20110909 TZHC Dodoma

.;1-t· ' I I . ' t .". . IN THE HIGH COURT OF TANZANIA ) AT DODOMA. (APPELLATE JURISDICTION) (DC) CRIMINAL APPEAL NO. 46 OF 2010 ( Original Criminal Case No. 264 of 2009 of Manyoni District Court at Manyoni) RAPHAEL MTILIKO@ NYANGENYANGE & 3 OTHERS ...... APPELLANTS VE.RSUS THE REPUBLIC ......................................... RESPONDENT JUDGMENT 08/6/2011 & 09/9/2011. KWARIKO, l: The facts of this case which led to this appeal from the prosecution reveal the following: On 26/8/2009 one REEGWA S/O MA5IKA (PW1) who was aged 15 years a resident of London village within Manyoni District drove 26 heads of cattle to graze in the bush. The cattle were the property of PWl's uncle SHABAN! 5/0 IDEMESHI the then third accused person, EMANUEL S/O ATHUMANI, PW2 and YOHANA 5/0 KOLE, PW3 but they were being kept at the 3 rd accused's home. 1 ..• ""' While in the grazing grounds at about 10.00 am PWl s-aw three people coming towards him. When they got there one of them greeted him and beat him up and he fell down. The one .. :· ,~·-r of .. _T.~ Who beat him was identified to be the 2 nd appellant herein. PWl was threatened with machetes and his robe was cut and a piece was used to blindfold him and was tied up with ropes. That, the thugs took the cattle away while the 2 nd appellant kept guard of him until 6.00 pm and when he found that he was alone, he removed the blinds and ropes and ran home. PWl met the third accused at home and revealed the robbery. Then PW2 was informed and so as PW3. A follow-up was made and information was received that the stolen cattle were being transported to Dar es Salaam in a lorry made Fusso which was previously seen at the material village. Report was sent, to Manyoni Police and through communication the lorry was intercepted at Morogoro where the cattle were found in the possession of the 1st appellant herein. The then 6th accused person BOAZ ISACK was the driver of the lorry and the 3 rd appellant was in the company of the 1st appellant. Upon interrogation the 1st appellant said that he bought the cattle from the then third accused person at London village and had secured permits from the District Agricultural and Livestock 2 • i, Office to transport the same which were found to be forged ( ) documents. Also, the 1st appellant was found with a mobile phone whose one of the communications led the police to the 2 nd appellant's wife (mama Meshack). When the second appellant's wife was arrested she mentioned the 4th appellant as one of the persons who knew a lot about this transaction. The 4 th appellant was thus arrested. The 2 nd appellant went to the police with his wife and PWl pointed him as one of his assailants. He was thus booked. PW2 and PW3 testified that the then 3rd accused was incapable of betraying their trust since he had kept their cattle for a long time up to about four years. Armed with the foregoing the appellants herein, 3rd accused and 6th accused were charged with the offence of Conspiracy contrary to section 384 of the Penal Code Cap. 16 Revised Edition 2002 where it was alleged that the six had between 25 th day of August and 26 th day of August 2009 at unknown time at London village within Manyoni District in Singida Region conspired to commit cattle theft. Secondly, the appellants herein and 3rd accused were charged with the offence of Armed Robbery contrary to section 287 A of the Penal C ode Cap. 16 Revised Edition 2002 as amended by Act No.4 of 2004. It was alleged that the five had on 26/8/2009 at about 10.00 hours at London village 3 ........ ~ ·,_ ·:.•''!:;.• .... ,. ·.- - . within Manyoni District in Singida Region stolen 26 heads of cattle valued. at Tshs. 7,800,000/= the property of EMANUEL S/O ATHUMAN and used machete to threaten REEGWA S/O MASIKA in · order to obtain the stolen property. • :• ··:, r'f ' •,.,I In the third court the 1st appellant was charged with the offence of Forgery of Official Document contrary to section 339 of the Penal Code Cap. 16 Revised Edition 2002 where again it was •.• alleged that on the 29 day of August 2009 at about 17 .00 hours at Manyoni District and Singida Region the 1st appellant was found in possession of forged Animal Heath Livestock Movement Permit for aim of facilitating movement of the stolen 25 heads of cattle to the desired destination. The appellants herein and the two others denied the charge in their respective counts and hence their trial. During the trial the 1st and 4th appellants' Caution Statements were admitted in court as exhibits P7 and PS respectively. A piece of robe (bed sheet), one machete, 1st appellant's mobile phone, cattle's pictures and cattle movement permit were also admitted in court as exhibits Pl, P2, P3, P4 and P6 respectively. In their respective defences the six denied the allegations. The 1st appellant testified that he travelled to Manyoni on 21/8/2009 to look cattle to buy from the auction. That one youth 4 ~ " " ' - 1 f l < I . : . •, .•,, , ., - -- -- -i I came and informed him that his uncle who happened to be the !() I . third accused had cattle for sale. The third accused came and the sale transaction was concluded for 25 heads of cattle valued at Tshs 3, 700,000/=. That, the cattle were selected among 58 cattle rd in the 3 accused's home, and the Village Executive Officer was there. He hired a lorry to transport the cattle to Dar es Salaam from the then 6th accused and a cattle movement permit was issued to him by the VEO in the name of AHMAD HUSSEIN who was 3 rd accused's uncle. The 1st appellant further testified that the 4 th appellant was asked to assist in embarking the cattle in the lorry and the exercise was done at 11.00 am on 26/8/2009, and the tax collector received money from him and a receipt was duly issued. That, until they were arrested at Morogoro there were no any stoppage in all the areas they passed and the permit was shown to relevant authorities. He said the permit which was issued by the VEO was detained at the livestock office. The second appellant said that he was arrested on account of his communication with the 1st appellant who was his wife's relative. That, he knew that the 1st appellant had bought cattle and he was a bona fide purchaser. The third appellant's defence was that he was hired by the 1st appellant on 25/8/2009 to assist him to embark the cattle in the lorry at Tshs. 30,000/= a job he 5 did with the 4 th appellant and one Antony. That, it was the 3 rd accused and PW1 who brought the cattle to the place where the ' lorry ·had parked. He did not know the 2 nd appellant before. The 4th appellant's defence corroborated the 1st and 3 rd appellants' account that he also assisted to embark the cattle in the lorry. The cattle were brought by PW1 and the third accused. That he did not know the 2 nd and 3rd appellants before. He was a resident of London village. The then 3 rd accused denied to have sold the cattle to the 1st appellant and the 6th accused admitted to have only been hired to transport cattle to Dar es Salaam at a pay of Tshs. 800,000/=. At the end of the trial the appellants herein were found guilty of the offence of conspiracy since they were seen together at London village before the cattle were stolen. That, the 2 nd appellant's wife told PW4 to look for the 4 th appellant to get all the information and the 4 th appellant admitted in his Caution Statement to have assisted the 1st appellant in his evil deeds. They were convicted and sentenced to seven (7) years imprisonment each. 6 In the second count of Armed Robbery the trial court found nd that the 2 appellant was sufficiently identified by PW1 at the scene and the 1st appellant was found in possession of stolen I _;'• cattle. That, the 1st appellant failed to prove by documentary evidence that he brought the cattle from the then 3rd accused person. The 1st appellant was also found with forged document in relation to cattle's movement and he failed to prove that he over met the London village Executive officer. The two were thus found guilty, convicted and sentenced to thirty (30) years imprisonment. As for the third count against the 1st appellant was found to have been proved since PW4 and PW6 TELESPHORY MTAGWABA evidenced sufficiently that the cattle's movement permit he had presented was forged since the author had died in April, 2009. He was thus found guilty, convicted and sentenced to three (3) years imprisonment. The sentences for the 1st and 2 nd appellants were ordered to run concurrently. Having been aggrieved by the trial court's decision the appellants filed this appeal against both conviction and sentence. Each filed his own grounds of appeal where they are essentially complaining that the case against them was not proved beyond reasonable doubts. 7 .. During the hearing of this appeal the appellants adopted their grounds of appeal and argued the court to allow their appeal. On the other hand Mr. Wambali learned State Attorney appeared on behalf of the respondent Republic and he opposed this appeal. It was Mr. Wambali's contention that PW1 sufficiently identified the 2 nd appellant at the scene since he was his village mate and it was day time. That the 1st and 3 rd appellants were found in possession of stolen cattle and had no reasonable explanation on how they came about them. That the 1st, 2 nd , 3rd and 4th appellants were also seen together before the robbery hence the offence of conspiracy had been proved against them. The 1st appellant was also found in possession of forged document and thus was rightly convicted with the offence of forgery of official document. At this juncture, I find the issue to be decided to be whether the charge against the appellants was proved to the standard required in law; that is, proof beyond reasonable doubt. It is in record that the trial court convicted the appellants herein with the offence of conspiracy since they were seen together at London village and/or communicated to each other before the alleged robbery. That the meeting and the communication were termed to be conspiring to commit cattle theft. However, I find that no evidence was led to show that these appellants had met to discuss anything concerning Cattle Theft or Armed Robbery. No 8 .' • ,,., ' . • ·, ,.. . -• :,, ,' '.~"-.. ,;. ,~" ~ ... I':-'~~ - witness also came to prove where these four had met to discuss these evil deeds. The alleged 2 nd appellant's wife who was said to . ,.' , have mentioned the 4 th appellant to be with sufficient knowledge of ·theft and/or robbery plot was not called to testify. Thus her information remained a hearsay which is not evidence at all. However, the meeting and/or communication between the · appellants did not go without explanation. The 1st appellant admitted that he met the 4th appellant and asked him to assist to load the cattle in the lorry and transport them which fact was not controverted by the 4 th appellant; his defence was in the like effect. The 1st appellant admitted that he had gone to London village to buy cattle where he actually bought from the 3rd accused person. The 3rd appellant also said he assisted the 1st appellant to load the cattle in the lorry at London village and no evidence was tendered to controvert this fact. The 1st appellant is related to the 2 nd appellant and if there was any communication between them it was because of their relationship. After all the proved communication was between the 1st appellant and the 2 nd appellant's wife who is her relative. If the said communication led to the arrest of the 4 th appellant and consequently 2 nd appellant why didn't the police charge the 2 nd appellant's wife with the offence of Conspiracy? The answer to this was not forwarded by the prosecution. And if the prosecution had relied to the 2 nd appellant's wife's information to book the 9 -, ;,. . ,. ...... ..... ... ,).. ,r-~~:.."\l-.:· ►.' ·- appellants then why didn't they bring her to testify to prove the I l allegations? There was no any explanation to fit this question. Consequently I find that the offence of conspiracy was not proved against the appellants to the standard required in law. As for the offence of Armed Robbery against the 1st and 2nd appellants this court finds that the 2nd appellant's identification at the scene was not water tight. If PW1 testified that soon after invasion he was blindfolded how could he have identified his assailants? He did not explain the time the thugs took after invasion and the blindfolqing. He also did not explain how he could have possibly identified the person who kept him guard after the cattle had been driven away to be the 2 nd appellant if he had been blindfolded all the time from 10.00 am to 6.00 pm. Further, if PW1 had identified the 2 nd appellant at the scene why wasn't he immediately arrested since he was known to the witness before? It is surprising that PW1 and 3rd accused started tracing the cattle away from the village while they said the 2nd appellant who was well known was one of the robbers and was not looked after. After all the 3rd accused did not say that PW1 had mentioned to him that he had identified the 2 nd appellant as one of the robbers. Failure to do that draws from this court an adverse inference against his (PW1) evidence. However, the 10 ........ ...,.. ............ :.,.- ,,.... ., :.. ; ~ ~-, _.,. ' . '_.-~ ~ ~/":'.:"·-"':. ~ evidence of PW1 should not have been given such much weight 0 since it was unsworn one and no reason was given to that move. Therefore, the prosecution did- not prove that the 2 nd appellant was identified at the scene to be one of the robbers. Hence Armed Robbery against him was not proved as required in law. Actually, PWl did not prove that there was any Armed Robbery against him on the material day. The 1st appellant was convicted with Armed Robbery on allegations that he was found in possession of stolen cattle and had in his possession forged document bearing other people's names in relation to the cattle's movement. The 1st appellant did not deny all these allegations where he said he bought the cattle from the then 3 rd accused and this explanation was supported by the 4 th appellant who said was there when the 3rd accused and PWl brought the cattle to the place they were loaded in the lorry. It is a considered view of this court that since the Armed Robbery was not proved in this respect, the 1st appellant's account that he bought the cattle from the third accused has raised a reasonable doubt in the prosecution case against him. The allegations that the 3 rd accused could not have sold the cattle since he had kept the same for a long time is not conclusive evidence that he could not have sold the cattle. The police charged him after the 1st appellant told them that he bought the 11 cattle from him. The trial court firmly held that had the 3 rd () accused sold the cattle he could not have followed-up the same soon after he had received information of theft. It is my opinion rd that the 3 accused could not have just relaxed after the sale transaction lest he could have been the first suspect. He took up the matter to justify the robbery allegations. The 1st appellant could not have mentioned the 3 rd accused whom he did not know before hadn't there been any transaction between them. As for the cattle movement permit which contained other person's home, the 1st appellant gave explanation that the name was of the third accused's uncle AHMAD HUSSEIN and was the one who found him the same. It was the duty of the police to trace this person taking into account that the 1st appellant had accounted to them how he came about the cattle. The 1st appellant was a stranger in London village hence could not be expected to get any cooperation from the people there especially since the deal had now became sour. Hence he could not have secured the attendance of the Village Executive Officer whom he said had given them permit. The police also should have secured the tax collector whom the 1st appellant said had collected revenue from him and more so since the 1st appellant is incarcerated and could not easily secure his presence taking into account he was a government employee. 12 .. Also, the trial court heavily relied to the 1st and 4 th appellants' Caution Statements which indicate that the cattle were stolen property. However, these statements were not good evidence since the same were admitted in court contrary to the _,, law. The two appellants objected these statements but the trial court went ahead and admitted them in evidence without making any inquiry about their admissibility. They are hereby expunged from the evidence (See a/so SELEMAN HASSANI VR, Criminal Appeal NO. 364 of 2008,Court of Appeal of Tanzania at Dodoma, (Unreported)) Therefore, the offence of Armed Robbery was not proved against the 1st appellant. And equally the offence of Forgery of Official Document had not been proved against the 1st appellant since it was no proved that he was the one who authored the said document. There ought to have been a proof from handwriting expert to show that the document was written by the first appellant in order for the charged offence to stand. Also, it was not enough for the prosecution to just say that the officer whose name appears in the document was long dead without proof of his death as the law requires i.e his death certificate should have been tendered in court. Further, since the 1st appellant said the document was given to him by a person under authority in the village which he was himself (1st appellant) a stranger, the prosecution ought to have found that officer for him to admit or deny the allegations. 13 Lastly, this court finds that the evidence tendered in court in relation to the stolen property i.e cattle did not prove the charge. . , ... ·. That is to say the evidence was at variance with the charge. It is in record that while the charge alleges that the stolen cattle belonged to EMANUEL ATHUMAN (PW2), the evidence on record shows that PW2 was just one of the cattle's owners. The cattle belonged also to one YOHANA ROLE, PW3 and also the then third accused. The law says that in the absence of an amendment of the charge the prosecution is bound by the particulars it sets out to prove (See UGANDA VS WARAGA [1964] E.A. 366). In this case at hand the prosecution did not prove the particulars of the charge and this was a fatal irregularity which vitiated the proceedings. Eventually, the court finds that the charge against all appellants was not proved beyond reasonable doubts and therefore their appeal is allowed, conviction quashed and sentence set aside. The appellants are to be released from custody unless their continued incarceration is i~e,~1~!.i?P to other lawful causes. Order accordingly. ---- ____ _ ' .- _____:, (M. A. . ARIKO) JUDGE 09/9/2011 14 I . . ~ .- ~ ~ ... ~-- - ., . _,:_::·-- 0 Court:- Right of Appeal fully explained. c'.~-11~-= (M. A. ~RIKO) JUDGE 09/9/2011 AT DODOMA. 09/9/2011 Appellant: All present. For Respondent: Mr. Wambali State Attorney. C/c: Ms. Komba. 15