Rashidi Juma v Republic

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SHINYANGA SUB-REGISTRY) AT SHINYANGA CRIMINAL APPEAL NO. 40530 OF 2023 (Originating from Criminal Case No. 62/2019 from the District Court of Bariadi) RASHID JUMA RASHID ………………….……….……………..…..……... APPELLANT VERSUS THE REPUBLIC.………………………………………………….…….……..RESPONDENT JUDGMENT Date of Last Order 18.06.2024 Date of Judgment: 21.06.2024 MWAKAHESYA, J.: In the District Court of Bariadi at Bariadi the appellant (erstwhile second accused), Rashid s/o Juma Rashid, and Maduka s/o Masala (the first accused) were charged with two counts, to wit: Burglary c/s 294(1)(a)(2) of the Penal Code (the first count) and Stealing c/ss 258(1)(2)(a) and 265 of the Penal Code (the second count). Meanwhile a third defendant, Lazaro s/o Gidion Mgimba was charged with Unlawful possession of property suspected of having been stolen or unlawfully acquired c/s 312(1)(b) of the Penal Code. 1 It was alleged that, the appellant and the first accused on 09.03.2019 at night time in Nyamikoma Village, within Busega District in Simiyu Region, did break into the dwelling house of one Mashauri s/o Elias (the complainant) with intent to commit the offence of stealing and actually stole a television make LG (55 inches) the property of the complainant. Meanwhile, the third accused, on 26 March, 2019 was found in possession of the stolen television. At the end of the trial the third accused was acquitted, while the appellant and the first defendant, having jumped bail, were convicted as charged in absentia and were each sentenced to ten years imprisonment for the first count and seven years imprisonment for the second count. The trial court omitted to state whether the sentences were to run concurrently or otherwise. Being aggrieved with the conviction and sentence, the appellant has preferred this appeal on three grounds, which are to the effect that: 1. The trial court erred in law to pass sentence while the search was illegally conducted; 2. The trial magistrate erred both in law and in fact to pass sentence while there was contradictory evidence by the prosecution witnesses; 2 3. The issue of identification was not properly handled; and 4. The trial magistrate erred in law and in fact to convict the appellant in absentia and the appellant not giving his defence left a shadow of doubt. At the hearing of the appeal, the appellant appeared in person, unrepresented, while the respondent Republic enjoyed the service of Ms. Nyamnyaga Magoti, learned State Attorney. The appellant opted for the respondent to argue the appeal first and reserved his right of a reply. Ms. Magoti addressed the court and indicated that the respondent Republic was supporting the appeal and left it to the court to decide, the appellant had nothing to respond other than praying for the appeal to be allowed and to be set free. Having gleaned at the grounds of appeal, and the record before the court, I join hands with the learned State Attorney. The appeal stands meritorious. I will endeavor, albeit briefly, to substantiate that assertion. The first ground of appeal attacks the manner in which the search and seizure of the television which the appellant was alleged to have stolen. PW1, the Complainant, testified during trial that on 26.03.2019 3 alongside the first accused and the police he went to the office of the third accused and saw a television. When the third accused was asked about the owner of the television he responded that someone had brought it to his office, it is after that, a neighbour was called to witness a search and the television was identified by PW1 to be his. This manner of search was abnormal. It was prudent for an independent witness (the neighbour) to be called first and then for the search and subsequent seizure to be made. The fact that PW1 first saw the television and then a search with an independent witness was done raises doubts as to the credibility of the search since the search became a mere facade. The first ground of appeal has merit. The third ground of appeal attacks identification, albeit it is rather vague as to which identification, however, I take it to mean identification of the appellant. The complainant testified that, on 09.03.2019 (the night his television was stolen) at around 5:40 am he went to the TV room where he noted that one TV was stolen. He did not testify that he saw the person(s) that stole the television, but after some investigation of his own he was told that two “short men” were seen with a TV and so he suspected the first accused through that description, this led to the arrest of the first 4 accused. During cross examination by the appellant, PW1 stated that it was the first accused who mentioned the appellant to be his partner in crime. The first accused jumped bail without taking the witness stand, therefore there is no evidence on record apart from the cautioned statement (Exhibit P4) of the first accused (who was an accomplice) to substantiate the allegations of PW1, this in turn makes the mentioning of the appellant by the first accused to be hearsay evidence, which is inadmissible. During trial The prosecution tendered a cautioned statement made by the 1st accused (Exhibit P4 as mentioned previously). In the cautioned statement the 1st accused mentioned the appellant as an accomplice in the theft of a TV. However, when Exhibit P4 was being tendered, by F 8073 DC August (PW3), the 1st accused repudiated it by stating that he did not make it and PW3 is the one who made the statement, the trial magistrate overruled the objection and admitted the statement without conducting an inquiry. Therefore, Exhibit P4 was admitted illegally. The position of the law is that when a cautioned statement has been retracted/repudiated an inquiry has to be conducted to determine its admissibility and failure to do so is fatal. See Twaha Ali and 5 Others v. 5 The Republic, Criminal Appeal No. 78 Of 2004, Stephen s/o Jonas & Frank s/o Hamis v. The Republic, Criminal Appeal No. 337 Of 2018 (both unreported). Due to the absence of an inquiry Exhibit P4 is therefore expunged from record. The trial magistrate heavily relied on Exhibit P4 to convict the appellant. At page 5 of the judgment, the trial magistrate made the following finding: “…PW1 in his evidence said that the stealing was done at night, in which when he woke up he found that the TV was stolen. I have read the caution statement of the First accused MADUKA MASALA in which he admitted to have committed the stolen TV (sic) at night around 22:00 hours and in his statement he said they went to the local football hall and teared the tent then they took the TV. Then in such statement he mentioned the 2 nd accused that they were with him. The 1st and 2nd accused persons jumped bail they were not there to give their defense concerning the offense. Therefore, I find that the prosecution side was able to prove the offense of burglary as against the 1st and 2nd accused and I find the 1st and 2nd accused guilty of the of the 1st count they stand charged with”. [Emphasis mine] When dealing with the second count the trial Magistrate used an analogous approach and came to the conclusion that for that offence the appellant was guilty as well. 6 As the conviction of the appellant relied on the cautioned statement, which is unworthy, there is nothing left on record to implicate the appellant with the offences he was charged and convicted of. Having highlighted the above, I find that these grounds of appeal suffice to dispose of this matter without having to deal with the remaining grounds. In the end, I find that the appeal has merit and accordingly allow it. The conviction of the trial court is quashed and the sentences set aside. The appellant is to be set at liberty forthwith unless he is otherwise lawfully held. It is so ordered. DATED at SHINYANGA this 21th day of June, 2024. N.L. MWAKAHESYA JUDGE 7