20090427 TZHC Mbeya

IN THE HIGH COURT OF TANZANIA ATMBEYA DC. CRIMINAL APPEAL NO: 109 OF 2005 FROM THE DISTRICT COURT OF KYELA CRIMINAL CASE NO. I 06/2004 ALFRED NGONYANI. ................... APPELLANT •.·- VERSUS THE REPUBLIC .......................... RESPONDENT JUDGEMENT .31/3/2009 & 27/4/2009 HON. LUKELELWA, J. The appellant Alfred Ngonyani was on 31 st January 2005 convicted by Kyela District Court in Mbeya region °-n ~ charge of Shop Breaking and Stealing contrary to sections 296 and 265 of the Penal Code and sentenced to five years imprisonment. · The appellant is aggrieved and has preferred an appeal to this Court. Evidence was led at the trial Court that, in the night of 30.7.2004 a shop belonging to PWI Christopher Mwambungu. ~~s broken into and an assortment of Shop articles including some packets of cigarettes stolen therefrom. The value of the stolen properties was estimated at shs.4,021,630/=. Evidence also claimed that a shop belonging to a local Primary Court . Magistrate was also broken into, and some bundles of cigarettes stolen therefrom. f / The incident occurred at ·Ipinda village in Kyela District, PWI received a telephone call on 30/7/2004 at about 5 a.m. early in the morning, ,, informing him of the incident. It was the evidence of PW2 Watson Mwaikuge who runs a tailoring mart at Ipinda village that on 30/7/2004, he was going at his place of work at around 3.00 a.m. when he saw the appellant outside the shop of PWl. He was ordered not to proceed to his place work, so he returned to inform the brother of PWl that the shop of PWl had been broken into.· PW2 did not inform the Court why he had to go to his place of work so early at 3.00.a.m. in the night. He did not disclose as at what distance he identified the appellant although he stated that he was aided by electricity light coming from the shop house, and that he did not know the appellant before the incident. PW3 Gabriel Mwakabungu deposed that he was a driver, employed by PWI. On 30.7.2004 at about 3.00 a.m. he was awakened by PW2 who informed him that the shop belonging to PWl had been broken into. They moved to the scene of incident, later rode on a motorcycle towards Kyela town. When they reached Fubu village they saw three persons in·· front of them. They suspected the three persons who were carrying some loads. They stopped their motor-cycle, and the three persons dropped down the loads and took on their heels. PW3 mounted a chase and managed to arrest the appellant. According to PW4 Laiton Mwakamwambe who had accompanied PW3 "after PW2 had stopped his motor-cycle, the appellant plunged himself in water and wadded through the water before he was arrested. 2 When interrogated the appellant replied ·that he was commg from Songea and that he had been sent by one Cobra, and another. The appellant was sent to the police station, where PW5 C.9793 . . . D/Cpl Nicolaus made further investigations of the case. The appellant had his caution statement recorded by PW6 F 46 DIG. Severin. The appellant had told the trial court in defence that on 30/7/2004 at 6.00. a.m. he was on his way to Malunde from Kyela, where he had gone to purchase Cocoa. He had travelled in a Landdrover 110 motor-vehicle which was heading to Materna from Kyela. The motor-vehicle got a puncture at Mbaka river and he decided to proceed on his journey on foot. When he reached Fubu river he met a girl who had a bicycle who asked him to fill air in the tyre of her bicycle. Then he saw a motorcycle which stopped. They called the girl, and that the men began beating him saying that he was taking their wives. He was then taken to Ipinda village, where the villagers were · informed that he was a thief. He was latter taken to Kyela Police station. He urged the trial Court to disregard the caution statement, as it was written by a Policeman, and he was forced to sign the statement. In convicting the appellant the learned trial District Magistrate held that the appellant's evidence in defence did not raise any reasonable doubt on the prosecution case. Since the appellant was found in possession of the stolen properties in the same night of the theft the doctrine of recent possession was applicable. The appellant is challenging the findings of the trial Court. 3 ,. .,., • ·... ., ,l ,· ~- ~ \ i·:- / I I go along with the appellant that he was not positively identified at the scene of incident. PW2 who did not know the appellant before the incident could not have positively Identified the appellant. PW2 did not describe he appearance of the appellant and the distance he made the identification and the time he had the appellant under observation. The test lai~ in Waziri Amani v. Republic [1980] TLR 250 was not met. As regards, the doctrine of recent possession, the same could not be invoked in the circumstances of this Case, as PWl did not positively identify the cigarettes found in possession of the appellant as belonging to him. In order to make correct identification of the stolen properties PWl had to . • ... show special· marks on the cigarettes or cartons containing the packets of cigarettes. The receipts for purchasing the cigarettes were not enough. See George Mingwe Vs Republic [ 1989] TLR 10, and the case of David Chacha and 8 others Vs Republic. (CAT) Criminal Appeal number 12 of 1997 (unreported), where it was held hat, "It is trite principle of Law that properties suspected to have been found in the possession of the accused person should be identified by the complainants conclusively. In a Criminal charge it is not enough to give generalized description of . property." As regards the retracted confession made by way of caution statement before PW6, the Court was enjoined to consider the overall evidence on record and the circumstances in which the statement was recorded in order to determine whether the statement was voluntarily made by the appellant. However this was not done. In any case, the court believed the evidence of PW3 and PW4 that after seeing them on a motor-cycle which they stopped, the appellant and two others dropped their luggage and took on their heels, the appellant 4 plunging in water. The appellant act is not in keeping with a conduct of an innocent person. Since the appellant disowned the luggage of the cigarettes, and there was no adverse claim on· those cigarettes, and avoiding legal technicalities in preference to substantial justice, I hold that the cigarettes belonged to PWl. The appellant was therefore properly convicted. S.B. L ~ A JUDGE. (" 27.4.2009 5