Jackson Judgment proofread

IN THE HIGH COURT OF TANZANIA GEITA SUB-REGISTRY AT GEITA CRIMINAL APPEAL No. 22783 OF 2024 (Arising from the decision of Geita District Court in Criminal Case No.26 of 2024 before S.L.Maweda, PRM.) JACKSON THOMAS ------------------------------------- 1st APPELLANT DANIEL KORESHA --------------------------------------2nd APPELLANT Versus THE REPUBLIC ------------------------------------------ RESPONDENT JUDGMENT Date of last Order: 01/10/2024 Date of Judgment: 17/10/2024 K. D. MHINA, J. Before the District Court of Geita at Geita, the 1 st appellant, Jackson Thomas (the 1st accused person at the trial), and the 2nd appellant, Daniel Koresha (the 4th accused person at the trial), along with three others, stood 1 trial with two counts. The appellants were charged with burglary c/s 294 (1) and (2) of the Penal Code [Cap. 16 R.E 2022]; and stealing c/s 258 (1) and 265 of the Penal Code [Cap. 16 R.E 2022]. In the first count, it was alleged that on 29 December 2022, at night hours at Fadhili Bucha Mwatulole area, all accused persons did break into the house of one Dorine d/o Mushi with intent to commit an offence therein. In the second count, it was also alleged that on the same date, time, and place, all accused persons, without bona fide claim of right, stole one TV make Sundar valued at TZS 450,000/=, the property of Dorine d/o Mushi. At the commencement of their trial, all the accused persons unequivocally denied the charges against them. At the trial, the prosecution had eight witnesses and seven exhibits to prove the accusations against the accused. The accused persons appeared in person unrepresented and entered their defence in person on oath. Briefly, from the prosecution witnesses, PW2 (Dorine Evarist Moshi) testified that on 29 December 2022, between 23:00 and 00:00 hours, she heard a bang while asleep. When she went to the sitting room, she found 2 one of the windows was cut, and the TV make Sundar with, 32 inches black in colour, was stolen. That TV had the number 800308 at the end and started number 32H8. In the morning, she reported the theft to the police station. On 30 December 2022, between 17:30 and 18:00 hours, she was called by a police officer named Samson, who informed her there were TVs which were recovered. At the police station, she was able to identify her stolen TV. PW3 (F1159 D/SGT SAMSON) stated that on 30 December 2022, while in patrol with other officers D/CPL Zakaria and H7598 D/CST Erasto, they arrested Jackson Thomas, the 1st appellant, who was found carrying a sulphate bag with a TV make Sundar, black in colour. He claimed he was taking it to his friend Daniel Koresha, the 2nd appellant. When the 1st accused failed to provide proof of ownership of the TV, they found a civilian passing through the area, named Shafii Makongo, to witness the search and seize the exhibit. He filled out the certificate of seizure (exhibit P2), which the 1 st accused person, himself and an independent witness signed. 3 Then, the 1st accused person took them to the 2nd accused person, and they succeeded in arresting him. The TV was handed to the police exhibit keeper (PW1). According to PW5, the police officer who recorded the cautioned statement of the 1st appellant (exhibit P4) confessed that on 29 December 2022, around 04:00 hours, they broke the window of a certain house at Mwatulole area and stole the TV. The same as PW6, the police officer who recorded the cautioned statement of the 2 nd appellant (exhibit P5). PW7 stated that the 2nd appellant confessed that he participated in the commission of the offence. While his colleagues went inside to steal, he remained outside. After they finished, they left, and the 1st appellant remained with the stolen TV for custody. Later, he phoned the 1 st appellant to send the TV to his home because he had found the buyer. In their defences, the 1st appellant denied committing the offence. He stated that the complainant failed to tender the receipts to prove her ownership and that there were contradictions in PW1 evidence regarding the stolen items. Also, he said that he was arrested on allegations of being a rogue and a vagabond. 4 On his side, the 2nd appellant defended himself by saying that on 29 December 2022, he was at Nyakabale, not Geita. On 30 December 2022, when he was at his home in Geita while sick, he was arrested by five police officers. General, both appellants denied committing the offences convicted. At the end of the trial, the District Court found the appellants guilty on both counts and sentenced them equally to serve 10 years imprisonment for the 1st count and 5 years imprisonment for the 2nd count. Dissatisfied, the appellants appealed to this court, challenging both the conviction and sentence, with seven grounds of appeal, as follows. 1. The accused were charged, convicted and sentenced to serve 15 years of imprisonment for the offence of Burglary c/s 294(1 )(2) and Section 258 and 265 of the Penal Code [CAP. 16 R.E. 2022] for the offence which they had never committed. 2. The accused were charged, convicted and sentenced to serve 15 years of imprisonment without proof that they were not caught at the scene of crime. 3. The Trial Magistrate erred in law and fact in convicting the accused based on contradictory evidence adduced by the prosecution side regarding the time of the commission of the offence. 4. The Trial Magistrate Court erred in law and fact in convicting and sentencing the accused, relying on the contradictory evidence by 5 PW-6 G.8206 D/CPL Said and that from PW-8 H.4251 D/CPL Frank based on the time and place of the commission of the offence and one Zephania alleged owner of the TV alleged to have been stolen was not called to testify. 5. The Trial Magistrate Court erred in law and fact in convicting and sentencing the accused, relying upon the evidence adduced by the prosecution side that the PW2 did not produce a receipt, for it is compulsory and necessary to prove ownership by a receipt. 6. The Trial Magistrate Court erred in law and fact in convicting and sentencing the accused, relying on the evidence adduced by the prosecution side because there were no exhibits, including the extract of voice notes and text messages, on how they planned the commission of the offence. 7. The Trial Magistrate Court erred in law and facts in convicting and sentencing the accused by relying upon the evidence which was adduced by the prosecution side only which was not clearly stated at what time the said police patrol was conducted and around which places. In prosecuting the appeal, the accused persons appeared in person unrepresented, while the prosecution had the services of Ms. Scholastica Teffe, a learned state attorney. 6 The first appellant was the first to “kickstart the ball” in supporting the appeal. He submitted only on the 2 nd and 3rd grounds of appeal and had nothing to add on other grounds. On the 2nd ground of appeal, he submitted that there was no proof that he committed the offence because he was not caught/ arrested at the crime scene. Regarding the 3rd ground, he stated that the victim, Dorine Mushi, testified that her property was stolen at around 23:00 hours, while the police officer who interrogated him testified that the stealing happened around 04:00 hours. In conclusion, he added that the victim failed to prove the ownership of the stolen TV after she failed to tender the purchasing receipt. On his part, the 2nd appellant argued only the 6th and 7th grounds of appeal. He had nothing to add on other grounds of appeal. Submitting on the 6th ground, he stated that the prosecution failed to tender phone communication between him and the other accused persons as evidence at the trial. Regarding the 7th ground, he submitted that the prosecution failed to bring one Zephania, a Police Officer who claimed to be the owner of the 7 stolen property. Further, the prosecution failed to tender a receipt to prove ownership of the stolen property. Resisting the appeal, Ms. Teffe supported both the conviction and sentence imposed by the trial court. Responding to the submission by the 1st appellant on the 1st and 2nd grounds of appeal, she submitted that according to Sections 294, 258 and 265 of the Penal Code Cap 16 RE: 2022, for the offence to be proved, it is not the requirement of the law that the accused has to be arrested at the crime scene. Regarding the discrepancies between PW2 and PW5 regarding the time when the offence was committed, Ms. Teffe explained that the time stated by PW5 was from the appellant's own statement during interrogation. She further stated that the trial court considered the evidence of PW2 (the victim) regarding the time of the offence's commission. Replying to the submissions by the 2nd appellant, Ms. Teffe maintained that the ingredients of the offence charged were proved without evidence of the communication between the 2nd appellant and other suspects. Therefore, the evidence of the extract of the appellant's communication was not a requisite. 8 On the 7th ground that one Zephania was not summoned to testify, Ms. Teffe submitted that the name was mentioned by the 1 st appellant in his caution statement and not mentioned by PW6 and PW8. In her further response, she submitted that PW2 successfully identified the TV make Sunder (exhibit 1) that was found in the possession of the 1st appellant. Furthermore, in defence, no evidence was adduced to indicate that the 1st appellant owned exhibit P1. The issue of PW2 ownership of exhibit P1 was not even challenged during the cross-examination. In her further submission, Ms. Teffe stated that despite the absence of the receipt, PW2 was able to identify and describe the stolen property (exhibit P1). To cement her argument, she cited the case of Paulo Maduka & Others vs Republic, Criminal Appeal 110 of 2007 [Tanzlii]. In rejoinder, the 1st appellant insisted that the prosecution failed to bring a receipt. Regarding the discrepancies between PW2 and PW5 on when the offence was committed, he reiterated his earlier submission that it was PW5 who mentioned the time and not him. 9 On his side, the 2nd appellant reiterated that the one who mentioned Zephania was the Police Officer and not him. Further, the victim failed to tender the receipt for the TV; thus, she did not prove her ownership. Having objectively gone through the grounds of appeal, the submissions by both parties and the entire records of appeal, I find that the seven grounds of appeal revolve around three issues; One, whether the offences were proved beyond reasonable doubt. This covers and will dispose of the 1st,2nd, 6th and 7th grounds of appeal. Two, whether there were discrepancies on the time of the commission of the offence and that Zephania was not summoned to testify. This covers and will dispose of the 3rd and 4th grounds of appeal and; Third, whether there was proof of ownership of the stolen property (exhibit P1) by PW2 (the victim). This covers and will dispose of the 5 th ground of appeal. In determining the appeal, let's begin with the third issue, which is of the utmost importance. This is crucial because neither of the appellants was caught at the crime scene. The evidence indicated that the 1 st appellant was found with the stolen TV (exhibit P1). Upon interrogation, he informed the 10 police officers that he was transporting the exhibit to the 2 nd appellant. That stolen TV (exhibit P1) was later identified by the victim (PW2). That piece of evidence has a significant impact on this case. The Court of Appeal in Hassan Said vs. Republic, Criminal Appeal No. 264 of 2015 (Tanzlii), held that; “…it is now settled that a detailed description by giving special marks of the stolen items has to be made before such exhibits are tendered in court in order to avoid doubts on the correctness of the allegedly stolen items. In the case of Mustapha Darajani vs Republic, Criminal Appeal No. 242 of 2015 (unreported), in similar circumstances, this Court stated as follows: “In such cases, description of specific mark to any property alleged stolen should always be given first by the alleged owner before being shown and allowed to tender them as exhibits." In the instant appeal, at the trial, before the victim (PW2), was able to identify and describe the stolen property. The records by its make, size, colour, the ribbon flagged at the middle of the TV and serial number. On 11 serial number, she mentioned they started with 32H8 and ended with 800308. She also identified the sulphate bag where the TV was kept, written with a marker pen with the name “Michael,” which was also taken from her home. In their defence, the appellants could not contradict the evidence by PW2, nor did they claim that exhibit P1 did not belong to PW2 and was never stolen. In this appeal, the appellants’ complaint was that the victim (PW2) failed to tender the purchasing receipt to prove her ownership. In Haji Shaban Bukho vs. Republic, Criminal Appeal No. 279 of 2011 (Tanzlii), the Court of Appeal held that; “It should be recalled that in the course of his testimony, PW1 simply made a blank assurance that the bicycles were his without alluding to any distinctive marks or producing their acquisition receipts”. 12 The above-cited case clearly shows that producing an acquisition receipt is one of the criteria for identifying a stolen item. The other criterion is a distinctive mark(s) of the item. Therefore, as rightly submitted by Ms. Teffe, though PW2 did not produce a receipt but, she was able to identify and describe the stolen property. It remains, therefore, that the description of exhibit P1 by PW2 was sufficient to prove her ownership, and a receipt was nothing but to supplement. Therefore, the 5th ground of appeal is devoid of merits. Coming to the 2nd issue, which covers the 3rd and 4th grounds of appeal, the complaint by the 1st appellant was that there were discrepancies regarding the time of the commission of the offence. The 1st appellant queried that while PW2 (the victim) stated that the incident occurred around 23:00 hours, the police officer who interrogated him (PW5) testified that the stealing happened around 04:00 hours. On this, Ms. Teffe stated that the time stated by PW5 was the the appellant's own statement during interrogation. 13 After reviewing the evidence of PW2, she stated that the incident took place on 29 December 2022 between 23:00 and 00:00 hours. On his side, PW5 (interrogation officer) said that during interrogation, the 1 st appellant told him that they committed a crime on 29 December 2022 around 04:00 hours. In the evidence, it was recorded that; “In his statement, the 1st accused admitted committing the offence. That, on 29/12/2022 at around 4:00 am, the 1st accused with his fellows went at Mwatulole area and broke a window of a housed and did steal a TV. He told me that they used “Sagara”. Therefore, from the above excerpt, it is clear that PW5's statements were the words of the 1st appellant during interrogations. It is nowhere recorded that PW5, in his own words, stated that the offence occurred around 04:00 hours. Further, at the trial, both PW5, PW6, and PW8 were the police officers who interrogated the appellants and their colleagues who were acquitted; therefore, their evidence contained what they did in recording the cautioned statements and what the suspects told them during interrogations. 14 That being the case, there is no contradiction between PW2 and PW5 or any other police officer who interrogated the suspects, i.e. PW6 and PW8, on when the offence occurred. Regarding the complaint that Zephania, who was allegedly to be the owner of the stolen TV, was summoned to testify, this also should not detain me long. In the record, neither of the prosecution witnesses testified that the owner of the stolen property was Zephania. It was the 2nd appellant himself who stated in his cautioned statement when he was interrogated by PW6, that they invaded and stole in the house of Zephania. Therefore, the 3rd and 4th grounds of appeal also lack merits. The final issue at hand is whether the offences were proven beyond reasonable doubt. This encompasses the 1 st, 2nd, 6th, and 7th grounds of appeal. The appellants' grievances were rooted in the fact that they were convicted for offences they had not committed, were not apprehended at the crime scene, the text and voice messages allegedly planning the offences were not presented, and the evidence did not specify the time and location of the police patrol. 15 In determination, I will start with the last one, on the evidence did not reveal at what time and place the police patrol was conducted. This should not detain me long. According to PW3’s evidence (Police officer), he stated that they were on patrol on 30 December 2022 at Mwatulole area in Buhalahala Ward. His evidence was confirmed by the PW4, who stated that the 1st appellant was arrested at Utulivu Road in Mwatulole area around 16:00 hours. Therefore, the evidence revealed that the police officers patrolled at Mwatulole area around 16:00 hour. Further, whether the police officers were on patrol or not is immaterial. This is because a police officer, whether on patrol or not, may arrest a person suspected of committing an offence. Thus, the complaint is immaterial. On the remaining complaints, the entry point is on the onus and standard of proof in criminal cases. In criminal cases, the onus is always on the prosecution to prove the case and never shifts away from the prosecution. This is the cardinal principle of criminal law: the duty of proving the charge against an accused person always lies on the prosecution. See Galus Kitaya vs. The Republic, Criminal Appeal No. 196 of 2015 (Tanzlii). Further, the standard of proof in criminal cases is beyond reasonable 16 doubt. See Lameck Gamaliel and another vs. The Republic, Criminal Appeal No. 210 of 2012, CAT (unreported). As previously alluded, the trial court convicted the appellants based One, there was credible evidence linking the appellants. The 1 st appellant was caught red-handed with a TV make Sundar (exhibit P1), taking/transporting it to the 2nd appellant. Two, the 1st appellant led the police officers to the 2nd appellant and Third, the TV make Sundar (exhibit P1) was properly identified by PW2 (the owner). Though the cautioned statements of the appellants were admitted at the trial, the trial magistrate did not analyse and convict the appellants. The evidence at the trial did not indicate if the appellants were caught at the crime scene. The trial court based its finding on the fact that the 1 st appellant was caught with the stolen TV and transported it to the 2 nd appellant. Thus, it invoked the doctrine of recent possession. In Magesa Chacha Nyakibali and another vs. Republic, Criminal Appeal No. 307 of 2013, the Court of Appeal held that; 17 "... before a court of law can rely in (sic) the doctrine of recent possession as a basis of conviction in a criminal case, ...it must positively be proved, first that the property was found with the suspect; secondly, that the property is positively the property of the complainant; thirdly that the property was stolen from the complainant, and lastly that the property was recently stolen from the complainant. In order to prove possession, there must be acceptable evidence as to search of the suspect and recovery of the allegedly stolen property, and any discredited evidence on the same cannot suffice, no matter from how many witnesses." That being the case, it is important to look at the four factors in the cited case above in relation to each appellant. Starting with the 1st appellant, the evidence of PW3 indicated that they arrested the 1st appellant with the stolen item (exhibit P1) at Mwatulole area while they were on patrol. They became suspicious of what the 1 st appellant had carried in a sulphate bag. When they asked the 1 st appellant to justify his ownership, he failed and told them he was taking the exhibit to the 2 nd appellant. PW3 seized the exhibit in the presence of PW4, a civilian. The 1 st accused person also signed it and put his thumbprint. The certificate of seizure (exhibit P2) indicates that PW3 was the seizing officer who signed it, and PW4 was an independent witness who witnessed 18 and signed the search. The seized item was the TV make Sundar black in colour with 32 inches with serial no. 32H8XLGTJ03060120190328003. It was seized at Utulivu Street. Under the Criminal Procedure Act, Cap 20, calling an independent witness during the search and seizure is mandatory. The relevant section is 38 (3) Therefore, in such a circumstance, the law applicable is the Criminal Procedure Act, Cap 20, and Section 38 (3), which imperatively provides for the need for an independent witness. See also Jibril Okash Ahmed vs. The Republic, Criminal Appeal No. 331 of 2017 (Tanzlii). After PW3 seized exhibit P1, he went to the police station and handed it to PW1 (the exhibit keeper), who later tendered it in court. Therefore, though there was no paper trail tendered at the court regarding the seized exhibit P1 (TV), but by its nature, it is not easy to tamper with it. Therefore, the chain of custody in this case was well-established from the seizing, stored and tendered at the court. See Chacha Jeremiah Murimi and three Others vs. Republic, Criminal Appeal No. 551 of 2015, (Tanzlii) 19 As alluded to earlier, PW2 positively identified the stolen TV. According to her evidence, it was stolen from her home after the thieves broke the window. Therefore, exhibit P1 was found with the 1st appellant; it was positively identified by the victim (PW2), and it was stolen from PW2. According to the evidence of PW2, the theft occurred on 29 December 2022 between 23:00 and 00:00 hours. On the other hand, in the evidence of PW3 and PW4, the 1st appellant was arrested with the stolen item on 30 December 2022 around 16:00 hours. The Court of Appeal in Kefa Rashid and four others vs. Republic, Criminal Appeal No. 68 of 2013 (Tanzlii) held that; "The position of the law on recent possession can be stated thus. Where a person is found in possession of property recently stolen or unlawfully obtained, he is presumed to have committed the offence connected with a person or place wherefrom the property was obtained”. As the possession was very recent, in the circumstances of this case, the incident occurred on 29 December 2022 between 23:00- 00:00 hours and the stolen item was found on 30 December 2022 at 16:00 hours; I am 20 satisfied that this is a fit case for invoking the doctrine of recent possession to burglary and stealing. For the 2nd appellant, the only evidence which incriminated him as per the impugned judgment was that the 1st appellant told the police officers that he was taking/ transporting the stolen item to him. In my view, that evidence is fragile and based on suspicion, which did not warrant an inference of guilt. In criminal law, it is trite that suspicion, however grave, cannot be used to prove a criminal offence. See Seleman Rashid@ Daha vs. Republic, Criminal Appeal No. 190 0f 2010 (CAT-unreported), where it was held that; “It is settled law that suspicion, however grave it may be, cannot be a substitute for proof in a court of justice”. From the above discussion, the question is, what is the fate of the appellants in this appeal? The Court of Appeal in Malik George Ngendakumana vs. Republic, Criminal Appeal No. 353 of 2014 (unreported) held that; 21 "The principle of law is that, in criminal cases, the duty of prosecution is two" one to prove that the offence was committed, and two the accused person is the one who committed it”. In the instant appeal, the prosecution proved that the offence was committed. Further, it was proved that the 1 st appellant was the one who committed the offence. Therefore, the complaints raised in the 1 st, 2nd, 6th and 7th grounds of appeal that the appellants were convicted for offences they had not committed, were not apprehended at the crime scene, the text and voice messages allegedly planning the offences were not presented, and the evidence did not specify the time and location of the police patrol are immaterial and weak in as far as the 1st appellant is concerned. On the other hand, I am satisfied that there is no incriminating evidence that proves the offences beyond reasonable doubt against the 2 nd appellant, which was put before the trial court to convict him. In the final analysis, the appeal is dismissed against the 1st appellant for lack of merits. On the other hand, I accordingly allow the appeal against the 2nd appellant. 22 Conviction entered against the 2nd appellant is quashed, and sentences are set aside. The 2nd appellant is to be released from custody forthwith unless therein held for lawful cause. It is so ordered. K. D. MHINA JUDGE 17/10/2024 Court: Right to appeal explained. 23 K. D. MHINA JUDGE 17/10/2024 24