20121015 TZHC Mbeya1

IN THE HIGH COURT OF TANZANIA AT MBEYA 11 DC. CRIMINAL APPEAL NO.18 OF 2011 (From Mbozi District Court Criminal Case No.104 of 2010) PAULO KAPUNGU................................APPELLANT VERSUS THE REPUBLIC .................................RESPONDENT JUDGMENT 09.10.2012 & 15.10.2012 CHOCHA, J. Paulo Kapungu who shall hereinafter be referred too as the appellant was charged at Mbozi District Court with two counts namely burglary c/s 294 (1) and stealing c/s 265 of the Penal Code. It was stated that on the 13" September 2010 at about 02:30 hours he broke the home of Abdul Salim and stole there from a Laptop computer, a pair of shoes and a Phillips iron flat, all worth Tshs 1,260,000/=. He was convicted and sentenced to five years in each offence. In addition, he was awarded a 10 strokes corporal punishment. There was no order for compensation. The appellant raised a seemingly three grounds memorandum of appeal. In substance however, they boil down to only two, namely, that the prosecution had not established the charges beyond reasonable a doubts, and secondly that not all witness who were listed subsequently featured as intended. During the hearing of the appeal the Respondent - Ms Mwakilasa - State Attorney, appealed this court to dismiss the appeal because she believed and accordingly submitted that the case had been established to the required standard during the trial. She submitted that the recovered stolen laptop was exhibited and the accused had not disputed its being exhibited. Besides, the learned State Attorney submitted that the appellant had admitted to have committed both offences vide his caution statement which was also exhibited. As regards the claim that not all anticipated witnesses featured, the State Attorney argued which I absolutely agree, that in law, no particular number of witnesses shall be required for the proof of any fact, which is why, under the Tanzania Evidence Act as amended by the Sexual Offences Special Provisions Act for example, only one witness is enough for the job. [See — S. 127 (7) of the Tanzania Evidence Act] To this end, the appellant's desire to have all listed witnesses called is an unhealthy ground of appeal. It is, like urged by the State Attorney, dismissed right away. In his rejoinder, the appellant submitted that there was no evidence to the effect that it was him who broke the house and secondly that he was not found with any stolen properties. Instead he contended that the properties were found at Michael Mwakalinga's barber shop. There is only one issue to address namely whether the appellant committed the offences he was charged with. 22 The appellant's querry that there was no direct eye witness' evidence to the commission of either offence, cannot be translated otherwise. The piece of evidence which may link the appellant with the commission obtains in the caution statement (EXH 1 32). The said statement was recorded on the 1 5th September 2010 two days after the alleged commission of the offence and only one day ahead of drawing of the charge sheet and submission of the appellant to court. The caution statement is unfortunately of no assistance to the prosecution considering the irregularities involved. In the first place the trial court did not conduct a trial within trial as it ought to have done. The exercise was important like it was insisted in MASANJA MAZAMBI V.R. (1991) TLR 200 that a trial within trial has to be conducted whenever an accused person objects to the tendering of any statement. The appellant had objected the production of the statement contending that it had not been freely obtained. This is what he told the trial court:- "I was forced to record the statement. I was being beaten by an iron rod. I was injured to the extent that I was taken to hospital. At the hospital I was admitted for one day, on 1410912010. I was discharged on 1510912010." Immediately after this submission the court made a ruling. It overruled him saying the statement was freely obtained. The court's ruling was virtually premature. The court had not afforded the prosecution an opportunity to reply to the claim raised by the appellant that he had been tortured ahead of his statement being recorded. Instead, the court 33 reconstituted itself as the defendant against the accused's complaint before it again resumed its umpiral role. Trial within trial entails a procedure of investigation with a view to ascertain the fact in issue raised. So, if somebody alleges that the statement was not freely obtained, he who contends that it was freely taken must explain why he says so. A trial within trial may last as long as the main trial depending on the complexity of the issue involved. Like I have said, for one, no trial within trial was conducted. The trial magistrate was unnecessarily in a hurry. Like the trial magistrate, the investigator was equally in an uncalled for hurry. If he had intended to rely on that statement he ought to work on the information provided therein exhaustively. Otherwise, there must be some explaination behind the omission of the seemingly vital information. The statement contains for example information implicating Michael to the effect that the commission of the offence was done by the accused and Michael and that even the properties were found at Michael's place. It does not appear clearly to what extent did the investigator work on this information. For those grounds, I find the caution statement was erroneously admitted. It is expunged from evidence. Like the appellant contends, in the absence of an eye witness to the commission of either offence, it was only the doctrine of recent possession which could work to define the offender. Understandally, non joinder of Michael as the co-accused cannot constitute defence for the appellant. What is important is, there should be a strong evidence in the first place linking him with the commission of the offence. 41 • -' The question why, where and how was the appellant arrested was not sufficiently clarified. According to the arresting officer (PW3) G 1617 PC Hassan; the arresting of a laptop owner was a result of Michael's assistance. Unfortunately Michael denied being the source of the recovery of the laptop. He admitted that a paper bag was found outside his place of work without him knowing its contents. Michael said the police came leading the appellant to his (Michael) place. They wanted to know if he (appellant) had left any luggage there. Michael replied. "I told them I did not know." Michael's answers /explaination was damaging to the prosecution's case such that the doctrine of recent possession could not work effectively against the appellant. For reasons above, conviction against the appellant cannot be blessed. It is quashed. Sentence imposed is set aside. An appeal is allowed. The trial court did not make any order on the recovered laptop (EXH P1). Since its ownership was not contested, it is directed that the same should be handed back to PW1 Abdul Salim Bwana. Otherwise the appellant is to be released unless otherwise lawfully confined. Ordered accordingly. N.P.Z. Ci ocKa Judge 15/10/2012 5 f ) Date: 15.10.2012 Coram: N.P.Z. Chocha, J Appellant: Present Republic: Mr. Namkambe - State Attorney. L/Ass: Anna Mpessa Gaudensia Order: - Judgment delivered. - Right of Appeal Explained. N.P.Z. Chocha Judge 15/10/2012 51