wanzage morice johaness another vs republic 2006 tzhc 135 24 april 2006

IN THE HIGH COURT OF TANZANIA AT MWANZA APPELLATE JURISDICTION HC. CRIMINAL APPEAL NO. 141 OF 2004 (CF's) HC.CR.APP. NO. 142/2004 (Original Cr. Case No. 236 o f2003 of the District Court of Tarime District at Tarime Before: Z.M. Kesase, District Magistrate) 1. WANZAGE MORICE JOHANESS ^ 2. ELIVA PHILIPO ..................... APPELLANTS Versus THE REPUBLIC....................................................... RESPONDENT 12/12/2005 & 24/04/2006 JUDGMENT RWEYEMAMU. J: This is consolidated appeal No. 141/2004 of Wanzage Morice Johannes and 142/2004 of Eliva d/o Phillipo. Wanzage was the 1st accused at the trial involving four people. The 2nd and 3rd were acquitted for insufficient and lack of evidence respectively. The 4th now second appellant Eliva was charged of and convicted with receiving stolen property c/s 311(1) of the Penal Code. The two are now appealing both their conviction and sentence. The background story is brief. On 16/5/2003 the complainant Pwx's house was broken into Fatuma style, by a number of armed bandits. Among them she claimed to have identified the appellant and 2nd accused at trial. The bandits made off with a number of items among them an engine make Suzuki (P2). Subsequent investigations led to the discovery of P2 in the home stead of Eliva's husband. The recovery was made in her presence but absence of her husband. She was charged and convicted based on the evidence I shall return to shortly. Wanzaqe now basically challenges the credibility of Pw*'s evidence of identification at the scene of crime. That evidence according to the record was the sole basis of his conviction. Eliva contends that she was not found in possession of P2, as the same was not recovered from her house-she was not the owner of the house from which it was found. Mr. Mgengeli State Attorney for the respondent submits that the evidence on record was sufficient to support conviction of both the appellants. I do not agree with him. There are two issues for decision, or one in respect of each of the appellant. As regards Wanzage, the issue is that of sufficiency of Pw*'s identification evidence. P\n u s description of Wanzaqe at the scene of crime was as follows; and I quote; "(1.) 1st accused was carrying a rungu and the 2nd accused was a panga. The two others not before this court one had a gun. 1st accused was wearing a black sweter and a black long trouser. He was wearing nothing on his head. 2nd accused was wearing a jacket like a dark brown one "ugolo"and a black long trouser. (2). XXD bv 1st Accused: I manage to identify you by your face and name before the incident. The Kerosine lamp had been lit on. The door was knocked once. I was injured. I was absent when you were arrested. I know you as the accused. XXD bv 2ndAccused: I managed to identify you on that night. You took me outside. You got hold o f me when you took me outside. Those bandits who were stealing my properties are the ones who attacked me. I know you by the name Ajocki. I had no torch. You are not my relative. You have no share with my husband in relation to the fishing. I am telling the truth before this court. When the people came found already gone. You were being traced to be arrested. The people who responded came to rescue. You had a firearm. I did not know what you used to transport the stolen properties. I do not know whether you was found with some o f the stolen properties". There was no evidence to prove that she knew the 1st and 2nd accused before - or that she mentioned them to her husband Pw2 when he returned. According to the latter, the recovery of P2 was after he received a report on 25/7/2003 of its whereabouts. On this evidence, the trial magistrate found the case proved in respect of the 1st accused Wanzage, but on the same evidence/type of description the case not proved in respect of the second accused. Following was the reasoning: "She described 1st accused to have been wearing a black sweater and a black long trouser and that he was wearing nothing on his head. She went to described the 2nd accused to have been wearing a jacket like dark brown one (ugolo) and a black long trouser — the description about the 2nd accused was poor as to the identification to warrant conviction". In my opinion, there was no substantive difference in the victim's description of Wanzage and that of the 2nd accused. If the 3 magistrate found the identification of the second accused insufficient, he should have made the same finding in respect of the first - Wanzage. That fact plus my own re evaluation of evidence; I agree with the appellant that his identification was insufficient. I accept his appeal and order his immediate release unless otherwise lawfully held. I now come to the 2nd appellant Eliva. The evidence of her possession was contradictory. Let us examine the evidence of those who witnessed the recovery of P2. The first is that of Pw2 who said on the material issues that; "The search was conducted on 26/7/2003, we went to the home o f 4h accused where we asked about her husband who was absent The search was conducted to the home o f 4h accused and succeeded to get this engine in a grass house where it was hidden under the bed the house belonged to the 4haccused". But the investigator Pw3 said that; "After arresting J d accused we went to the home o f Phiiiipo where we found the 4h accused who identified herseif to be the wife o f Phiiiipo we told her our intention about the stolen engine o f a boat We asked the village government Chairman and another to be a witness when searching the home. The another man was Stakus Miko who was the relative o f 4haccused. At that home there were three houses, the 4h accused took a key and went to open the grass house which she opened under the bed we found this engine make Suzuki H /P15 Serial No.374175 which was identified by Pvf". Yet Pw4 the village leader said that; 'We went to the home o f Phiiiipo Meki there we found the 4h accused in the dock and there we told her our intention 4haccused agreed the search to be conducted. There were three houses, two o f grasses and one o f iron sheet We searched the kitchen which was opened by the 4haccused we found nothing in the kitchen. We went to the 2nd house o f the mother in law o f 4haccused who was absent 4haccused took the keys and opened for us that house and when we entered in that house under the bed we found one engine boat which had a biack colour. The engine was identified by the complainant to be his". The ingredient of the offence Eiiva was charged with is defined under S. 311(1) as. "311(1) Any person who receives or retains any chattel\ ... knowing or having reason to believe the same to have been feloniously stolen is guilty o f a felony". I associate myself with the description of the requisite fact as articulated by my brother Chipeta J. - in Masweda Adiga Vs R, (1992) TLR 140, that; "in order to prove a charge under section 311(1) o f the Penal Code, it must be established that the accused received or retained the property in question, and that he received or retained the same with guilty knowledge in the sense that he knew or had reason to believe that the same had been stolen or otherwise feloniously obtained or disposed of". Now the magistrate in evaluating that evidence found Eliva a guilty receiver, the reasoning went thus: "As to the 4h accused there was ample evidence brought by prosecution side that when the police went to her home. When they told her their intention she took keys for those houses and opened the doors where the engine was found under the bed which had a mattress though the 4haccused refuted that the house where the engine was found had no door and was not used. This show that was hidden she had a knowledge that it was stolen and that the responsible was her husband who fled the arrest Had she said the truth as prosecution side adduced its evidence then this court might have taken into account that she was not aware the engine might have been stolen. I am o f the view that the 4h accused must be criminal responsible as stand charged" On the above evidence however, it can not be said with the required certainty that Eliva knew that P2 was in the house. Several houses were searched before it was found. Apart from that, if she was a guilty receiver probably from her husband who escaped; she would not have volunteered the key. Further, as a mere wife in a typical African household, how much choice did she have; could she said to have had a say in what her husband supposedly brought in the homestead. I believe not. In the circumstances, I also find her not guilty; allow her appeal and order her immediate release unless otherwise lawfully held. Sgd: R. M. RWEYEMAMU JUDGE 24/4/2006 Date: 24/4/2006 Coram: Hon. R.M. Rweyemamu, J 1st Appellant: Wanzage Morice Johanes - Absent 2ndAppellant: Eliva Philipo - Absent Respondent: Mr. Kiria SA B/Clerk: Mr. M. Said Court: Judgment read in open court this 24th day of April 2006 as per coram above. Sgd: R. M. RWEYEMAMU JUDGE 24/04/2006