MARIAM ALLY

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (BUKOBA SUB-REGISTRY) AT BUKOBA CRIMINAL APPEAL NO.17375 OF 2024 (Arising from Criminal Case No.249 of 2023 Karagwe District Court, E. J. Bingasila, SRM) 1 MARIAM ALLY @ ABDALLAH............................................ st APPELLANT LUTHBETTA ISSAYA KAMWELA @ LUCY KAMWELA...... nd APPELLANT 2 VERSUS THE REPUBLIC.................................................................... RESPONDENT JUDGMENT 07 & 11.10.2024 KIWONDE, J.: The appellants, Mariam Ally @ Abdallah and Luthbetta Isaya Kamwela @ Lucy Kamwela were arraigned before the District Court of Karagwe for three (3) offences namely; arson contrary to section 319(a), malicious damage to property contrary to section 326 (1) and stealing contrary to sections 258 (1) and 265 all of the Penal Code, Cap 16 (R. E 2022). In the particulars of the offence, the prosecution averred that the appellants, on 12th March 2022 at Omurushaka Centre, Bugene Ward within Karagwe District in Kagera Region, wilfully and unlawfully did set i fire to Kokusima Faustine building, damaged eight (8) Tanzanian Bank notes each valued at TZS 5, 000/=, sixteen (16) bank notes valued at TZS 1,000/= each, eight (8) bank notes each valued at TZS 2, 000/= and one bank note valued at TZS 10, 000/= making a total of TZS 82, 000/=, the bank slips, one wooden chair, one electric extension cable make Tronic, four plastic plates and stole TZS 37, 861, 985.37 all being the properties of Derick Misinde. On arraignment in court, the appellants pleaded not guilty. However, upon a full trial, the appellants were acquitted for the first and second counts but convicted of stealing and sentenced to serve imprisonment in jail for a term of three (3) years. In addition to the custodial sentence, the appellants were ordered to pay back TZS 37, 861, 985. 37 to Derick Rwegoshora Misinde. The appellants were dissatisfied with the decision of the trial court hence, they have preferred an appeal to this court based on three (3) grounds of appeal as follows: 1. That the trial District Resident Magistrate grossly erred in law for failure to note that the prosecution never proved the charge against the appellants to the required standard in criminal cases. 2 2. That the trial District Resident Magistrate grossly erred in law for failure to take note that the second appellant had no case to answer 3. That the trial District Resident Magistrate grossly erred in law for failure to take note that there were full of inconsistencies in the prosecution witnesses' testimonies and the admitted exhibits that weakened the prosecution case. The appellants prayed this court to allow the appeal, quash the judgment of the trial court, set aside the conviction and sentence and set them at liberty. During hearing of the appeal, the appellants were unrepresented, while, the respondent was represented by Mr. Elias Sudi, learned State Attorney. The appellants prayed this court to adopt their grounds of appeal in lieu of making oral submissions. In reply, the learned State Attorney for the respondent Republic supported the appeal on reason that the prosecution case was not proved beyond reasonable doubts. The learned State Attorney said in Director of Public Prosecutions Versus Shishir Shyamsingh, Criminal Appeal No. 141 Of 2921, Court of Appeal of Tanzania at Kigoma, it was stated that 3 the ingredients of an offence of stealing are: one, that there was a movable property, two, the movable property was in possession of a person other than the accused, three, an intention to move and take the movable property, four, the accused moved and took out the property from the possessor, five, the accused did it dishonestly or gained to himself and six, the property was moved and taken out without the consent of the possessor. The learned State Attorney said in this appeal, the trial court relied on the evidence of PW1 and the audit report (Exhibit P2) to convict the appellants, but such audit report does not indicate if there was any loss and it was prepared before the event of theft. He said the ingredients of the offence were not proved. Besides that, he argued that there was no proof if the said amount of money amounting to TZS 37, 861, 985. 37 was stolen by the appellants. Also, PW6 said when he went there at the scene ofcrime, he found other people inside the building, so, it is doubtful as to who stole the money. Moreover, the State Attorney submitted that the evidence reveals that the complainant had the keys and he could go to the office at any time even in the absence of the appellants, thus, it is not certain who stole the said money. 4 Therefore, the learned State Attorney argued that the prosecution case was not proved beyond reasonable doubts and the appeal be allowed. The appellants had no rejoinder submissions. From the petition of appeal, trial court's records and the oral submissions, the main issue for determination is whether the appeal has merits or otherwise. Generally, the appeal is not opposed by the respondent. The respondent supported it on reason that the prosecution case was not proved beyond reasonable doubts. In criminal cases, the prosecution is duty bound to prove the case beyond all reasonable doubts as it was stated in Mohamed Said Mtula [1995] T. L. R 3. Also, in Emmanuel Magesa Chacha and another Versus Republic, Criminal Appeal No. 538 of 2020 [2024] TZCA 116 (2nd May 2024), it was held that the prosecution, in terms of section 3(2)(a) of the Tanzania Evidence Act, Cap 6 (R. E 2022) is under obligation to prove its case beyond reasonable doubt and failure to achieve that affords the accused a benefit of doubt. In the appeal at hand, indeed, there was no sufficient evidence to prove beyond all reasonable doubts that the appellants stole the alleged money. Among the evidence relied upon by the trial court is the Audit Report, which was admitted as exhibit P2. The prosecution witness, PW1 said this report indicated the financial loss. However, such documentary 5 evidence shows that it is concerned with the financial loss occurred at the fire incidence. So, even any other prudent person would conclude that the said loss resulted from fire outbreak. Also, PW1 said the auditor used office information and admitted that the auditor relied his auditing on the information from the office since the current cash book could not be found. This was unreliable report for it was based on the information supplied by another person and casts doubts as to its veracity. Besides that, the appellants were convicted of stealing based on suspicion that the second appellant fled to Mbeya after the fire and stealing incidence and she was found and arrested at Ileje -Mbeya Region; and upon search, she was found with TZS 356, 500/=, which was admitted at the trial as exhibit PIO. However, no witness could certainly tell the court if the money found with the second appellant was stolen from the complainant. It could be inferred from her conduct that she committed an offence of stealing. But in defence, the second appellant said she went to Mbeya to attend family matters. She said she asked for permission from his employer who refused, thus, she decided to secretly go. So, the act or conduct of the second appellant going to Mbeya was not because she had committed the offence of stealing. Also, the prosecution evidence shows that the appellants used to deposit money with CRDB Bank and withdraw and that the first appellant made 6 frequent deposits and withdrawals one day before the fire incidence. But the witnesses could not prove that the appellants stole the money during financial transactions with the bank or when served other customers. In law, mere suspicion however strong it might be, does not form the basis of conviction. This was held so in Hakimu Mfaume V. R [1984] T. L. R 201 and Joseph Janta Kalalu V. R [1994] T. L. R 12. Therefore, the appellants should not have been convicted based on mere suspicion in the absence of concrete evidence. I have taken into consideration the doubts raised by the State Attorney. The evidence is very clear that when the first appellant saw smoke and fire, she went out of the building and asked for help. She said she never went back in the building. Then the fire rescue people, CRDB bank officials and other people went inside the building or office of the complainant. So, it is doubtful as to who actually stole the money, other people or the appellants. In criminal cases, any material doubts have to be resolved in favour of the appellants. In Mabula Makoye and another Versus Republic, Criminal Appeal No.227 of 2017 [2020] TZCA 1762(28th August 2020), it was held inter alia that where the prosecution evidence casts doubts, then such material doubts have to be for the advantage of the accused persons. 7 From the foregoing reasons, the first ground of appeal which is to the effect that the prosecution case was not proved to the required standard in criminal cases, finds merits and it is allowed. This ground of appeal alone suffices to dispose of the entire appeal and thus, I find it not demanding to go on determining the rest of the grounds of appeal. Consequently, the appeal has been merited and it is hereby allowed. The judgment of trial court is quashed, conviction, sentence and compensation order are set aside and the appellants are set at liberty unless they are held for any other lawful cause. Dated at Bukoba this 11th October 2024. F. H. KIWONDE JUDGE 11/10/2024 Court: Judgment is delivered in chamber in the presence of the appellants in person, Mr. Elias Sudi State Attorney for the respondent Republic and Grace Mutoka (RMA) this 11th October 2024 and the right of further appeal is explained. p-? F. H. KI JUDGE 11/10/2024 8