20020227 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA . ..: _,_ AT DAR F.S SALAAM ___.__.__,_...,~... --- (CORAM: MAKAME 1 J ,_A., LUBUVA,~_}_.A. 1 And LUGAKINJ!!..~.., J .A.) CRIMINAL APPEAL NO. 76 OF 1995 BE'JJJEEN KENETH MISTRY. o ' ' • • • o • e t o ,. o • • APPELLANT AND "TEE BEPUBLIC.., 6 • • 0 • • ,, • • -• RESPONDENT (Appeal from the decision of the High Courl ,o.f Tanzania at. Dar es Salaam) (15;Lando I J,1) . ,dated the 3rd day of December, 1994 ll1 JUDGEMENT --- In a darin~ ~pis.o® of h;i.g}l~~)l:i-:p a S~ia. lo!'t"j" laden witb-seve.re.l items of merchan.dize was set upon at Mikese, Morogoro .. ____ ·-· .Region. when it wae be:i.ng driven from Dar es Salaam to Iringa. ~ driver. a turn. boy, and a passenger who was on? of the two . ........... . ownere of tha B ~ ' wo.x-o :'At IZ1.ll'l-~int tre.nc "'----.; '"':':<) a To-,,-'.:,'.;::. ·) 1; Land Cruiser, ·taken into a bush and tethered- to a tree" there 1 .- while the Scania lorry was driven away in a different direction. Investigations were mountad and several people were arrested. The present appellant, KENETH MISTRY, one of the three people eventually tried, was found by the District Court, Morog9ro, to have been one of·the peQple who participated in the robbery. He was convicted and duly sentenced to a tenn of thirty years in jail. He appealed -to the High Court where K;yando, J., upheld the decision of the courtv ••• /2 2 He decided to come to this court. He appeared on his own 1:>efore us and submitte• .A sheaf of papers to buttress his effort. Mr. Mlipano 1 learned Attomey for the Respondent Republic, mile sharing &Jr disquiet that the r8-0-&rd ,waa faw-t._y, ~ <>f. .th~--- 'View that the oonviction of the appella."lt cannot be supported •. The reoord of appeal. wae e ~ h~p,o~ e.nd unbeJ.::i,,ava'b1:r ·· carelessly kept. The typed record furnished to us skipped many ~tiona,. :i.tl DAo _.,._e :.:i:r:; m.-my a.s t1o1Glve P"'sae -o..£ ~ banel-wr:i.thn record at a go. We had to resort to the tattered original record, · uhid wo.e 1.t4'9l.f q,~tfl a 'O't~ining v~rcise., The trial court was satisfied t~t tha ap_pQ~t \11.;i.ti j.nvQJ.v...<l in the robbery becaue.o ·mo-rely. ·.aeval\ days after the .robbery he was m' poeoo.oc:i.on 0£ .sixty :f;'our 1 out of the two h\llld,rad1 bags of salt said. to be part of the booty :i..~ the robbery. The court relied mainly -0n th"' ovideaoo ,<:,£ <:a. ao-accused, D.A.n10I{ t-'lADA-. who WAllt oonvi.otod. for Receiving the sixty four bags of salt and who, incidentally, got off lightly with a fme of Shs. 5000/= 1 or twelve months in· jail. "!'hQ AtorY ~f Hada w~ albeit subo~o,.n:ci.o,.l.l.y c ~ r t o d by PW6 ABD1U,LAH MAG.AWA and DW4 ATHUMP.NI SELEM.AIU, Mada's covillagers at Chakwale village in Kilosa Di.strict, wh0 said that the appellant arrived at Mada 5s shop on a tractor and sold the sixty four bags of salt to• Mada. The appellant told a different story. He said he did indeed have a tractor and did indeed carry some salt on it: He had foun.d Mada on the road at a junction to Chakwale, Mada's village, and Mada hired him to ca:rry the bags of salt he found Mada with. He • 0 ./3 4 ' 3 asked to be paid Shs. 5000/= but, after some haggling, he agreed to carry it for Shs. 4000/:::. He took Mada and the salt to Mada's shop and got paid Shs. 4o00/::. as had been agreed upon. As we have 'indicated, the Republic did not wish to support the conviction. Mr., Mlipano submitted that, despite the- evidence. of. Mada_ and PW6,. it w~ doubtful whether the apl)&llant really sold the salt to Mada. Mr. Mlipano's argument was that the bugs of salt -were too many to be purchased by Mada without his asking for, and be.ing givens a r~ceipt. After carefully sifting tbe evidence we are certainly unable to agre~ with the two courts below. We are mindful and keenly aware of the fact that this is• a second. appeal; and so ordinarily we would be very slow to :interfere.· In the instant case, however, we are not sw-e .that the evi(l.en_oe on record, such as it was, was treated with the seriousness expected in such a serious critninal case. Our reasons a're, however, different from Mr. Mlipano 1 s reason 0 Quite ob~iouslj Mad.a. a co-a.cc used, had a,n :inte.r?.st _t-0 se:r·ve, and if he could steer clear by m<;1king the appellant hold the baby he would ~e tempted to do so. True, his story foW1d some support in the testimony of PW6 and DW4, none of whom, however, said, like Mada did, that the appellant had said he would later give Mada a receipt. In our view no undue reliance should have been placed on ·the testimony of the small-time village shopkeeper who claimed to have parted with as much as Shs. 108,800/= for salt alone, and from_ a person he had never bought any commodity b_efore • • •• /4 4 \'le experienced other problems while evaluating the evidence• The appell,mt told a consistent story right from the time he 1made a Caution Statement. In that Gaution Statement, apparently ta.ken only four days after he had reported at the Police Station, he said that he had carried Mada and the salt he found Mada with by the .not plausible. not reflected in the typed version, i.s an assertion by the police +:£~ 'rlhc,;· ;_n.,..&,e:1-e~te,d the 1.:9h~Z:Ya PW9 ~pootor ~ t~t: "We did not get _any information from the (Berega) villagers as when the lorry was brought there. 1--.'i~.!.~~e.ci t"r.la.••t..EE. 1.9L101.90. Jia.e:Lo.u.a.3..t.Jm_p tQlen fro,a .~~W~?'--~~ Be3c,e.ee;i So that it is evident tl=.t aoowe lri(sc o.f sa.1.t wa,;g sJsle,n :i'E'OIU ~ !.~AA ~ •. ~bo~t, £l week after. the robbery incident• This opened up wide possibilities as to how tl:le salt might have changed participated in the robbery. The other problem that bothered us is whether really the sixty four bags of salt were satisfactorily proved to be among the ty10 hundred bags stolen when the robbery took :plac(i). Whereas there was evidence that the two Ir:i.nga busin~ssmen. wrote their names on many of the items they bought in Dar es Salaam there ·was positive evidence that the bags of salt did not have their name labels. There is therefore 110 telling that the salt bags found in the ••• /5 C I ., ·• 5 possess ion of Mada were really among the bags in the lorry .PW3 Aron Gilbert, the driver, was relieved of -at Mikese. · We are respectfully of the view that if the trial court, and in turn t~e High Court, had_ 9arefully reflected on the matters we ,have touched upon they would have foun~ it clearly unsafe to convict the appellant for the offence charged. We are not able to sustain the conviction. Consequently we quash it and set aside the sentence :i.mposedo We order the appellant Keneth Mistry's immediate release ~less he is otherwise lawfully in custody. DATED at DAR ES SALAAM this 27th day of February,· 2002 L.M. MAKJ'.Jl!E. ----.~-.. . . ~---= JU.S'l'ICE ~ OF :APPEAL *.,, D.Z. LUBUVA ~ ..... JUSTICE OF APPEAL ~ K.S.K.LUGAKINGIRA !!!Jill~· OJ APPEAL I certify that this is a true copy of the· original.