francis edward chengula vs republic 2009 tzhc 199 2 march 2009

IN THE HIGH COURT OF TANZANIA AT SONCEA (DC) CRIMINAL APPEAL NO. 21/2008 SONCEA D/C CRIMINAL CASE NO. 399/2006 FRANCIS EDWARD CHENGULA............. APPELLANT VERSUS: THE REPUBLIC...................................... RESPONDENT 26.1.2009 - HEARING CONCLUDED 2.3.2009 - JUDGMENT DELIVERED JUDGMENT L.M.K. UZIA, J. This is an appeal against the decision of the District Court (Mhelela) RM) convicting the appellant in criminal case no. 399 of 2006. The appellant, Francis Chengula together with Alex s/o Chisi, the later being not the subject of appeal, were convicted of the offence of stealing contrary to section 265 of the Penal Code, Cap. 16 Vol. I of the Laws. The appellants were sentenced to a term of five years imprisonment. Aggrieved the appellant, Francis Edward Chengula appealed to this Court. in order to appreciate the pertnent issues in this appeal it is better to summarize the evidence of the prosecutor and that of the defence. The basis of conviction was the evidence of No. D.7977 sergeant waiter, who arrested the accused person in the l the house immediately after the commission of the offence, in that night PW.3 in the company of other policeman went to lay an ambush following an information brought to them by an informer, that thieves planned to steal telephone wires at Namanditi area. Four people was seen stealing wires, upon seeing the police vehicle, the alleged thieves went to hide in the nearby house. Policemen sought the assistance of the ten cell leader (PW2) who witnessed the search and a sulphate bag contained telephone wires was recovered in the house. The appellant was among the three people arrested in that night. in his defence the 3rd accused person Francis s/o Chengula, said that he visited the 2nd accused after returning late from his journey. The 2nd accused showed him a room where he would sleep, in the midnight, policemen arrested him, searched the house and found telephone wires in the house. He was not aware of the telephone wires hidden in the house, basing on that evidence, the appellant was sentenced to 5 five years imprisonment. Dissatisfied, the appellant preferred an appeal to this Court. The memorandum of Appeal contained six grounds of appeal, the trust being insufficiency of the evidence, that the policemen arrested him in the 2nd accused house, who was not present in that fateful night. That he did not steal any wire and was not part of the transaction. That he was arrested in the 2nd accused’s house while sleeping and without the knowledge of the telephone wires. 2 Mr. Mwavanda, learned state Attorney, supported the appeal, he argued that, the search conducted by policemen was not proper in the sense that, the time of search was not observed, the law is clear under section 40 of the Criminal Procedure Act, 198 (Cap. 20 r .e 2002) that it would have done before sunset. The search in this case was done in the midnight. The seizure certificate was not tendered in court as well. He further submitted that, the whole case based on suspicion because the appellant was found in the 2nd accused house, it was not proved whether he stole the alleged wire. I have gone through the lower court record, I have found that the appellant was the person who stole the said wires. The policemen acted on the information brought by an informer that thieves were preparing themselves to steal telephone wires, when they went to the place where theft would happen, those thieves saw light from the vehicle, they took to their heels and went into hiding in the nearby house with the sulphate bag containing telephone wires. There was no way the policemen made a follow up, searched the house in which they hide themselves with a sulphate bag contained telephone wires, in such circumstances, the policemen would not go to court in that night to seek permission to conduct search in that house. The appellant was found in that house, while was not the owner of the house in question. 3 He did not give enough explanation as to how he came to that house in that fateful night, the trial magistrate rightly dismissed his defence that was invited in that house by the 2nd accused person. The 2nd accused was not summoned by the appellant as his witness. To add matters worse, the 2ndaccused person absconded and left the appellant in that house. For the stated reasons, the appellant's appeal is without merit, it is hereby dismissed, and the sentence is also not excessive in the circumstances of the case. L.I\OC. UZIA > JUDGE 2 . 3.2009 Right of appeal explained. L.M.K. UZIA JUDGE 2/ 3/2009 LMKU/ESY 4