augustino martin ndunguru another vs republic 2007 tzhc 235 18 april 2007

IN THE HIGH COURT OF TANZANIA AT SONGEA PC CRIMINAL APP. NO. 2 OF 2005 MBINGA D/COURT CR.APP.N0.6/2004 (ORIGINAL LANGIRO PR/C/CR.C.N0.332/2003) 1. AUGUST1NO MARTIN } NDUNGURU } 2. MAJOLINO TITUS {...APPELLANTS CHAULA } VERSUS: THE REPUBLIC ........................ RESPONDENT 5/3/2007 - Hearing Concluded 18/4/2007 - Judgment Delivered JUDGMENT KAGANDA, J. This is a second appeal, the case originates from Criminal Case No. 332 of 2003 which was decided at Langiro primary Court. The appellants were charged and convicted o f Cattle theft contrary to section 265 and 268 of the Penal Code and were both th sentenced to 15 years Imprisonment. It was alleged that on 12 November, 2003 at 6.00 p.m. the two appellants stole three goats belonging to one, Frorensi K. Komba. The goats’ value was 30,000/= in total. The prosecution case was based on circumstantial evidence adduced by three witnesses. The principal witness was SMI, Frorence Komba who alleged as follows:- “ ...M nam o tarehe 12/11/2003 nilikwenda kufunga mbuzi malishoni, jioni nilikwenda kufungua nilikuta hakuna mbuzi hata mmoja, watatu walirudi nyumbani, wengine hawaku- onekana, nilifuatilia bila mafanikio nilitoa taarifa kwa Mwenyekiti wa Kitongoji na alidai hana taarifa yeyote. Nililala asubuhi niliwata- futa bila ya mafanikio, ndipo nilipoanza kukata tamaa. Tarehe 27th Novemba, 2003 nilipata taarifa inatoka Mbuji lcuwa nifike kutambua mbuzi hao, tarehe 27th Novemba, nilifika Mahakamani nilitambua mbuzi hao.” 2 He then tendered the goats as exhibit to the court without stating how he Identified or claimed title. He did not give any description to the Court nor the chairman o f Kitongoji SM.3. SM.3 testified that, the two appellants had asked him to give a permit for transporting seven goats. He then asked them o f their legality and they produced receipts for two goats, he then suspected them to have stolen the rest and ordered for their arrest o f Identity, SM.3 alleged that the animals were of different colours without mentioning specific one. On cross examination he alleged that it st was 1 appellant who asked for the permit but he, issued the permit in the name o f both. Having examined SM.I and SM.3’s evidence I recall, these were the same animals claimed by one Nicodemu January Nchimbi in Criminal Case No. 324 of 2003 filed before the same court. Neither of the two complainants gave a proper or any description to the animals alleged to have been stolen. On defence 1st appellant claimed to have bought the animals from Petro Ndunguru on 16th November, 2003. 2nd appellant claimed to have just given company to 1st appellant but had no claim to the animals. 3 The appellants have advanced six grounds o f appeal challenging both the trial courts decision and the first appellant court. Their challenge is that, the prosecution failed to prove their case beyond reasonable doubt as required by Law. The second appellant argued that, his presence at the Kitongoji Chairman SM.3 alone was not sufficient to prove of his participation to the crime. They both argued that SM.I did not identify the stolen animals sufficient to establish title, basing in the decision entered in the case o f Mohamed Ismail V R (1975) LRT. 31. Judge Bramble, held among other things that:- (1) “Where the Identification o f stolen goods Is necessary the prosecution must prove beyond reasonable doubt that the goods found with the accused were those o f the complainant. (2) A witness must not only say that he identifi­ es the stolen items but must also say by what means he does so. Similarly in the case at hand, the complainant’s basis of Identification did not specify by indication as what means he relied on i.e. by special Marks or any other means. 4 The learned State Attorney Mr. Sedekia supported the appellants grounds o f appeal mainly on the issue of Identification. He submitted correctly that had the identification been sufficient for the complainant to claim title then the appellants could have been convicted o f the offence on the doctrine recent possession but in this case the Identification was insufficient. He correctly cited the decision in the case o f George Mingwa (1989) TLR No. 10. The learned State Attorney emphasized that, the matter being a Criminal Case, it was upon the prosecution to prove it beyond all reasonable doubt, and I support him totally. This court has pointed out in several cases o f similar nature that, the accused has no duty to prove his case. All that is needed is for him/her to shake the prosecution case no matter how slight. In the case at hand, the first appellant claimed to have bought the animals from Petro Ndunguru and claimed further that it was not his first time to have bought goats from Petro as he had done so several times. That was sufficient to cast doubt on the prosecution case. On dealing with cases involving the theft of some property, it is essential for the prosecution to prove that the property belongs to someone else and that person must prove title to it. Osbarn’s Concise Law Dictionary, 8th Ed defines very clearly the offence as follows:- that, 5 “A person is guilty o f theft if he dishonestly appropriates property belonging to another with the Intention o f permanently depriving the other o f it whether or not the appropriation is made for gain or for the th ie f s own benefit. (Underline is mine for emphasis). Section 257 (1) and (3) o f the Penal Code defines it even better on that:- (1) “Every inanimate thing which is the property o f any person and which is movable, is capable o f being stolen.” (2) “Every tame animals, whether tame By nature or wild by nature that tames, Which is the property o f any person, Is capable o f being stolen. Reading through these sections the emphasis is on the fact that the property must belong to a person, as such that person must prove title to it. Section 258 defines theft with much emphasis that the stolen property must belong to another person other than the general or special owner. It calls therefore that the person who claims title or ownership must prove it. That can only be done by 6 that person on the Identification of that property with specific or special marks which is unique to him or her only. Having observed so, I find the appeal has merit and it is hereby allowed. For the appellants, unless otherwise they be held legally they may be let free forthwith. Both the two lower courts judgments are hereby quashed and sentence set aside, plus any other orders. Right to appeal explained. s.s. k a g 'a n d a , JUDGE. 7.4.2007 18/4/2007 Coram: Hon. L.M.K. Uzia, J. For Appellants: Present. For Respondent: Present. C/C: Harriet. 7 Mr. Sedekia, State Attorney - My Lord the matter is for Judgment. Judgment delivered in the open court before the appellants and the respondents today on 18/4/2007. L.M.K. UZIA, JUDGE. 18/4/2007 SSK/ESY.