hosea petro chindie vs republic 2012 tzhc 176 24 september 2012

IN THE HIGH COURT OF TANZANIA AT DODOMA DC. CRIMINAL APPEAL NO. 90/2011 (Originating from the District Court of Manyoni District at Manyoni, Criminal C ase No. 137/2010) HOSEA PETRO CHINDIE .............................. APPELLANT VERSUS THE REPUBLIC............................................. RESPONDENT JUDGMENT 19/9/2012 & 24/9/2012 KWARIKO. J. The appellant Hosea c/s Petro Chindie and one Stanley s/o Mdula who was the 2nd accu sed at the trial jointly and together stood charged with the offence of Stealing by Agent c/s 273 (b) of The Penal Code C a p . 16 Vol. 1 R.E. 2002. It was alleged by the prosecution that the two jointly and together had on the 7th d ay of June, 2010 at about lO.OOhours at Sasilo Village within Manyoni District in Singida Region stolen one Tricycle Reg. No. T154 BAA made BAJA0I valued at Tshs. 2,000,000/= the property of one Laurent s/o Ram adhan which had been entrusted to them by the said Ram adhan to use for one hour only instead they left to Kintanula village to sell it. The two denied the ch arge where the prosecution brought a total of five witnesses to prove the same. Apparently, at the middle of the trial the second accused jumped bail hence the case against him was heard in his absence, though no order had been m ade by the trial court to that effect. l Thus,, the prosecution case reveal that on 7/6/2010 the appellant herein borrowed a tricycle, BAJAJI from Laurent Ramadhan, PW1 to go to see his cattle at M pandepande area and the duration of the borrowing was only one hour from 10.00am. However, at the end of the borrowing period PW1 did not see the appellant or the BAJAJI. He started to trace the appellant where he met one Thomas Singo, PW2 who told, him that the- appellant had also disappeared with his money he promised to bring him cattle in return. Thus, PW1 b ecom e anxious and the two went on to look for the appellant. At Mitundu area they met one Bernard Stephen, pW4\vho revealed that the appellant and the 2nd accu sed had taken the BAJAJI to his workshop for repair and offered it to him for sale but they could not reach a consensus as far as the price was concerned hence they left. PW1 then reported the matter to police and the appellant and his colleague, 2nd accu se d were arrested with the BAJAJI at Kiwele area. They w ere thus accordingly charged. During the trial the said BAJAJI was admitted in court as exhibt PI while the 2nd a c c u se d ’s caution statement was admitted and marked exhibit P2. « In his defence the appellant did not dispute the fact that he had borrowed the BAJAJI from PW1 for his own business. However, stated that the BAJAJI had sustained m echanical defects and took it to a m echanic and before he' accom plished his mission he was arrested along with his passenger the following day. He said he had borrowed the BAJAJI on 8/6/2010. After arrest PW1 dem and ed to be paid shs. 3,000,000/= as costs of the borrowing but he had none and even when he reduced the same to 2,000,000/= he could not pay the same hence he was accordingly charged. At the end of the trial the court found that the appellant and another really were guilty of the offence charged since the appellant had disappeared with the BAJAJI contrary to the borrowing agreem ent of using it for one hour only, Insiead, the appellant kept the BAJAJI form 7/6/20]0 to 13/6/2010 and that PW3, PW4 and PW5 proved that the appellant and another had offered to sell the sam e. They were convicted and sentenced to seven (7) years imprisonment e a ch . The appellant has thus brought this ap p eal against conviction and sentence where he raised about five grounds of ap p eal. The appellant’s grounds of appeal boil to one major complaint that the prosecution case did not prove the offence charged . When this appeal was called for hearing the appellant did not have anything to say or clarify as he told the court that he could respond after he heard the submission from the State Attorney in respect of his grounds of-ap peal. Thus, Ms. Shio, learned Senior State Attorney made the appellant’s life easier when she supported his appeal. She gave reasons for his stance and I will refer to them shortly. This court has gone through the irial court’s record, the evidence fiprn both sides, the decision thereon, the grounds of appeal and the submission m ade by Ms. Shio learned Senior State Attorney and it is of the opinion that this ap p eal has merits. The following are the reasons for my stance: Firstly, as com plained by the appellant and submitted by Ms. Shio learned Senior State Attorney, the prosecution evidence did not prove the offence of stealing. That, a fraudulent intention which is necessary com ponent to prove stealing had not been proved in this case as defined under section 258(1) of the Penal Code Cap. 16 RE. 2002, it says; “A person who fraudulently and without claim of right takes anything ca p a b le of being stolen, or fraudulently converts to the use of any person other than the general or special owner thereof anything ca p a b le of being stolen , steals that thing ”. As rightly submitted by Ms. Shio, the ap p ellant’s a c t of wondering with the PW1 's tricycle in the villages did not amount to stealing it. And also that a c t did not amount to permanently depriving the com plainant of his BAJAJI. At most the appellant may have caused anxiety to PW1. The foregoing is cem ented by the fact that PW1 did not prove that he had lent the BAJAJI to the appellant for one hour only. No any evid ence was brought to support PW1 ’s evid ence to that effect. The evidence which says that the appellant had intended to sell the BAJAJI has not been sufficiently proved. The sam e ought to have been supported by another evid ence to that effect. Thus, PW4’s assertion that the appellant had offered to sell the BAJAJI to him is not enough in the ab sence of any supporting evidence. Secondly, the court finds as submitted by both parties that the trial court erred in law when he used the 2nd a c c u s e d ’s caution statement as one of the evidence to convict the appellant. Firstly, that statement did not belong to the appellant and it was not proved against him. The appellant denied that statement and it was legally wrong to tender and admit it in the ab sen ce of the maker and against a person who did not make it. The appellant’s objection did not even need any inquiry to ascertain the admissibility of the caution statement since the same related to another person. An inquiry could have involved two opposing sides and there was only one side, the prosecution. The maker of the statement was not in court to contest or admit the same. Thus, the statement, exhibit P2 was not good evidence and the sam e is hereby expunged from the record. ^Also, while the appellant was jointly charged with the 2nd accused but no proof of their common intention had been tendered. Lastly, though the appellant did not raise in his petition of appeal, but this court agrees with Ms. Shio learned Senior State Attorney that the trial court erred in law when it failed to consider the appellant’s d efen ce before a final decision was reach ed . The trial magistrate after he had summarised evidence from both sides, he considered and analysed the prosecution evidence only., before a decision was reached . This amounted to violation of a principle of law of fair hearing which is one of a person’s basic rights. This right is also enshrined in our Constitution. Article 13 (6) (a) of the United Republic of Tanzania Constitution says; “When the rights and duties of any person are being determined b y the court or any other a g e n c y , that person shall b e entitled to a fair hearing and to the right of appeal or other legal rem edy against the decision of the court or of th'e other a g e n c y co n ce rn e d t * i In the case at hand the appellant was not acco rd e d a fair hearing since his d efen ce had not been considered in line with the prosecution case. This was fatal error and it vitiated the judgment. Be it as it may, the prosecution case was not proved to the standard required in law. This appeal is thus allowed, conviction against the appellant is quashed and the sentence is set aside. Consequently, the appellant is ordered to be released from custody unless his continued incarceration is related to other lawful cause. It is ordered accordingly. (M. A. illA R IK O ) JUDGE 24/9/2012 AT DODOMA 24/9/2012 Appellant: Present For Respondent: Ms. M agesa State Attorney. C/C: Ms. Komba. ! A > ARIKO) MM i * $; I / -f ’ " > JUDGE 2i /9/2012 24 /