isidori mohamed joseph vs republic 2008 tzhc 204 6 june 2008

IN THE HIGH COURT OF TANZANIA AT TANGA (DC) CRIMINAL APPEAL N0.77 OF 2004 (Originating from Pangani D/COURTCR.CASE NO.36 O F 2004) ISIDORI MOHAMEDI @ JOSEPH...................................... APPELLANT VERSUS THE REPUBLIC................................................................. RESPONDENT 15/04/2008 AND 6/06/2008 JUDGEMENT SHAYO, J. The two applicants, namely, Isidor s/o Mohamed @ Joseph, and Isaya s/o Juma, (hereinafter to be referred to as the first and second appellant) respectively, and whose appeals Nos. 77/04 and 78/04 are consolidated, were indicted in the District court of Pangani with cattle theft c/s 268 of the Penal code(Cap 16 R.E.2002). They were convicted and sentenced to 15 years imprisonment Aggrieved by both their conviction and sentence, they now appeal to this court. The prosecution evidence was as follows. Pw.l Mohamed s/o Nundu, the complainant testified that on 15/4/2004 at around 9.00p.m as he come from the mosque, he was informed by his son, one Haji that his two goats had been stolen from his Kraal, and the thieves had been arrested and taken to police station. He went to police station where he met the 1st appellant and it was said that he was arrested when he was stealing the goats. He recorded his statement at the police station and he managed to identify one of the goats by its black and white colour with a black patch on the right hand side ribs: One of the goats he said had fled away but it returned the following day. Its colour was black and red. Pw.2. Bakari s/o Mohamed testified that the two appellants were known to him and that the 2nd appellant was working at their home as a milkman. On 15/4/2004 at around 9.00 p.m., he went home and his mother Mariam Said told him she heard noises coming from the goat's kraal. He was asked to go and check and as he went there he saw the door wide open. While there he made a follow up towards that direction and there he saw the two appellants carrying two goats on a bicycle. He went close and arrested the two appellants. The 2nd appellant told him that the two goats were his so he requested him to go back home while he tightly held the 1st appellant and took him to police station with the two goats. Pw.2 went on to testify that the 2nd appellant ran away when he told him to go back home. That the 1st appellant then mentioned the place where the second appellant had hidden. They went to that place and managed to arrest the second appellant. He identified the two goats by colour, one she goatl was white in colour with black patch, while the second male goat had red and black colour. He tendered the two goats as exhibit marked PI. On cross examination by the 1st appellant, Pw2 further testified that he arrested the 1st appellant with two goats, one of them ran away and the second ran away also. Cross examined by the 2nd appellant, Pw2 told the court that the 2nd appellant carried the two goats while the 1st appellant rode the bicycle. In reexamination he further said that when he was arresting the two appellants one Kiluwa and Ally were present. PW.3. Andrea s/o David, testified that he worked as a herdsman rearing Pw.l's goats and was working together with the 2nd appellant. That on 15/4/2004 around 8.00 pm the two appellants were arrested while in possession of the stolen goats property of PW.l. He was so told by Pw.2 Bakari s/o Nundu that the two appellants were caught during the^right while in possession of two stolen goats. He went to police station and them took part in arresting the 2nd appellant who ran away. He (Pw.3) went on to depose that at the police station he saw one she goat which was black and white in colour. That prior to the incident during the day, he had taken the goats to the pastures including the two stolen goats. He then safely returned all the goats to their cage which, when locked, would not allow goats to go out or pass through. The two appellants were finally changed with this offence. In his defence the 1st appellant testified that he was not arrested while in possession of stolen goats as alleged. He was arrested near Kasimu Shekombo Petrol station and taken to Pw l's home. He was kept under arrest and. a youngman was sent to fetch a goat from the cage. He was then taken to police station with the goat. That he was arrested on the way to police station and while there the 2nd appellant where was employed by Pw.l was brought and also a second goat. They were then jointly charged. On cross examination by the prosecution he further deposed that he once worked for Pw .l cutting grasses but he later resigned as he was exhausted . .He went on to say that he had no grudges with Pw.l and he could not know why Pwl fabricated this case against him. The 2nd appellant on his part deposed that he returned from work on 15/4/2004 at 6.30 pm and around 8.00pm he went to bed. After a short while later during the right Pw3 knocked on his door. As he opened the door two people with a gun stoned in and put him under arrest. He was told he was needed at the police station but was not informed why. They went to police station where he was locked up till next day when they were taken to court and jointly charged with the 1st appellant on allegation that they had stolen a goat. He, however, decided to have committed the alleged offence. DW.3 Amina Mfaume testified for the 2nd appellant to the effect that on 15/04/2004 the 2nd appellant return from his job at 6.30 p.m . She prepared dinner, then went for bath and they went to bed. That some few minutes there after the door was knocked by PW.3. DW.2 - 2nd appellant opened the door and two police stormed in and arrested Dw2 without mentioning the offence he had committed. In their memos of appeal, and at the hearing of this appeal, the two appellants invariably complained that there was insufficient and cogent prosecution evidence to connect them with the offence, and that the sentence was too severe. They thus urged this court to allow their appeal. Ms.Salum, learned State Attorney, supported the conviction of the 1st appellant but not that of the 2nd appellant. She.urged that there was sufficient against the 1st appellant in connection with the charged, but that there was no evidence to implicate the 2nd appellant. Ms. Salum this urged this court to dismiss the appeal against the 1st appellant and allow the appeal against the 2nd appellant. I have dispassionately considered the whole of the evidence and the arguements raised by the appellants and Ms.Salum in support of their respective stances. On the evidence I am in deed of the strong view that the prosecution case depended entirely on the credibility of the witnesses. The question now for determination is whether PW .l, PW.2 and PW.3 were credible witnesses in the circumstances of this case. It would appear the trial magistrate on his evaluation of the evidence, accepted PW .l, PW.2 and PW.3 as witnesses of truth, and he thus arrived at a finding that the two appellants stole the alleged goats from the complainant. With respect, the flow of the testimonies of the three prosecution witnesses leaves a lot to be desired. Firstly, PW .l was not present when the two appellants were allegedly "arrested" if we may safely used that term and not "apprehended." He was only informed by one Haji (his son) that his two goats had been stolen from his kraal and the thieves had been arrested and taken to police. One Haji did not testify in court so what PW .l said amounts to hearsay. Not only that, PW .l said he went to police station where he met the 1st appellant, and he was told that the 1st appellant was arrested when stealing the goats. PW .l would not mention the person who said that the 1st appellant was arrestee4 when steeling the goats. This version.was P W .l's own making hecausc neither PW.Z nor PW.3 testified to that effect. No police witness testified in court in support of that either. Secondly, PW.2'S testimony was no better. He told the court that as he followed up towards the direction the goats scream noise was coming he saw the two appellants carrying two goats on a bicycle. He went close and apprehended the two. That the 2nd appellant told him that the two goats were his so he requested him to go back home and meanwhile he held the 1st appellant tightly and took him to police station with the two goatsf Surprisingly, PW.2 later changed his version to the effect that the 2nd appellant ran away when he asked him to go back home. Then the 1st appellant mentioned the place where the 2nd appellant was hiding. They went to that place and managed to arrest the 2nd appellant. This is pure contradiction; If it is true PW.2 asked the 2nd appellant to go back home and he did so, how could it be possible the 1st appellant who was then tightly held up by PW.2 saw the 2nd appellant going into hiding, mention that place and finally go with PW.2 to arrest him. And if so, when then did PW.2 take the 1st appellant to police station with the two goats?_ There is yet another short-fall on PW.2's evidence. At first he said he arrested the 1st appellant with two goats and sent him to police station. But when cross examined by the 1st appellant he charged his version to the effect that he arrested the 1st appellant with two goats, one of the goats ran way and the second goat ran away also. If that is true, then obviously he must have taken the 1st appellant to police station without the alleged two goats. May be the contradictions contained in PW.2's testimony could have been cleared by the two persons-he mentioned were present when he was apprehending the two appellants. These were Kiluwa and Ally who apparently never testified in court. They would have corroborated the evidence of PW.2, as in the absence of such evidence the testimony of PW.2 for all purposes of intent is rendered naked. Thirdly, PW.3's evidence as well could not salvage the situation. He was only told by PW.2 that the two appellants were caught during the night in possession of two stolen goats. He said he went to police station where he saw one she goat. But what is surprising is that he said he took part in arresting the 2nd appellant who had ran away. Apparently, one wonders how did he knew that the 2nd appellant had ran away. PW.2 who contradicted himself on that issue was not even heard mentioning PW.3 throughout his testimony that he was present when he apprehended the two appellants. It really pains to note that even the police officer who as a matter of procedure must have arrested the appellants and charge them was not called to testify. Had he done so, no doubt he would have filled in the gaps left over by the three prosecution witnesses. The prosecution evidence was in the circumstances not sufficiently strong enough to prove the charge against the two appellants. Conversely, the defence version was enough to raise a reasonable doubt on the two appellants guilt. The trial court therefore misdirected itself on the evidence and erroneously convicted the appellants. The appellants conviction was faulty and for that reason it cannot be left to stand. Even assuming that the two appellants conviction was sound, the sentence of 15 years imprisonment imposed by the trial court was illegal. Under section 5(a) of the Minimum Sentences Act (Cap.90 R.E. 2002) the minimum statutory sentence for cattle theft is 5 years and not 15 years. . In the final result, the two appellants conviction is quashed and their sentence set aside. It is further ordered that they be released from custody forthwith unless they are otherwise lawfuUy held. a .a . m | M a y o , j . 26/5/2008 a this 6th June, 2008. A.A.m(^AYC>, 3. 6/6/2008 For Appellant's: Present in person. For Republic/respondent: Ms. Msofe - S/A.