20120613 TZHC Dodoma

/ •: . 44f IN THE HIGH COURT OF TANZANIA t'. AT DODOMA (APPELLANT JURISDICTION) (DC) CRIMINAL APPEAL NO. 3 OF 2012 (Original Criminal Case No 13 of 2010 of the District Court of Kondoa District at Kondoa) ATHUMANI MUSSA @ FRANCIST - HI lvi I DI HAi1ADI.. • . .... ..... i..... .J. .. . . ... APP E LLANTS . VERSUS THE REPUBLIC JUDGMENT 231512012 & 131612012 KWARIKO, J: The facts of this case which led to this appeal can briefly be accounted as follows: On the morning hours of 3 January, 2010 one SHAMILA D/O ABUU MAJALA, PW1 found her house door broken and various properties stolen. These properties were mentioned to be one television set make Philips, one mobile phone charger one night torch and one cloth. PW1 reported the matter to her local area (street) Chairman one STUMAI D/O 1 IBRAHIM, PW4 who visited the scene and advised PW1 to report the matter to the police where she complied. Later on, through investigation, on 29/1/2010 the Police received information that at one Said Ndombolo's home there were two television sets suspected of being stolen or unlawfully obtained. When the Police went to the Said house one ASHURA D/O YUSUFU, PW3 the wife of SAID NDOBOLO and 1st appellant's sister-inlaw was there. PW3 informed the police that the television sets had been brought in the house by the 1st appellant who was living with them and had brought the same in the house while they were on safari. PW3 also said that the 15t a pp e Il an t informed her that the property belonged to him and the 2nd appellant. The 1st appellant was arrested and admitted that he had kept the televisions in his home after he had stole the same being in the company of the 2n d appellant. A search of the 1st appellant's home was conducted where two television sets were found in the 1st appellant's room. One No. D .7347 Detective Corporal KICHONGE, PW2 carried out this exercise in the presence of PW3 and PW4. A record of search 'Exhibit PE2 was prepared and duly signed by these witnesses. Thereafter, the 1st appellant was sent to police station where on interrogation he admitted the allegations of being found with 2 the televisions and his Caution Statement was written. In his Caution Statement, Exhibit PE3 the 1st appellant explained that the televisions had been kept with him by the :2 appellant as a pawn after he had given him Tshs. 80,0001=; which he had promised to return on 29/1/2010 and take away the televisions. Before that was done the 1st appellant said, was arrested. The 1st appellant was sent to court with the offence of Burglary contrary to section 294 (2), Stealing contrary to section 265 and Receiving Stolen or unlawfully acquired property contrary.. to section 311 both of the Penal Code Cap. 16 Revised Edition 2002 and later was joined with the 2nd appellant in the 1st and 2nd counts. The two denied the charge where in his defence the 1st appellant testified that whilst was in his usual errands in Kondoa town on 03/1/2010 was arrested by a drunk policeman who could not comprehend anything. He finally said the case against him was not proved by the prosecution. On his part the 2 d appellant wondered in his defence as to the reason for his arrest by the police since' the 1st appellant unreasonably implicated him with the allegations. He complained that the police officers there usually effect unnecessary arrests in order to get money. Lastly, that, he was not found in possession of any stolen property. 3 L In its judgment the trial court found that the offence of Burglary was proved beyond reasonable doubt against both appellants since this offence cannot be committed by one person. However, the offence of Stealing was struck out on account of wrongly preferred as the same had been incorporated in the offence of Burglary. Also, the offence of Receiving Stolen or Unlawfully Obtained Property against the 1st appellant was found not to have been proved by the prosecution. The appellants were thus convicted and sentenced to ten (10) years imprisonment each. The sentence was ordered to run concurrently with another ten (10) years term of sentence meted out against the appellants in another Criminal Case No. 12 of 2010 of the same court. Having been dissatisfied with the trial court's decision the appellants filed this appeal. In their joint Memorandum of Appeal the appellants raised about eight grounds of appeal which raise six essential grounds of appeal as follows; That, the alleged stolen property was not sufficiently identified by the complaint. That, the 1st appellant's house was illegafly searched as there was no any search warrant. ri That, the 1st appellant's confession contravened section 53 (c) (i) (ii) of the Criminal Procedure Act, Cap. 20 Revised Edition 2002. That, the 2nd appellant was illegally convicted on the confession of co-accused contrary to section 33 (2) of Tanzania Evidence Act, Cap. 6 Revised Edition 2002. That, the prosecution case was not :proved beyond reasonable doubt. That, the defence evidence was not considered by the trial court. During the hearing of the appeal at first the two appellants shortly implored the court to considerer their grounds of appeal and allow the same. In reply to this appeal Ms.'Mbunda learned nd State Attorney did not support the 2 appellant's conviction since 1st appellant's evidence that he he was convicted solely on the was his accomplice. That, no any corroborative evidence was 2nd appellant as required under section 33 (2) brought against the of the Evidence Act. As for the 1st appellant Ms Mbunda contended that the charge against him had been proved beyond reasonable doubt 1st appellant first admitted since he admitted his guilty. That, the the allegations before the local area leader and secondly in his Caution Statement before the police which he did not object when 5 the same was tendered in court. And further, the stolen property was found in his house which corroborated his confession. However, Ms. Mbunda submitted that the trial court erred to have held that the offence of Stealing was incorporated in the offence of Burglary since these are two distinct offences and thus the 1st appellant ought to have been convicted separately in that respect. 1st appellant charged In his further reply to the foregoing the that he never confessed these allegations and that the stolen items were not found in his home as he does not own a house 1st appellant's because he lives with his parents. It was the further submission that the trial court erred to have ordered the sentence to run concurrently with that in Criminal Case No. 12/2010 and at a latter stage brought another commitment warrant to separate the two terms of sentences. He said this order prejudiced them. This contention was also supported by the 2 nd appellant and also the learned State Attorney who was given leave by the court to respond. Ms. Mbunda prayed the court to rectify this error. 6 Now, the appellants' grounds of appeal can be answered in their chronological order as follows: In the first ground of appeal which the respondent's counsel did not address, this court is of the opinion that the stolen property exhibit PE1, a television set make Phillips was sufficiently identified by the complainant PW1. The evidence by PW 1 shows that when she got to the police she was asked to describe her stolen television and did so as she said it had a scratch mark. The description marched the one the police had in their custody. Hence the matter was taken to court where PW1 described her property in detail before the same was admitted as evidence. This procedure was correct and the trial court did not err. Thus this ground of appeal is non-meritorious and it is rejected. As for the second ground of appeal which also was not responded to by the learned State Attorney, the court finds the same baseless. This is so because the police had gone to investigate the matter as they had been informed and fortunately the information proved to be true. A search was thus conducted where a record of search was filled and dully signed by witnesses 15t appellant and the house's including the local area leader, the 7 occupier, PW3. No any injustice had been committed in that respect. This ground of appeal is also rejected. In the third ground of appeal which the respondent's counsel did not address, the court, does not agree that section 53 (i) (ii) of the Criminal Procedure Act had been violated. This is so 1st appellant indicated in his cautioii statement that because the he was ready to be interrogated in his own presence. He did not indicate that he wished his advocate, relative or friend to witness 1st appellant had any the interrogation. After all, if the reservation about the caution statement or interrogation he should have raised the same during the trial when the court afforded him opportunity to say anything in that respect. The 1st appellant twice if the statement was his trial court asked the and he replied that it was really his own statement. Why the objection at this appellate stage? The answer to this question is that this is an afterthought. This ground of appeal is also rejected. As for the fourth ground of appeal this court agrees with both parties that the 2'' appellant was convicted solely on the co-accused's evidence contrary to section 33 (2) of the Evidence Act, (supra). There was no any corroborative evidence against 8 the 2nd appellant as per the requirement of the cited law, (see also PASCAL KITIGWA VR f1994J T.L.R. 65). After all, the 1st appellant denied the charge and his evidence in court did not say that he committed the offence and the 2 nd appellant was his accomplice. If anything it is the 11t appellant's confession that the court could have relied upon which unfortunately did not say that the 1st appellant committed the alleged burglary and stealing and the 2nd appellant was his accomplice. The statement by the 1st appellant is to the effect that the 2nd appellant had pawned the two television sets for Tshs 80,000/= from him which he was waiting to be refunded before he was arrested. If any, the 2 nd appellant ought to have been convicted in that line. This ground of appeal is allowed. As for the fifth ground of appeal that the prosecution case was not proved against the appellants beyond reasonable doubt, I have already herein above decided the matter in respect of the 2nd appellant. As for the 1st appellant, this court is of a different opinion from the trial court and the learned State Attorney as far as his conviction is concerned. The following answers my contention: There is no any evidence by the prosecution which is to the effect that the 1st appellant was found breaking the complaint's house at night and stealing the said property. The prosecution witnesses testified that the 1st appellant admitted the allegation of breaking at night and stealing but there is no any proof to that effect. 1st appellant had One would have expected that, if at all the admitted the allegations he must have explained how the breaking and stealing had been committed Jn his Caution Statement (Exhibit PE3). To the contrary the 1st appellant's statement shows that the stolen property was brought to him by the 2nd appellant as a pawn (rehani) for Tsh. 80,000/= which he gave him. This evidence was far from proving the offence of burglary or stealing. Because the said property (exhibit PE2) was proved to be a stolen property which was found in possession of the 1st appellant more than three weeks later after the same had been stolen, a doctrine of recent possession could not have been applied as a long time had passed where such property could have changed hands from the burglar and thief to the 1st appellant. Therefore, the 1st appellant ought to have been convicted of the offence of Receiving Stolen or Unlawfully Obtained Property 10 contrary to section 311 of the Penal Code He is hereby convicted as such. Thus, the fifth ground of appeal succeeds to that extent. In the last ground of appeal the appellants complain that their defence evidence was not considered by the trial court. Again, this complaint was not addressed by the learned State Attorney. I have gone through the trial court's judgment and found that it is true that the defence evidence was not considered especially that of the 2111 appellant who complained that he was unreasonably arraigned before the court for being mentioned by his co-accused. This fact was not considered by the trial court. It amounted to a denial of.fairhearing which is a constitutional right enshrined also in our United Republic of Tanzania Constitution (Article 13 (6) (a) it is fortunate that the 2nd appellant's appeal has succeeded otherwise this omission was a fatal one which vitiated the decision in his respect. As for the 1st appellant, his defence had no substantive issue for consideration though the same as a matter of right ought to have been considered; nonetheless, the omission did not prejudice his case. This ground of appeal is answered in the affirmative. 11 The other issue that was not raised in the grounds of appeal but both parties had an opportunity to canvass it during the hearing of the appeal is the trial Magistrate's order that the sentence in this case to run concurrently with the other sentence in Criminal Case No. 12 of 2010 of the same Court and same parties. As rightly submitted by the learned State Attorney, such order could only be legally tenable if the two cases had been in the same, case file and same charge albeit different counts before the same Magistrate (see Section 168 of the Criminal Procedure Act, Supra). Thus; this order was illegal and it is hereby quashed. The trial Magistrate did not end there. As the record shows, he rectified the said error SUO mottu when he cancelled the same thus separating the sentences at a latter stage. This rectification could only be done by a higher court as I have herein above done. Thus, this order is quashed and set aside. Finally, I agree with the learned State Attorney that it was an error on the part of the trial Magistrate to 1 have ruled that the offence of Stealing was wrongly preferred separately since the same is incorporated in the offence of Burglary. These are two distinct offences which should be preferred differently. The offence of Burglary only explains the act of illegal breaking a 12 dwelling house at night and committing an offender therein. It does not specify or mention any offence which may have been committed after the breaking in. If a breaking is committed the offence can commit any offence not necessarily stealing. Thus, the offence committed after the breaking should be preferred separately as it was in this case. The trial Court's order thus to consolidate the two offences is hereby quashed. Also, conviction of the 1st appellant in relation to the offence of Burglary is quashed and sentence set aside. 1st appellant has been convicted of the Consequently, the offence of Receiving Stolen or Unlawfully Obtained contrary to section 311 of the Penal Code which carry a maximum of ten years imprisonment. The appellant being very young is sentenced to the time already served since his conviction before the trial court on 12/8/2010. 1st appellant's appeal has succeeded to the Therefore, the 2d appellant's appeal is extent explained above whereas the entirely allowed. His conviction quashed and sentence set aside. 13 Thus, the appellants are ordered to be.set. ,.at liberty unless otherwise lawfully held. it is so ordered. Court: Rights of Appeal fully explained. AKO) JUDGE 13/6/ 2012 DELIVERED AT DODOMA . 13/6/2012. Appellants: All Present. For Respondent: Mr. Kyando State Attorney. C/c: Miss Komba. 2E - \\ KWARIKO) ' ( T' ' U 'G E 2 14