CRIMINAL APPEAL NOHAMISI RAMADHAN SAID JONGO NEWNEWNEW

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MTWARA SUB-REGISTRY AT MTWARA CRIMINAL APPEAL CASE NO 103 OF 2023 (Originating from MTWARA District Court at MTWARA . in Criminal Case No 32 of 2Q22) X HAMISI RAMADHANI SAID @JONGO...................APPELLANT VERSUS „ v- i X-. THE REPUBLIC................ ........RESPONDENT JUDGMENT Date oflast Order; 3d November 2023 Date ofJudgment:. 23’' November 2023 \ LALTAIKA, J, The appellant herein, HAMISI RAMADHANI SAID ©JONGO was arraigned in the District Court of Mtwara at Mtwara charged with the offence of stealing contrary to section 258(1) and 265 of the Penal Code Cap 16 RE 2019. It was the prosecution's story that on 14/1/2022 at KIGAENI area in the Municipality of Mtwara, the appellant did steal a motorcycle with Page 1 of 11 registration number MC298CXK make TVS Star with Chassis Number 625AF 47 MIC 10472 valued at TZS 2,385,000 property of one SHARIFA d/o JUMA MOHAMED. When the charge was read over and explained to the appellant (then accused) he pleaded not guilty. This necessitated the conducting of a full trial. After the full trial and upon being convinced that the prosecution had left no stone unturned in proving the allegation, the appellant was sentenced to serve a term of two years in jail. : V/4/ Dissatisfied, he has appealed this court by way of a petition of appeal containing the following five (5) grounds: 1. The learned triaiMagistrate erred in both law and fact by convicting the Appellant while there is variance of date in the charge sheet with that of the prosecution witness. 2. The trial Magistrate erred in law and fact in both law and fact by < convicting the Appellant while the prosecution side did not call ' ' the owner of the stolen motorcycle. <"'s -3. That the lower Court erred in law and fact by convicting and sentencing the Appellant while the exhibit register (PF 16) was not tendered to prove ofthe said exhibits, 4. That, the trial Court erred in law and fact in convicting and sentencing the Appellant without considering defence evidence Page 2 of 11 as required under section 235(1) of the Criminal Procedure Act Cap 20, RE2022. 5. That the trial Court erred in law and fact by convicting and sentencing the Appellant while the prosecution side failed to prove their case beyond reasonable doubt as standard required under section 3(2)(a) of the Tanzania Evidence Act Cap 6, RE 2022. ’ When the appeal was called on for hearing on the 3rd of November 2023, the appellant appeared in person, unrepresented. The respondent Republic, on the other hand, appeared through Mr. Steven Aron Kondoro, learned State Attorney. The appellant,- not being learned in law, indicated that he had nothing to add to his expounded grounds of appeal. He requested that the learned State Attorney is allowed to proceed with his counter arguments while he reserved his right to a rejoinder. This paved the .V. < way for Mr. Kondoro whose submission is summarized in the next part of i;. this judgment. ' Taking up the podium, Mr. Kondoro indicated that he was objecting to the appeal. He stated that on the first ground, the complaint was that the trial magistrate erred in convicting him despite the variance in the dates on the charge sheet and that of the prosecution witness. In addressing this Page 3 of 11 ground, he mentioned that the respondent had gone through the charge sheet and was not in agreement with the appellant. Regarding the particulars of the offense, Mr. Kondoro averred, it was stated that on the dates mentioned, the theft took place in the Vigaeni area. The learned State Attorney emphasized that even PW1 and PW2, as highlighted on page 1 and 3 of the impugned judgment, mentioned the date as 14/12/2021 as the day the incident happened.,He expressed confidence in the testimony of the witnesses who were under oath. The learned State Attorney argued that it was undisputable that the reflection of the charge sheet with the date 14/1/2022 was an error made by the prosecution. Mr. Kondoro expressed confidence that the error could be cured as it did not go to the root of the case or shake the evidence of the prosecution witness. He mentioned that, according to section 388 of the A, V. Criminal Procedure Act Cap 20 RE 2022, the prosecution's error could be -3;., cured. He earnestly prayed that the ground be dismissed. Moving on to the second ground, Mr. Kondoro stated that the complaint was based on alleged conviction without summoning the owner of the motorcycle purported to have been stolen. He agreed with the appellant Page 4 of 11 on this, acknowledging that nowhere in the proceedings was it shown that the owner of the motorcycle testified as the owner. He maintained that it was upon the prosecution to decide which witness is material and which one should be summoned. The learned State Attorney averred that summoned prosecution •V. witnesses, particularly PW1 who had seen the appellant on the bodaboda, asking him if it belonged to him, and PW2, who lived in Vigaeni Street and had witnessed the appellant requesting keys to the motorcycle, were sufficient to prove the allegations against the accused, including ownership. He prayed that the ground of appeal be dismissed for lack of merit. Oh the third ground, Mr, Kondoro acknowledged that the complaint was that the trial court convicted him without the production of the exhibit register by the prosecution. He mentioned that the prosecution did not produce the exhibit register but adhered to the legal requirement for taking the statement through GPL Rajab, who was an investigator. According to Mr. Kondoro, the appellant had confessed to the offense in his statement, explaining that he took the motorcycle to a place called Nanyamba. He pointed out that there was no force used to record the Page 5 of 11 statement. Moreover, he mentioned that PCJ 45 Njane, who was PW4 when taking an oath as an exhibit keeper, testified on how he received, recorded, and handled the exhibits as per the requirement of the law by signing the chain of custody form. He prayed that the ground of appeal be dismissed. ■ On the fourth ground, Mr. Kondoro agreed with the appellant that the complaint was on the non-consideration of the defense evidence. Nevertheless, he stated that, as seen on page 7 of the impugned judgment, DW1, the appellant, was given the opportunity to testify on what had transpired. On page 9, DW2, averred the learned State Attorney, a magistrate from Mikindani PC as a justice of peace, explained how she recorded the extra-judjqaf?statement of the appellant. Based on their testimonies, Mr. Kondoro reasoned, even though there were no other defense witnesses, he believed that the trial court had accorded the defense 4, V’J' ■ the opportunity to testify. He prayed that the ground of appeal be dismissed. 'S' V " On the fifth ground, Mr. Kondoro stated that the complaint was the inability to prove the case beyond reasonable doubt He pointed out that it is the duty of the prosecution, dearly imposed under section 3(2)(a) of the Page 6 of 11 Evidence Act Cap 6 RE 2022, and this can be seen in the case of W00DM1NT0N vs DPP (1935) AC 276. The learned State Attorney argued that the calling of 8 witnesses by the prosecution and the tendering of several exhibits to testify were enough to say that the prosecution was able to prove its case beyond any doubt. To this end, he prayed that the entire appeal be dismissed for lack of merit. The appellant, in his rejoinder submission,Z'._ conveyed ’.fl that he was a local of Mtwara and had studied at Lilungu Primary School, completing STD VII in 1995. Originally from Morogoro, Kilosa District, he explained that his father, a civil servant, and police officer, had moved with the family when they were young, and he passed & away in Mtwara. He noted that his mother was from Nanyamba. Regarding his previous work, he mentioned being an agent for buying crops, primarily for Indian clients who would send him to purchase crops on their behalf. As an example, he cited buying around 20 tons of mung beans "cfioroko"th\s year for an individual named Elias. C/ * * , The appellant prayed for the acceptance of his elaborate grounds of appeal. He pointed out a discrepancy in the dates, noting that while the charge sheet indicated the offense on 14/1/2022, a prosecution witness Page 7 of 11 (PWl) testified that the offense occurred on 14/12/2021. He emphasized the significance of this omission and prayed for his release, stating that only his name was inserted on the charge sheet. Continuing his rejoinder, the appellant insisted that the person who claimed his motorcycle was stolen never appeared in court. Initially slated to be the first witness, the appellant argued emphatically, this person did not bring even the registration card to court. The. appellant recounted his interaction with the investigator, highlighting,thathe was asked to write his own cautioned statement, which was not accepted in court. The appellant described an incident where he was allegedly beaten by a police officer named Rajabu and expressed his skepticism about the magistrate, indicating a lack of faith in him. Despite indicating his lack of faith, the appellant averred, the magistrate insisted on presiding over the case, jeopardizing his right to a fair trial. He prayed that his appeal be allowed claiming that it was a fictitious charge due to his enmity with Rajabu and other police officers. I have dispassionately considered the rival submissions in light of the grounds of appeal. I have also carefully examined the trial Page 8 of 11 court's records including a copy of the chargesheet that has taken a large part of this hearing. The charge sheet indicated the offense occurred on 14/1/2022, while the prosecution witnesses testified that it happened on 14/12/2021. This discrepancy raises concerns about the accuracy and reliability of the evidence presented. The appellant's right to a fair trial may have been compromised by this error, warranting a reconsideration of the appeal to ensure that justice is properly served. s The appellant argued that the owner of the purported stolen motorcycle did not appear in court/which was a critical aspect of the case, .j,?' The absence of this key witness, who was initially slated to testify, undermines the credibility .of the prosecution's case. The failure to summon . .Tit f; ® ■'■’■rat'?' and examine the owner of the motorcycle affects the overall integrity of the evidence against the appellant. I cannot imagine a more important witness in a case like this. I should probably say with due respect to the learned State Attorney, the claim that the appellant was seen with a motorcycle by a neighbour who asked him if it belongs to him is one of the weakest arguments I have come across recently. Page 9 of 11 The appellant contends that the defense evidence was not properly considered. Although Mr. Kdndoro argued that the defense was given an opportunity to testify, the appellant's assertion that his defense was inadequately considered raises questions about the fairness of the trial. Moreover, the appellant's claim of being beaten by a police officer arid the alleged bias of the magistrate suggest procedural irregularities w- that could have impacted the fairness of the trial. Given the cumulative impact of these issues—discrepancies in dates, the absence of key witnesses, procedural irregularities, and the potential bias, I entertain no iota of doubt in making a finding that not only was there a significant risk of miscarriage of justice but also, the offence allegedly % committed was not proved at the required standard. In the upshot, ! allow the appeal. I hereby quash conviction and set aside the sentence. Further, I order that the appellant HAMISI <■’ RAMADHANI SAID @JONGO be released from prison forthwith unless he is being held for any other lawful cause. Page 10 of 11 It is so ordered. E.I. LALTAIKA JUDGE 29.11.2023 Judgment delivered under my hand and the seal of this court this 29th day of November 2023 in the presence of Mr. Steven Aron Kondoro, learned State Attorney, and the appellant who has appeared in person, unrepresented. The right to appeal to the Court of Appeal of Tanzania is fully explained. E.I. LALTAIKA JUDGE 29.11.2023 Page 11 of 11