Baraka Judgment 1

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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUB-REGISTRY OF GEITA

AT GEITA CRIMINAL APPEAL NO. 18648 OF 2024 (Arising from Criminal Case No.38883 of 2023 in the District Court of Mbogwe at Mbogwe) BARAKA JUMANNE JAPHAL…………………………………………...APPELLANT

VERSUS REPUBLIC………………………………………………………………RESPONDENT

JUDGMENT Date of last Order: 01/08/2024 Date of Judgment: 09/08/2024 MWAKAPEJE, J.: The appellant herein was aggrieved by the decision of the District Court of Mbogwe in Criminal case No. 38883 of 2023, which was delivered on 20th May 2024. The appellant was charged with stealing contrary to sections 258(1) and 265 of the Penal Code Cap. 16 R.E.

2022. After the trial, he was convicted and sentenced to 3 years imprisonment. The brief facts of this appeal are thus: on 21 November 2023, the appellant engaged the services of a motorcycle (bodaboda) rider named Bahati Ramadhan (PW2) to transport him to the Kanegere mines. They journeyed to Kanegere on a motorcycle bearing registration MC 497 DLW, model sun LG, owned by Masumbuko Magenta. Page 2 of 10 While at Kanegere, PW2 parked his motorcycle outside the premises where he was having breakfast, only for the appellant to abscond with it. Subsequently, on 27 November 2023, one Daudi Deus Kazungu (PW3) saw the appellant riding the stolen motorcycle in Msalala village. This sighting led to the appellant's apprehension and, subsequently, charged with stealing. During interrogation, the appellant denied the commission of the said offence. The prosecution paraded five witnesses to prove the offence. From the said witnesses, especially the testimonies of PW2, the motorcycle rider and PW3, who arrested the appellant, the trial District Court, having examined the evidence, concluded that the prosecution had convincingly established the appellant's guilt beyond any reasonable doubt, resulting in his conviction and sentencing. Discontented with the trial court's findings, the appellant has sought recourse in this court, articulating six grounds of appeal as follows: 1. That the trial

Court Magistrate erred in law and fact by not considering that at the time and date of the alleged offence of stealing, he was not at the place where the motorcycle was found and the evidence that he tendered to the court a bus ticket as Exhibit, it was admitted and marked DE1, but surprisingly s.194(4) of The Criminal Procedure Act Cap 45(R.E 2022) was not complied with by the trial court magistrate with no detailed explanation to that. Page 3 of 10 2. That the trial court Magistrate convicted me with no evidence of stealing, as there was no Certificate of Seizure nor proof that he was arrested at Kalumwa with a suspected stolen Motorcycle. Hence, procedural irregularity.

3. That the defence (DW1) was not considered by the trial Court magistrate, which is against the law, and she relied on the prosecution evidence.

4. That the particulars of the offence and the evidence on records did not disclose the offence as far as there is no evidence that shows he was arrested with a motorcycle, no proof of a certificate of seizure, nor the police suspect's admission book that shows he was at Kalumwa Police station after arrest on the material day.Hence, a cooked case against him.

5. That the trial court magistrate did not comply with section 312(2) of the Criminal Procedure Act, Cap. 20 (R.E 2022).

6. THAT there was no fair trial during the hearing as personal interests arose during the hearing where the Trial Court Magistrate and the PP trained PW2 on how to state the case during the trial, and he was denied the opportunity to cross-examine PW2. This appeal was argued orally. The appellant appeared in person while the respondent, Republic, was represented by Ms Verena Mathias, learned State Attorney. When the appellant was invited to address his grounds of appeal, he had nothing to offer apart from what was stated in his grounds of appeal. On the other hand, Ms Mathias started by supporting the appeal. In her submission, she addressed the second and fourth grounds of Page 4 of 10 appeal, contending that the appellant was charged with stealing a motorcycle in the trial court. Upon scrutinising the complainant's testimony (PW2) on pages 14 and 15 of the proceedings, she noticed deficiencies that failed to establish the essential elements of the offence of stealing. She further stated that the mere act of the appellant needing to board the motorcycle as a passenger just to instruct PW2 to wait, which PW2 later claimed was stolen, did not conclusively attribute the theft to the appellant. According to her, crucial details such as the appellant's whereabouts at the time of the alleged theft, the specific location where PW2 was having breakfast, and the visibility of the

parked motorcycle from his vantage point were glaringly absent from the evidence presented. Ms Mathias additionally argued that there was a conspicuous absence of concrete evidence linking the appellant to the theft of the motorcycle. The testimony merely indicated that the appellant was found in possession of the motorcycle, a charge which was not brought forth in court. To bolster her argument, she referred to the case of Director of Public Prosecutions vs Shishir Shya Msingh (Criminal Appeal 141 of 2021) [2022] TZCA 357 (16 June 2022), particularly the explanation on the elements of the offence of stealing, where it was emphasised that Page 5 of 10 concrete evidence was necessary, which was lacking in this instance. The absence of evidence indicating the accused's direct involvement in the theft of the motorcycle further weakened the case against him. She, therefore, found the second and fourth grounds of appeal to be substantiated. Regarding the first ground concerning the defence of alibi under section 194(4) of the CPA, she was of the view that the appellant needed to have adhered to the procedural requirements by informing the court and the prosecution of his defence of alibi promptly. She, however, stated that the trial magistrate had considered his testimony, albeit ultimately dismissing it. Ms Mathias deemed the fifth ground, pertaining to non-adherence to section 312

of the CPA, irrelevant as it did not pertain to the offence charged. Therefore, this ground lacked merit. Lastly, on the sixth ground, questioning the appellant's faith in the magistrate's impartiality, Ms Mathias deemed it inappropriate for this forum as it constituted a complaint rather than a valid appeal issue. In his rejoinder, the appellant implored the court to set him free since the Republic acknowledged the merit of the appeal and because he was innocent. Page 6 of 10 Having heard and considered the submissions of the parties, I now turn to scrutinising the appeal at hand. The main question I will ponder is whether the case against the appellant was proved beyond a reasonable doubt. In doing so, if need be, I will address the grounds of appeal as they were argued by Ms Mathias. It is trite that in criminal law, the prosecution is responsible for proving a case against the accused. According to section 3(2)(a) of the Evidence Act, Cap 6 R.E. 2022, the standard of proof in criminal law is beyond reasonable doubt. Further, in the case of Mohamed Said Matula V Republic [1995] TLR 3 (CA), it was stated that: “…………., the onus is always on the prosecution to prove not only the death but also the link between the said death and the accused; the onus never shifts away from the prosecution, and no duty is cast on the Appellant to establish his innocence.” [Emphasis supplied] In

the present instance, the trial magistrate found the appellant guilty of theft based on the testimonies of PW2 and PW3. They recounted that while PW2 was having breakfast, the appellant absconded with the motorcycle. Subsequently, on 27 November 2023, the appellant was apprehended while riding the motorcycle above. Now, for the offence of stealing to be proved, section 258(1) of the Penal Code provides the elements of the offence which are to be proved. The same reads: Page 7 of 10 “258.-(1) 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, steals that thing.” These elements were further expounded in the case of Director of Public Prosecutions vs Shishir Shya Msingh (supra), where it was stated that: “It is settled law that for the offence of stealing to be established, the prosecution should prove that; one, there was movable property; two, the movable property under discussion is in possession of a person other than the accused; three, there was an intention to move and take that movable property; four, the accused moved and took out the possession of the possessor; five, the accused "did it dishonestly to himself or wrongful gain 'to himself or wrongful loss to another; and six, the property “was moved

and took but without; the consent from the possessor.” [Emphasis provided] In that case, it was further stated that the prosecution is required to establish all six elements in proving the offence of stealing. Guided by this authority, I have to test the elements in the present appeal in line with subsection (2) of section 258 of the Penal Code. Indeed, in the current scenario, PW2 possessed a movable motorcycle susceptible to theft. It is a fundamental principle in criminal law and evidence that the presence of both actus reus and mens rea Page 8 of 10 must be established when an individual is accused of an offence. See the case of Isidori Patrice vs Republic (Criminal Appeal 224 of 2007) [2007] TZCA 2 (30 October 2007). Concerning the second and fourth grounds of appeal under consideration, PW2, who possessed the aforementioned motorcycle, which he had parked outside the eatery where he was enjoying his breakfast, claimed that the motorcycle disappeared alongside the appellant. However, as astutely pointed out by Ms Mathias, there is no indication in the evidence presented that definitively implicates the appellant in the disappearance of the motorcycle. No witness, including PW2, testified in the trial court to observe the appellant absconding from the scene with the motorcycle. Absent concrete evidence demonstrating the appellant's involvement in the disappearance and

taking of the motorcycle; it would be unjust to conclude that he committed theft. Therefore, in such circumstances, the testimony of PW2 cannot be deemed conclusive. Moreover, the intent element of stealing was not established as stipulated under subsection (2) of section 258 of the Penal Code. Without establishing that the appellant parted with the motorcycle and that he had the intention of permanently depriving the owner of the said Page 9 of 10 motorcycle, it is difficult to prove the remaining two elements that he did it dishonestly to himself or for wrongful gain to himself or for wrongful loss to another and that the property was moved and taken but without the consent of the possessor. Therefore, I concur with the erudite State Attorney that the appellant was erroneously charged and convicted of theft. As PW3 witnessed the appellant in possession of the stolen motorcycle six days subsequent to its disappearance, the appropriate charge, under the circumstances of this appeal, ought to have been for being found in possession of the stolen property rather than theft. Based on the aforementioned, it cannot be asserted that the prosecution fulfilled its obligation of establishing the charge of theft to the requisite standard. Therefore, given that the appellant was unjustly charged and convicted, this court finds merits in the second and fourth grounds of appeal. These

grounds suffice to resolve the appeal without the necessity of addressing the remaining grounds, which are contingent upon the two grounds already addressed by this court. Consequently, I hereby allow the appeal, quash the conviction and set aside the sentence meted against the Appellant. I further order the Page 10 of 10 immediate release of the Appellants herein from prison unless lawfully held. It is so ordered. DATED at GEITA this 09th day of August 2024. G.V. MWAKAPEJE

JUDGE This Judgment is delivered this 09th day of August 2024 in the presence of Ms Verena Mathias, learned State Attorney, and the Appellant in person. G.V. MWAKAPEJE

JUDGE