/02/2023 & 24/02/2023 E. B. LUVANDA, J. The accused person was arraigned before Nyasa District court (herein after the trial court) for seven counts thus; burglary contrary to section 294 (1) (a) (2) (count number one, three and five); stealing contrary to section 258 (1) and 265 (count number two, four and six; and one count possession of the goods suspected of having been stolen contrary to section 312 (1) (b) (count number seven, in alternative) all seven counts were charged under the Penal Code [Cap 16 Revised Edition 2019]. The accused pleaded not guilty for all counts pertaining to burglary and stealing. However, the accused person pleaded guilty for the offence of being found in possession of the goods suspected of having been stolen. i After full trial the accused person was found guilty, convicted and sentenced to serve twelve years imprisonment for each in respect of countnumber one, three and five and seven years imprisonment for each to wit count number two, four and six. The sentence wasordered to run concurrently. Being aggrieved with both the conviction and sentence, the Appellant filled his petition of appeal comprises 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. The Appellant was represented by Mr. Zuberi Maulid, learned Advocate and Ms Tumpare Lawlence, learned State Attorney appeared for the Respondent (the Republic). 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 separately. The learned Counsel for Appellant started with the first, second, third, fourth and six grounds that, the prosecution failed to prove the offence. He submitted that it is the duty of the prosecution to prove beyond reasonable doubt that the accused committed the offence and the accused duty is merely to cast doubt and not to prove his innocence. He cited the case of Mohamed Said Matula v. Republic (1995) TLR 3 to support his argument. The Counsel for the Appellant submitted further that, the Appellant was charged with seven counts, all comprising stealing and burglary, and seventh count was an alternative count for being found in possession of property suspected to have been stolen. It is the Counsel contention that, for the offence of burglary to be proved; one, the element of breaking and entering has to be proved; 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 PW9 testified that he did not saw the person who break and steal his property. The learned Counsel for the Appellant insisted that even for the rest witnesses, PW2 to PW9 no one adduced to have seen the accused breaking and stealing properties. No evidence adduced as to how the house were broken. The learned Counsel invited the court to consider the second element that the offence was committed during the night. He referred the court to the charge sheet and submitted that, in particulars of the offence it was not explained at what time it was committed. It is the Counsel's view that to prove burglary time is crucial as it differentiate burglary and other offences, but in a charge sheet particular of the offence failed to disclose time for committing the offence, even witnesses failed to prove time. The learned Counsel mentioned PW1 that he did not reveal at what time his properties were stolen or at what time he slept. That PW2 at page 11 was not aware as to when it was committed, PW3 at page 13 does not reflect time of occurrence or at what time she was phoned a call. 5 The learned Counsel added that, the rest of the witnesses explained nothing regarding time and intention to commit the offence. It is the learned Counsel view that the prosecution failed to prove mens rea to commit the offence, taking into account this element is interwoven with breaking and entering. The Appellant's Counsel insisted that, for the offence of stealing in the rest of the counts, it was not proved because asportation and mens rea were not proved, in that no witness saw the Appellant breaking, entering and stealing, he contemplated that the prosecution failed to prove those properties alleged to be stolen properties if were stolen by the Appellant. The learned Counsel insisted that, the two elements were not proved that is asportation and mens rea, considering that in his defence the Appellant explained to be innocent receiver, received from Shukuru @ Machaveri. The learned Counsel submitted that, even some of the prosecution witnesses conceded to have seen Shukuru Machaveri handing over the properties to the accused. It is the Counsel's opinion that, the evidence does not support the charge rather is marred with contradictions which ought to be ruled in favour of the Appellant for him to be acquitted. That the Trial court convicted without t considering that the evidence did not prove burglary and stealing. 6 The Appellant's Counsel added that a charge and evidence failed to prove the doctrine of recent possession. He submitted that there are four conditions which has to be met to invoke recent possession. The Counsel believes that those condition were not met. He supported his submission with the case of Bulungu Nzungu v. Republic, Criminal Appeal No. 39 of 2018 Shinyanga, from page 9 and 10. The learned Counsel submitted that those people to whom he alleged to have purchased from were not summoned and did not tender receipt or loss report if receipts are missing. The learned Counsel submitted that, PW4 differ with PW1 on price, but PW1 did not mentioned PW4 being among people who sold to PW1 properties. PW2 at page 11 and 13 alleged to have purchased from Machinga who was not summoned even a receipt not tendered. PW3 at page 14, people to whom he purchased was not summoned, receipt not tendered or a loss report. It is the Counsel observation that, PW5 who was summoned to support PW3, at page 19, alleged to be his (PW5) customer, but PW3 mentioned a different person. The Counsel opined that the evidence is contradictory in nature. He submitted that prosecution failed to prove ownership of PW2 and PW3. He added that they identified the properties after seizure, no one identify them before. Even the condition of recent stealing PW1, 2 and 3 failed to prove that they owned those properties and they were stolen from them, rather they resurfaced after seizure. The law provides that a person can be convicted if he failed to offer reasonable explanation regarding his possession. He cited the case of George Edward Komowiki v. Republic (1948) 1 TLR 322. The learned Counsel reiterated his argument that the Appellant is an innocent receiver, he received from Shukuru @ Machaveri in the presence of Abdallah Msuku (landlord). He submitted that even some prosecution witness conceded seeing that person handing over those properties to the Appellant. The Counsel for Appellant submitted that the Appellant explained justification of receiving that, Shukuru @ Machaveri asked for a loan of TZs 270,000/=which he gave to him and Shukkuru placed those properties as security. It is the Counsel opinion that the the prosecution failed to prove stealing and burglary. As for the ground number five, the Appellant Counsel submitted that, the nature of those properties can change hands quickly. In this case the seizure shows properties were seized, but no evidence was tendered to show those properties as to where were preserved from seizure to tendering in court. He submitted that proceedings suggest that those properties were in the hands of the prosecutor, but it is unknown as to where were procured. 8 Coming to the ground eight, the Counsel for the Appellant submitted that the trial court decided against the law to sentence the Appellant seven years which is a maximum for that offence, considering that, the Appellant is a first offender. The Counsel added that, even if he was convicted, the sentence is on the high side, even for burglary convicted him 12 years. It is the Counsel view that the sentence has nothing to save the Appellant. The sentence must be a lesson to the accused and the society for the accused to be reformed. The Counsel beseeched the court to make re-evaluation of the trial court evidence and allow the appeal. In reply, the learned State Attorney, submitted ground number one and two together. She argued that, the Appellant was convicted for burglary, stealing and possession of stolen properties. The learned State Attorney referred this court at page 10 to 33 of the typed proceedings which revealed that the Appellant was found by PW7 entering with stolen properties on a fence on a rear of a house, where PW7 asked the accused to exit outside his room but the accused refused. She submitted that PW8 explained that the Appellant was found with stolen properties, 2 TV 3 radio 2 adapter, ironing, inventor, one fan, 2 mattresses and three remotes. The learned State Attorney submitted further that, the Appellant mentioned PW1, 2 and 3 as the owner of those properties. 9 PW1, 2, and 3 adduced marks of their properties found to the Appellant. PW1 was quoted said that his TV was damaged on the right hand side and bear his name written by a nail. And PW2 also explained his mark. It is the learned State Attorney view that, the Appellant admitted to have stolen those properties. That the Appellant admitted to have been found in possession, he alleged belong to his friend Shukuru @ Machaveri whom he did not summon. The learned State Attorney submitted that the Appellant did not cross examine all prosecution witnesses, as such the Appellant admitted the charge against him. She cited the case of George Mboga v. The Republic, Criminal Appeal No. 327 of 2013, High Court of Tanzania at Mwanza at page 4. Ground number three, 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 elaborated that, PW1, 2, and 3 their properties were stolen and all properties were found to the Appellant and the same properties were subject of a charge. 10 As for the ground number five, the learned State Attorney argued that, at pages 29 to 30, PW9 after seizing properties he preserved them and tendered them before the trial court. The learned State Attorney submitted that in the circumstances those things were in possession of PW9 who tendered them. Coming to the ground number six, the learned State Attorney submitted that, the prosecution side used the evidence of PW2 to 8 to prove its case. PW7 saw the Appellant entering a house via a rear fence with properties. PW9 said the Appellant was found in possession of properties which were identified. Ground number eight, the learned State Attorney opined that the trial court was correct to decide the charge per the law, for stealing and burglary where the court sentenced him with 7 years for stealing and 12 years for burglary which is a lesser sentence compared to 20 years prescribed in the law. The learned State Attorney prayed this appeal be dismissed. In his rejoinder the Counsel for the Appellant submitted that the alleged features or identical mark does not support a charge and seizure certificate, as are not reflected there, as such these features does not correspond properties in question. The learned Counsel submitted that it li is not true that all prosecution witnesses were not cross examined, as alleged, PW6, PW5 was cross examined. The learned Counsel has a view that not any failure to cross examine can warrant the accused to be convicted, rather if he fail to cross examine on important matters, also failure to cross examine does not shift the burden of prosecution to prove beyond reasonable doubt. The Counsel for the Appellant submitted further that, the prosecution placed burden to the accused that he failed to summon Shukuru @ Machaveri. The duty of the accused is to rise doubt therefore it was the duty of prosecution to summon Shukuru to disprove. The learned Counsel submitted on ground five that, PW9 appeared to testify after those properties were tendered in court. That, the prosecuting officer said PW7 saw the Appellant conveying properties via back door on the rear, but PW7 said the accused was in company of Shukuru @ Machaveri. This does not prove that he accused is the one who break and steal. The alleged rear door, there is no evidence to show connection that it is unlawful entry. The Counsel insisted that the prosecution failed to prove the charge and prayed the appeal to be allowed. On my part I will start with ground number two and three. The learned Counsel for Appellant grounded that the Appellant was convicted based 12 on the weak defence and that the trial court failed to consider the defence offered by the Appellant who explained to have received the stolen properties from one Shukuru @ Machaveri as a security for a loan. This ground is without substance. It is in record of the trial court that during preliminary hearing the accused admitted a fact that he confessed to the police that the stolen properties were kept at his house. And he confessed to have been found in possession of those stolen properties to wit two television, four radios, solar power inventor, two flash, electric iron, table fan, three remote control, five speaker and two mattresses. Before commencement of his defence, the Appellant pleaded guilty to the offence of possessing stolen properties. Again, Edward Aloyce Nombo (PW7), stated that at around 02:00 to 03:00 hours on 29/8/2022, he saw the Appellant and one Shukuru @ Machaveli entering inside the fence of a house of Mwl. Abdallah Khalifa Mruku (PW6), through a backyard of a house, while carrying television and radio and conveyed it into the house of the Appellant. Thereafter, when PW7 was trying to enquire the Appellant, that he (PW7) suspect those properties being tainted with illegality for reason as to why the accused and colleague conveyed them into the Appellant 13 house through illegal entry at the rear of a house (burgled one) instead of a main gate, which shortly before, PW7 was shocked on seeing it being forcefully opened by unknown person. The above evidence portray that the Appellant was not a mere innocent receiver as alleged, rather an accomplice to the stealing. Ground number four. The learned Counsel for the Appellant submitted that the prosecution failed to prove the doctrine of recent possession as elucidated in a case of Bulungu Nzungu {supra). In that the condition for ownership was not met, as the complaint failed to prove ownership of those properties. This ground is unmerited. It is in record that Simon Matembo Mputa (PW1) identified his properties by identical mark as follows: a television (exhibit PEI) damaged on the rear right hand, at the bottom reflect his name Simon Matembo written by nail, a radio (exhibit PE2) was subwoofer bears his name Simon Matembo, the inventor (exhibit PE3) also reflect his name Simon Matembo, a flash (exhibit PE4) black colour 8 GB. On the other hand, Meshak Fande Haule (PW2) identified his radio (exhibit PE5) by black and blue colour on the right and left side, manufactured by Iron. Grace Eliya Kayani (PW3) identified her television (exhibit PE6) by identical mark that there is a nylon, at a rear she marked it by a marker pen, red in colour, a radio (exhibit PE7) is Aborder model, she marked by a red line of a marker 14 pen, a flash (exhibit PE8) contains a mixture of songs of religious, bongo flavour and Taarabu, and remarked that all her goods were black in colour. Now, I wonder as to why the learned Counsel for Appellant raised up this ground. In the case cited to wit Bulungu Nzungu (supra), at pages 5 to 6, the apex Court ruled in reference to applicability to a doctrine of recent possession, I quote, "In law for that doctrine to be relied upon in order to archive a valid conviction, four conditions must be fulfilled as it was stated in the case o f Mkubwa Mwakagenda vs Republic, Criminal Appeal No. 94/2007 (unreported). The conditions can be gathered from the following observation o f the Court in that case, that: "For the doctrine o f recent possession to apply as a basis o f a conviction, it must be proved, first, that the property was found with the suspect, second, the property is positively proved to be the property o f the complaint; third, that the property was recently stolen from the complainant and lastly, that the stolen thing constitutes the subject o f the charge against the accused." Herein, the impugned properties were found in possession of the Appellant. PW1, 2 and 3 proved ownership by identical marks, which the accused accepted as he did not bother to cross examine on its veracity; the said properties were indeed recently stolen from the complainants to 15 wit PW1, 2 and 3, as were alleged to have been stolen on 29/8/2022, and were seen by PW7 in possession of the Appellant on the same date at around 02:00 to 02:00 hours, which is not only recent, but immediate after stealing. My undertaking is premised on a fact that PW1, discovered his properties to be missing at 02:20 hours on 29/8/2022. 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 PW9 after seizing the properties he preserved and tendered them in court. The argument of the learned State Attorney is misleading, nowhere DCPL Edwin (PW9) explained that he was the custodian of the seized exhibit, even at preface PW9 did not say that he is an exhibit keeper at Nyasa Police Station. Indeed PW9 only tendered a radio subwoofer make Aborder exhibit PE 11, electric iron exhibit PW12 table fane exhibit PW13, and mares exhibit PE14. The records reflect that exhibit PEI to P4 inclusive were tendered by PW1; exhibit PE5 was tendered by PW2; exhibit PE6 to PE9, inclusive were tendered by PW3. The triplets did not explain on how they re-procured into their possession at the time of tendering before the trial Court. 16 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 them and ownership by PW1, 2 and 3 was not challenged. To my view it is superfluous and redundancy to entertain it in the circumstances. For ground number one, six and eight. As elucidated by the learned State Attorney that the Appellant was convicted for burglary, stealing and passion of stolen properties. The learned Counsel for Appellant submitted that the charge sheet and particulars of offence, does not explain at what time it was committed. He submitted that to prove burglary time is crucial as it differentiate burglary and other offences. The learned State Attorney commented nothing. It is true that the charge sheet in particular counts number one, three and five the statement of offence mentioned offence of burglary. In the said counts, 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. To my view breaking alone does not necessarily mean burglary, as breaking can be committed either at night or day time. 17 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, in a sense that it rendered a charge to be at variance with the evidence presented by PW1 that he found the door of his house burgled and properties stolen, at about 02:20 hours. For another thing it prejudiced the accused to prepare a theory of a defence in line with the particulars of offence. Even the facts of the case at the preliminary 18 hearing did not indicate time for the commission of breaking, neither stated if it was in the night or day time. 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 wiii remain unproved and the accused shall be entitled to an acquittal." In that way it cannot be said that he offence of burglary was proved on the required standard. Therefore, the conviction in respect of the offence of burglary specifically count number one, three and five in the charge sheet, is quashed and sentence of twelve years imprisonment to each respective count, is set aside. The appeal in respect of conviction and sentence for the rest counts, to wit count number two, four and six is upheld, remain undisturbed. Therefore the Appellant will carry a sentence of seven (7) years for each count which will run concurrently. 19 Appeal partly allowed.