Laurent William Ngole 4Others vs Republic DC Criminal Appeal No

IN THE HIGH COURTM OF TANZANIA AT MBEYA APPELLATE JURISDICTIION (Mbeya Registry) DC CRIMINAL APPEAL NO. 132 OF 2004 (From Mbeya District Court at Mbeya Criminal Case No. 689/2003) 1. LAURENT WILLIAM @ NGOLE 2. HOSEAM W ASAGA 3. BENJAMINI MWASIKILI ... APPELLANTS 4. GODFREY MWANGOKA 5. ALPHONCE MWSHILINDI VERSUS THE REPUBLIC ....................................................... RESPONDENT JUDGEMENT OTHMAN, J. The appellants Laurent William @ Ngole together with 4 others were convicted on 7/9/2004 by the Mbeya District Court of the offence of being found at night and in possession of instruments (to wit an iron bar, a screw driver and a drilling machine) suspected to be used for house breaking c/s. 298 (b) of the Penal Code, and sentenced to 3 years imprisonment. Aggrieved, he appeals against both conviction and sentence. That apart, information was provided to the court that all the other co-accused had received Presidential Pardon on 9/12/04. From what can be gathered in this petition o f appeal filed on 3/12/04, the appellant contends that the trial court erred in that: 1. It did not require the evidence of PW .l and PW.2, both police officers, be corroborated as they had interests of their own; 2. The defence case was not considered, as the appellant was not found in possession of the alleged instruments; and 3. The prosecution case was not proved beyond reasonable doubt. At the appeal hearing on 5/4/05, the appellant fortified the grounds o f appeal by submitting that he was not apprehended in the house where the alleged instruments were found. The Republic, represented by Mr. Boniface, Learned State Attorney, supported the appeal. First, it was his submission that the evidence of PW. 1 and PW.2 contained something not evident in the charge sheet. That the appellant was caught with stolen properties. This was not particularized in the charge sheet nor were the items tendered as exhibits. Secondly, their testimonies deferred as to the circumstances and place the accused were arrested and the instruments found in their possession. Now the merits. It is common ground that the prosecution case solely depended on the evidence o f PW .l and PW.2. PW .l, a police officer testified that at 3.00 a.m. on 24/11/04 while on night patrol at Makunguru area they found a group o f men carrying stolen properties. They followed them behind. The group threw some o f the items, and fled. He pursued the5th accused to a certain house. They surrounded it and asked him to open. He complied, and they arrested him. He had a drilling machine. He claimed it belonged to the 2nd accrued. He also informed the policemen the properties had been stolen from Soweto Market. They took him to the place the stolen items were dropped. There they found a screw driver, and an iron bar (Exhibit P .l) used in the breakage. The 5th accused then showed the police the house of the 3rd and 4th accused. They were arrested therein. Furthermore, PW .l told the court that the appellant stayed in the same house as the 5th accused, but in a different room. On cross-examination, he responded that the 3rd accused was found in possession of the items, and the 4th and 5th accused were found with nothing. PW.2, the police officer who was together with PW .l on the material day told the court that they received information that thieves were at the Appellant’s and 4th accused house. There they arrested the 2nd and 4th accused who directed them to the accused’s home. On their way they saw 3 persons with two buckets of stolen properties. They dropped them, and ran away. At the appellant’s house they found the 5th accused who said he had been there a few moments earlier. They broke open the appellant’s room, and found a drilling machine. The 2nd and 4th accused told them it belonged to the appellant. PW.2 also told the court that the appellant was arrested later in another criminal case, and joined with the case at hand. On cross-examination by the appellant he responded that they found a screw driver in his room. He also stated that the 2nd, 3rd, 4th and 5th accused were arrested with nothing. In his defence the appellant (D W .l) told the court that he did not know any o f the co-accused or the prosecution witnesses. That on the day of the incident he was at his house asleep. He was apprehended on 25/11/04 at 10.00 hours, and charged thereafter. He denied living in the same house as the 5th accused. On cross-examination by the court, he responded that he had 11 pending criminal cases, in three of which he was jointly charged with the other accused. The 2nd accused (DW.2) stated that at the time o f the event he was at his house asleep. That he was arrested on 24/11/04 at 3.30 am after 4 policemen broke into his room. He denied knowledge o f the other co-accused. The 3rd accused too stated he was asleep, was arrested on 24/11/04 and did not know the others. DW.4 and DW.5 supported the 3rd accused’s assertions. The 4th accused (DW.6) told the court he had been asleep at has house on the material day; and was also arrested 24/11/04. DW.7 confirmed his version o f facts. The 5th accused, on his part stated that he did not know any o f the co-accused. The appellant’s grounds of appeal are mostly inter-connected, and are evidentially and legal. They can be grouped together. The prosecution case depended on the evidence o f PW .l and PW.2. The evidence sufficiently demonstrated that together they were on night patrol at 3 .00 a.m. on 24/11/04. This being the case, the material facts in their testimonies ought to be consistent in order to be relied upon to sustain a conviction. PW. 1 testified that the accused were found at night at Makunguru area with stolen properties. That when the 5th accused was arrested at his house he had a drilling machine, and that the screw driver and iron bar were found at the place where the stolen properties were dropped when the accused fled. PW.2 on the other hand, testified that they received information thieves were at the appellant’s and 4th accused’shouse. That on their way they found a group o f 3 men carrying two baskets o f stolen properties. That the drilling machine was found in the appellant’s room. On cross examination, he responded that the screw driver was found in the appellant’s room; and the 2nd, 3rd, 4th and 5th accused were arrested with nothing. A trial court is required to address itself to inconsistencies and contradictions in the evidence, and assess whether they are trivial or material, and go to the root of the matter. In the circumstances o f this case this was not observed. In its findings the court held that the screwdriver and iron bar were found where the stolen properties were dropped. For one, there was contradictory testimony between PW .l and PW.2 as to where the screwdriver was found. The former stated it was at the place the properties were dropped. PW.2 said it was found in the appellant’s room. That apart, PW .l stated that the drilling machine was found with the 5th accused. PW .2’s version was that it was also found in the appellant’s room. From the overall evidence there are material inconsistencies as to where the breaking instruments, which constitute an element o f the offence, were found, and who was found in possession thereof. The same two prosecution witnesses also differed as to the circumstances that in the first place brought the accused’s attention to them. On the evidence as a whole, and taking into account all o f the above, I find that the prosecution case has not been proved beyond reasonable doubt as required by law. Accordingly, I quash the trial court’s conviction and set aside the sentence. The appellant is to be forthwith released, unless he is held on some other legally valid reason. Appeal allowed. M. C. OTHMAN JUDGE 2/05/05 Date: 17/5/2005 1st Appellant: Present. 2nd - 5th Appellant: Absent. For Republic: Mr. Nyenza, State Attorney. C/C Mrs. Mponzi. Delivered in the presence o f the Appellant and Mr. Nyenza learned State Attorney. JUDGE 17/05/2005