Bupe Mwakajinga vs Republic DC Criminal Case No

IN THE HIGH COURT OF TANZANIA AT MBEYA DC. CRIMINAL CASE No. 112 of 2004 FROM RUNGWE DISTRICT COURT AT TUKUYU CRIMINAL CASE NO. 43/2004 BUPE M W AKAJINGA..................APPELLANT VERSUS THE R E PU B L IC ........................ RESPONDENT JU D GEM EN T MREMA J. Before the District court o f Rungwe, Rungwe District, at Tukuyu, were four accused persons, namely, Ulija S/O Ntamisi, Anna d/o Benson, Nsajigwa s/o Mwanjabala and Bupe d/o Mwakajinga, in that order as the first, second, third and 4 accused persons. The first and second accused stood charged with stealing c/s 265 of the Penal code, while the third and fourth accuseds were charged with receiving stolen property c/s 311 (1) of the Penal code. The charge against the first accused, however, was subsequently withdrawn, thus leaving the second, third and 4th accused to continue with the proceedings, this time as the first, 2nd and third accused (DW1, DW2 and DW3), respectively, (as per the trial court’s judgement). For avoidance of doubt, the second accused NSAJIGWA S/O MWAJABALA, the third accused ANNA D/O BENSON and BUPE D/O MWAKAJINGA, were referred to by the trial court, as the first, second and third accused in that order. At the conclusion of the trial the first accused NSAJINGWA was found guilty of stealing c/s 265 of the penal code (on the first court) and was sentenced to three years imprisonment. Equally, the second and third accused were ordered to serve three years in jail. It was further ordered that the USA dollar 390,000/= recovered from the third accused be returned to the l complainant, while USA dollar 3,100/= not recovered to be reimbursed to the owner by the 1st and third accused upon completion of their custodial sentences. The second accused (convict) was subsequently acquitted by this court (Mackanja, J) on revision_____ on the account that she was juvenile within the meaning of Part III of the Children and young Persons Act, Cap 13 of the Revised laws of the united Republic. The present appeal is by the third accused BUPE d/o MWAKAJINGA, her grounds of appeal being as follows: 1. The learned trial Magistrate erred in law in convicting the appellant on uncorroborated evidence of a co-accused. 2. The Learned trial Magistrate erred in law in not holding that Frola Mwanjabala (PW1), was welter a general no special owner of the property alleged to have been stolen. 3. On the evidence on record the prosecution case was not established beyond reasonable doubt. What are the facts of the case which led to the conviction and consequently the sentence against the appellant? It is in evidence that in March, 2004 one Mr. George Mwanjabala, who was then Tanzanian Ambassador in Malawi, was present in the country, at his place of birth, Kyela. He was with his wife Flora Mwanjabala (PW1) and both were residing at Ushirika area, within Kyela Town. They had a family function on 07/03/2004. The first Nsajigwa Mwanjabala, who is a close relative of the couple, was present at the function. Then came the fateful day (14/03/2004). PW1 and her husband visited their parents and they returned to the place of residence at night time. A young brother of the Ambassor Mr. George Mwanjabala, one Ulija Ntamisi, who was the first accused in the instant proceedings before the charge was abandoned in his favour, happened to have been left at home. No sooner the couple returned home than PW1 noted something unusual to have taken place at their house premises. The fist thing she noted was her small hand bag missing. He brother in law Ulija upon being asked if he knew where P W l’s bag was, he denied knowledge of it. Both PW1 and her husband searched for the property and in the course of doing so it was discovered that P W l’s husband’s brief case was missing. P W l’s bag and her husband’s brief case were found lying behind the house they were living in but the two items were no lounger intact. They were broken or tempered with. The couple noted that USA dollars 7,000/= which were in an envelop were missing. The envelop was found torn and was lying on the ground. According to P W l’s testimony their two cellular (mobile) telephones were stolen, also P W l’s sweater and perfume. The theft was then reported to Tulcuyu police, PW1 holding one ULIJA NTMIZI and NSAJIGWA as highly suspects. It is not in dispute that No. E. 8265 D/C Roman (PW2) and other poilicemen went to the scene where they saw the brief case and the lady’s small bag tempered with. Ulija Ntamisi, the then first accused, was heavily interrogated but he strongly denied any involvement. However, Ulija informed PW2 that he strongly suspected NSAJIGWA MWANJABALA, the 2nd accused who is the half brother o f P W l’s husband, one GEORGE MWANJABALA. It is in evidence that the said Nsajigwa was frequenting the place during the period PW 1 and her husband were in the county on leave, or for their private purpose. Nsajigwa’s conduct, according to the evidence on record, was suspecious in that although he was closely related to PW1 and her husband, he was not entering their house, or even having a courtesy to greet them. With this information, PW2 and other police men decided to hunt for Nsajigwa (who then became the first accused). Upon being arrested, the first accused (Nsajigwa) led police (PW2 and others) to his place of abode for a search but nothing was unearthed from therein. According to PW2, a perfume and a sweater were found there and were allegedly identified by PW1 as part of her stolen properties. But these two items were never produced in the trial court and so this piece of evidence cannot form part of circumstantial evidence against the appellant or any o f the other accused persons. The first accused was charged jointly and together with Ulija Ntamizi, though the latter was removed from the proceedings. The trial court was told by PW2 that on 21/03/2004 the first accused decided to reveal to PW2 what really took place regarding the alleged theft. It is the testimony of PW2 to the effect that the first accused admitted to have stolen USA dollars 7,000/= and two cellular phones belonging to P W l’s husband; and that his accomplice was one BEDON MWANJOKOLO to whom the first accused gave dollar 1,000/= to help him convert it into T. shilings, thus he (1st accused) remained with a balance of USA $ 6,000/=. This sum of money (& 6,000/=) was given by the first accused ANNA BENISON (the present second accused in the proceedings after the 1st accused Ulija was withdrawn from the proceedings). PW2 and his colleagues (police) were led by the first accused to meet the 2nd accused (Anna B enson_____ who has been discharged by this court, Mackanja, J, under cap 13). The trial court was further told by PW2 that Anna was urged by the first accused to produce the money he handed over to her and when the money was produced and counted it was found to amount to USA $ 3, 900/= thus leaving a balance of 2,100/=. Anna (DW2) was put to task by DW1 to account for the balance. Her answer, according to PW2, was to the effect that the said money was handed over by her (DW2) to one BUPE D/O MEAKAJINGA, the present appellant, for safe keeping on the account that DW2 feared to remain with the money for she had a trip to the village. DW2, according to PW2, led to the police the third accused (appellant) to find out from her as to why the money was less than the amount DW2 gave to her (Bupe). The appellant was then sought but she was not found at home. Her husband informed the police that DW3 (appellant) went to Mbeya to greet her sister. But her sister denied that the appellant had ever visited her for the past three years. Finally DW3 was arrested at Tukuyu and taken to police station. Upon interrogation, Bupe vehemently denied to have been given money by the second accused (Anna). She (Bupe), too, was charged jointly and together with Anna to have receive stolen money. The testimony that implicated the trial accused (appellant) is that of Anna (DW2). According to DW2, the appellant is one of the members of economic - social group, each contributing money to their joint fund for their particular objectives. Anna (DW2) was also a member o f that group and it is common ground that the appellant knew the residence of DW2. It is not also denied that both DW2 and DW3 were intimate friends. According to Anna (DW2), on 15/03/2004 the first accused approached her. It was at about 3.00p.m. DW1 told DW2 that he had just arrived from Tukuyu (both DW2 and DW1 were residents of Kyela) where he went to greet his sick mother. Anna further told the trial court that the first accused went on telling her that his (DW1) brother Ambassodor George Mwanjabala was present at home and that George Mwanjabala gave the first accused “mzigo” ( a parcel) to keep it for him; and that as D W 11 (first accused) was going to a milling machine to collect some keys he requested DW2 to received the parcel and keep it for him for a while. According to DW2, as he knew the first accused and she did not have any reason to doubt him, she decided to receive the alleged parcel from D W 1. Later, according to Anna, the appellant appeared allegedly to collect DW2’s contribution for their women group. DW2 gave the appellant (DW3) shs. 10,000/=. DW2 went on telling the court that as she had a trip to the village she found it to be safer to have the “mzigo” given to her by the first accused to be handed over to the appellant so that the latter could keep it for her while she was away. It is in evidence that the total sum of money DW2 gave to DW3 was USA $ 6,000/=. Then when Anna returned from the village she found the 1st accused had been arrested on the ground that he stolen the money he gave to DW2. Anna went to DW3 ( appellant) to collect the money she gave to DW3; and that when she counted the money she found that USAS 2,100/= was missing (meaning that only USA $ 3,900/= was given to her by DW3). DW3 was asked by DW2 as to why the money was not intact as given to her (DW3) by DW2 and DW 3’s answer, according to DW2, was to the effect that she was going to fetch it. But that was not done and after two days DW3 disappeared from Kyela and it was alleged that she went to Iringa. On 31/2/2004 DW2 was arrested by police because she handed to them only USA $ 3,900/= as against the total sum of money $ 6,000/= given to her by the 1st accused. The 1st accused was present, according DW2. The appellant and DW2 were then charged jointly and together for receiving stolen money. While both were in remand custody, according to DW2, the appellant was requesting DW2 to give evidence which would exonerate DW3 (appellant) and that they would share the money between them. Anna further stated that she urged her to produce the money but DW3 feared that she would be implicated directly if she did so. Also that the request was repeated after the closure of the prosecution case but DW2 insisted on DW3 that she must produce the balance of $2,100/= In cross-examination by the appellant, DW2 is on record as having answered in part as follows: “ I know you (3 rd accused) escaped because the investigator did trace you at your home. We live at different house but I gave you the allegedly stolen money (sic)because I was used to you and we did business together”. As to why she did not keep the money in her house (DW2’s), Anna answered the police prosecutor (at page 21 of the proceedings) that she feared keeping the money because she was going to the village to sell oil. The third accused (appellant) claimed that on 28/03/2004 she left for Iringa to greet her sister. While there and after 5 days had elapsed, she received a telephone call from Mbeya informing her that she stole her husband’s money. The call was from her sister. DW3 refuted the allegation saying that her husband knew about her trip. She returned to Kyela but she was arrested at Tukuyu and taken to Tukuyu police station. There she found DW2 and they exchanged words between them regarding the alleged offence. That DW2 insisted that she gave DW3 the said money when the two went to take bathe. In cross examination by the P.P, she admitted to have sent contribution money to one Mama Frank on 15/03/2004. As to why she did not greet her sister at Mbeya, DW3 claimed that the bus (i.e. Kilimanjaro Bus) did not stop in Mbeya, so she decided to go to greet her sister in Iringa. As to why she did not report to Tukuyu police after learning that she was being sought by the police, her answer was to the effect that she had a heavy load of sadines (dagaa). She admitted knowing DW2 because she stays in one house with Mama Fraule who was keeping their moneys for contribution. Also that she did not have any misunderstandings or grudges with DW2 before this alleged incident. The Learned trial Magistrate relied heavily on the testimony of DW2, also on the conduct of DW3 (appellant) to disappear from Kyela soon after Police started looking for the culprits who parted away with the money of PW1 ’s husband. The duty o f this court is to consider and decide on the evidence as whether the appellant was properly convicted. It is therefore a question of credibility as whether it is true in fact that DW2 gave the money to DW3 as alleged by Anna? It is the contention of m/s Kileo, Learned State Attorney, that DW 2’s testimony did not receive corroboration to justify DW 3’s conviction. According to her, since DW2’s testimony is that o f a co-accused, such evidence was undoubtedly that of an accomplice, hence corroboration was necessary. She referred to section 311 - (1) of the Penal code under which the appellant stood charged, that the requirement under this subsection is that it is the duty of the prosecution to prove beyond per adventure that the property alleged to have been stolen was true in fact found in the possession of the receiver, and that the latter retained it with knowledge that the same was stolen or was unlawfully acquired. In the instant proceedings, Miss Kileo submitted, there is no evidence establishing that it was true, as alleged by DW2, that DW3 certainly received the said money and the money, or part of it was found in her possession. The upshot of that, according to her, is that the case for prosecution fell short of the standard required to prove the charge against DW3. In the result, it is her pray er that this appeal be allowed, conviction quashed and sentence set aside. At this juncture, I am now in a position to consider and decide on the three formulated grounds of appeal. If the 1st ground, which is whether the trial Magistrate erred in law in convicting the appellant on uncorroborated evidence o f a co-accused, is answered in the positive, then the two other grounds become superflous. First, Anna (DW2) admitted that she did not count the money when the first accused handed over the money to her. That she simply strusted him that they (the money) were dollars 6,000/=as DW1 (1st accused) told her. In her examination in chief, DW2 claimed that she counted the money that was left to her by the first accused and found that it amounted to dollars six-thousand (6,000/=). Then she handed over to the appellant. But there is no witness who saw the alleged counting of the money, even the receipt thereof (of the money). Since the appellant denied to have been given any money by DW2, it was incumbent upon the prosecution to lead more evidence to corroborate DW 2’s testimony. Second, DW2 did not produce evidence, apart from her own testimony, to concretized the fact that it was true in fact that the appellant did actually hand over dollars 3,900/=. Had this alleged transaction been done in the presence o f the police officer (PW2) that would have been a different case. Also it does not appear to be a common sense, unless DW2 gave a better explanation, that DW2 would casually and irresponsibly have handed over a large sum of money to the appellant in the absence of any witness, or a written document, while herself was very much aware that the money was not her property. It is not also explained why DW2 did not look for the 1st accused to have the money returned to him. It is alleged in evidence that DW1 simply handed over the money to DW2 for the latter to hold it in trust while the former went to a willing machine to fetch some keys. But DW2 never told the trial court why DW1 did not return to her to collect the money. She did not also say in what manner the money was handed over to her, whether it was wrapped in a piece of paper, or kept in an envelop, that was not said. The fact that DW2 was not seen in Kyela when she was being sought by the police, that statement by itself is not cogently enough to find corroboration in support of DW2’s testimony. It may be true that DW2 gave the said money to DW3, but the law of this country does not encourage or allow speculation on matters not corroborated. It is even more so in cases involving co-accuseds. It has been repeated times and again without number by this court and the Court above that evidence o f a co-accused is undoubtedly evidence o f an accomplice; and that for a court to rely on such evidence of accomplice which is not corroborated, it must first of all be convinced beyond reasonable doubt that such evidence is nothing but the truth; and second, the court must warn itself o f the danger of convicting on uncorroborated accomplice’s evidence. Using different words in an appeal like this one, the law does not say that conviction on uncorroborated accomplice’s evidence is illegal; but indeed, as a mater of practice it is unsafe to uphold a conviction based on the uncorroborated evidence o f a co-accused (see PASCAL KITIGWA V. REPUBLIC [1994] T.L.R, 65.). In the instant case the evidence upon which the Magistrate relied on to convict the appellant was that of her co-accused (DW2). There is no any other evidence which would have supplied corroboration to DW2’s testimony. The Magistrate relied on circumstantial evidence relating to the appellant’s conduct. According to the trial Magistrate, the appellant disappeared from Kyela when she was being sought by the police. But the appellant gave her reason as to why she went to Iringa, which trip she said was authorized by her husband. The prosecution did not bring evidence to prove that DW3’s journey to Iringa was to evade justice taking its course. Moreover, the testimony of DW2 is highly suspect, in that it cannot be said with certainty as to how much money DW1 (first accused)really gave her (DW2). This is because DW2 admitted unequivocally in her defence case that D W 1 did not count the money when he handed over the lot to her. Equally, DW2 cannot be trusted in her testimony, which is to the effect that herself (DW2) counted the money before she handed over $ 6,000/=. Since the appellant (DW3) strongly denied to have received any money from DW2, it then lay a burden duty on the prosecution to prove that it was true in fact that DW2 counted the money, and that she did so in the presence o f DW3 and DW3 upon receing the money. But there is no such evidence to that effect, so everything becomes speculative and in law, statements which are surrounded with speculation are not admissable in evidence. With respect, the trial Magistrate having appreciated the fact that “no other persons who witnessed the transactions between DW2 and DW3” he should have warned himself of the danger of convicting the appellant without corroboration. The fact that he noted that the amount of money allegedly handed over to DW3 was quite collossal in relation to their financial position, that appreciation in itself was enough to entertain doubt in the Magistrate mind, hence the danger of relying on doubtful uncorroborated testimony of the co­ accused (DW2). In sum, I am satisfied and I agree with Miss Kileo, Leaned State Attorney for the Respondent/Republic, that the conviction proceeded on unreliable and uncorroborated testimony o f DW2 who was definitely an accomplice. For that same reason I hereby quash it, set aside the sentence against the appellant, also the order for restitution. Thus, the appeal is allowed and it is directed that the appellant be set free forthwith unless otherwise she is lawfully held. Accordingly, it is so ordered. A. C. MREMA JUDGE .... , . 08/11/2005 V\ / „ ,h o f November, 2005, in the presence of Mr. Nyenza, Delive1$J'at__Mbeya-f thj® 8 Learned Stare^Stomey for the Republic, and in the absence o f the appellant who was not removed from the prison. A. C. MREMA JUDGE 08/11/2005.