20110815 TZHC Dodoma

... IN THE HIGH COURT OF TANZANIA AT DODOMA (DC) CRIMINAL APPEAL NO. 7 OF 2011 (Originating from Criminal Case No. 55 of 2010 of Kondoa District Court at Kondoa) 1. MASANGULA TWANGULU 2. JUMA RAMADHAN@ SHABAN ........... APPELLANTS VERSUS THE REPUBLIC .................................. RESPONDENT JUDGMENT 06/6/2011 & 15/8/2011. KWARIKO, J: The appellants herein and another one IDD 5/0 HUSSEIN the then third accused person were arraigned before the trial court with the offence of Cattle Theft contrary to section 265 and 268 fo the Penal Code Cap. 16 Vol. 1 of the Laws Revised Edition 2002. It was alleged by the Prosecution that the three had jointly and together on 25th day of April, 2010 during night time at King'ang'a prison within Kondoa District in Dodoma Region stolen one head of Cattle valued at Tshs. 250,000/= the property of 1 I ' King'ang'a prison. The appellants and another denied the charge hence their trial. The evidence at the trial as revealed by the prosecution is to the effect that the appellants herein were prisoners at King'ang'a prison at the material time. That on 25/4/2010 they went to graze cattle and returned them where they were counted by No. 571 Cpl JACKSOn and his colleagues. In the morning they found one cattle missing where investigation was conducted. The first appellant was interrogated and admitted that he stole the cattle in the company of the 2nd appellant and sold it to the then third accused who was a former prisoner at King'ang'a prison. Upon arrest the 2nd appellant also confessed the allegations and mentioned the 1st appellant as his accomplice and that they sold the cattle to the then 3rd accused person. The 3rd accused was arrested but was not found in possession of the stolen cattle. Three Caution Statements for the appellants and another were tendered by No. D 6052 DCPL SAID (PW4) and NO. D. 7347 DCPL KICHONGE (PW5) which were admitted in court as exhibits PEl, PE2 and PE3. In their defence the appellants denied the allegations where the 1st appellant said that he returned the cattle on 25/4/2010 and no one was missing. That he denied the allegations at the police and the 2nd appellant may have mentioned him due to torture by prison officers. The 2nd appellant also said that on 25/4/2010 when he returned the cattle and upon counting no one was found missing. That he did not admit the 2 ' ' allegations but only was mentioned by the 1st appellant. He was released on President's mercy for the former offence but was arrested on 26/4/2011. The third accused only raised a defence of alibi to the effect that he was on safari between 18/4/2010 and 27/4/2010. The trial court found that the prosecution case was not proved beyond doubt against the third accused hence was acquitted of the charge. The case against the appellants herein was found to have been proved beyond reasonable doubts and they were accordingly convicted and sentenced to five (5) years imprisonment each. · The appellants were aggrieved . with the trial court's decision hence filed this appeal. In their joint petition of appeal the appellant raised about seven (7) grounds of appeal but they are essentially complaining th at the prosecution case against them was not proved beyond reasonable doubts. During the hearing of the appeal the appellants prayed their appeal to be allowed. The respondent Republic was represented by Mr. Kahangwa learned Senior State Attorney who opposed this appeal. Mr. Kahangwa was emphatic that the appellants' Caution Statements proved that they were responsible for the cattle theft as they admitted the allegations. That since the appellants were herdsmen they ought to have explained how the cattle went missing. 3 In the rejoinder there of the appellants contended that they never confessed anything before t he police and that the police tortured them which fact was relayed to the trial Magistrate. That they could not have stolen the cattle at night since they were asleep and being guarded by prison officers. The issue to be decided here is whether the prosecution case against the appellants proved their guilt beyond reasonable doubts. The evidence available against the appellants are their own confessions exhibits i.e PE1 and PE 2 where they mentioned each other that were responsible for the theft. The Caution Statements were not objected by the appellants when they were tendered in court. The question to be asked in whether the trial court properly relied to these Caution Statements. Although the appellants did not object these Caution Statements but the same were not taken in accordance with the law under section 57 (2) (a) of the Criminal Procedure Act, Cap. 20 Revised Edition 2002 which says that; "Where a person who is being interviewed by a police officer for the purpose of ascertaining whether he has committed an offence makes, during the interview, either orally or in writing, a confession relating to an offence, the police officer shall make, or cause to be made, while the interview is being held or as soon as 4 ' ' In the rejoinder there of the appellants contended that they never confessed anything before t he police and that the police tortured them which fact was relayed to the trial Magistrate. That they could not have stolen the cattle at night since they were asleep and being guarded by prison officers. The issue to be decided here is whether the prosecution case against the appellants proved their guilt beyond reasonable doubts. The evidence available against the appellants are their own confessions exhibits i.e PEl and PE 2 where they mentioned each other that were responsible for the · theft. The Caution Statements were not objected by the appellants when they were tendered in· court. The question to be asked in whether the trial court properly relied to these Caution Statements. Although the appellants did not object these Caution Statements but the same were not taken in accordance with the law under section 57 (2) (a) of the Criminal Procedure Act, Cap. 20 Revised Edition 2002 which says that; "Where a person who is being interviewed by a police officer for the purpose of ascertaining whether he has committed an offence makes, during the interview, either orally or in writing, a confession relating to an offence, the police officer shall make, or cause to be made, while the interview is being held or as soon as 4 practicable after the interview is completed, a record in writing, setting out- { a} So far as it is practicable to do so, the questions asked of the person during the interview and the answers given by the person to those questions". Therefore, if the Caution Statements were taken in accordance with the afore mentioned provision of ,.the law they ought to be in the mode of questions and answers. The appellants' Caution Statements were just narrative from them and thus the law was not complied in this respect (see also SEKO SAMUEL V R, Criminal Appeal No. 7 of 2003, Court ofAppeal of Tanzania, unreported) Alternatively, if the Caution Statements were taken in conformity with section 58 of the Act, (Supra) the same were supposed to be written by the makers i.e. the appellants personally and the prosecution did not say that it was the case. Thus, legally the Caution Statements were not good evidence and they are hereby expunged from evidence. Even if the appellants' confessions were to be regarded but its contents do not prove the allegations. The 1st appellant did not say in his alleged confession that he committed the offence. He also only said that the 2nd appellant had persuaded him to commit the theft but refused and was not there when the cattle was stolen. And even if the court relied to 5 the evidence of co-acucsed it had not warned itself of its dangers without corroborative evidence before it entered conviction. Also, the court has reviewed he charge and found that the same alleged that the appellants stole the cattle during night time. How could possibly a prisoner steal a property at night while he is supposed to be sleeping and heavily guarded? The answer to this is that the complainant did not know who stole the cattle. After all PW2, a prison officer said that on 25/4/2010 the appellants returned the cattle and were counted and no one was found missing. That, the theft was discovered in the following morning. As to how could that have happened could have been better explained by the prison officers themselves. The same witness said he was a security guard with the appellants who were grazing the cattle and I suppose he should have known how the cattle went missing. And I believe theft by prisoner could not have been possible if there were security guards at the grazing grounds. The prosecution case generally poses doubts as to the accused's involvement in the alleged theft. If their confessions were the ones the police relied upon to bring them to book, the court wonders why they decided to make one MBEGANI MLAWA a witness (PW3) while he was mentioned by the 1st appellant as a suspected thief. He ought to have been charged along with the appellants since the evidence to that effect was not different to the evidence which was relied upon against the appellants herein. Also, if the then 3rd accused had mentioned one HAMAD S/0 6 JUMANNE as the stolen cattle receiver, why didn't the police trace him and if possible recover the cattle before charging him. I also wonder why the trial Magistrate acquitted the then 3rd accused since he confessed that he had received a stolen cattle from 2nd appellant. These are doubts which ·the trial court ought to have highlighted and addressed them and if it did so it would have resolved them in favour of the appellants. Consequently, I find that the prosecution case against the appellants was not proved beyond reasonable doubts and I hereby allow their appeal, quash their respective convictions and set aside the sentence. The appellants are ordered to be released from prison unless their continuedo incarceration is in relation to other lawful cause. Order accordingly. c~~~==~~:~1,~-~,. .·-~ >···--· -~---------- ( M. A> ARIKO) JUDGE 15/8/2011 Court:- Right of Appeal fully e:~.l~~-nJ-"~~-,,[,J c._,.,_, y. ·-t·· ... (M.A. \~ ARIRO) JUDGE 15/8/2011 7 AT DODOMA. 15/8/2011 8