20120423 TZHC Dodoma 1

.. IN. THE HIGH CURT OF TANZANIA ,· AT DODOMA (~PPELLATE.JURISDICTION) (DC) CRIMINAL APPEAL NO. 109 OF 2011 : (Original Criminal Case No. 103 of 2010 of the District Court of Mpwapwa District at Mp.wapwa) BABUYE MGANGA ................................. APPELLANT VERSUS THE REPUBLIC ...................................... RESPONDENT JUDGMENT '\ 16/4/2012 & 23/4/2012 . • i KWARIKO, J: The appellant was arraigned before the District Court of Mpwapwa with the charge of Cattle Theft contrary to section 268 of the Penal Code Cap. 16 Revised Edition 2002. It was alleged by the prosecution that the appellant had on the 29 th day of October, 2009 at 8.00 hours at Singonali village within Mpwapwa District in Dodoma Region stolen one cow valued at Tshs. 300,000/= the property of one DAIMON S/O CHOGWE. The appellant had denied the charge hence his trial. 1 , The evidence in support of tHe charge as rec~ived during the trial can be summarized · as hereunder: . In the· morning of 28/10/2009 PW3 DAIMON S/0 CHOGWE who was herdsman of the cattle belonging to KEDMOND S/0 CHOGWE, PWl found a cowshed broken and cattle stolen. Footsteps were found at the scene and upon follow-up the same led to the appellant's home and other footsteps led to Mtera area and that is where ·he decided to follow. On the way· he met one MANENd S/0 RAMADHANI, PW3 who said had earlier in the morning met the appellant "" . and another driving a cow towards Mtera area. PW2 was very familiar to the appellant. 'Upon investigation it was d_iscovered that one JOHN MTAUGA who was known a livestock dealer might have. bought the alleged stolen cow. They approached him and he said that he had really bought·•,-a-;~~ow'-'lrom one SHEHE MASMOT and the,,:app,ellant who had escaped. SHE~E was arrested and sent t<J Court. An Ox coloured black and white was tendered and admitted in court as exhibit Pl. •• However, on 19/7/2010 PWl lost another batch of cows and thus traced the appellant where he was found and arrested in Iring a. In his defence the appellant raised a defence of alibi in that he left to Iring a on 5/7/2009 where he secured an employment. That, when he returned home to see his parents on 15/7/2010 he was arrested on account of his brother's cattle theft allegations. That, when he left to Iringa he had left his brother at home and when he returned he was not there. He said that he 2 i . had quarrels with RAYMOND GHOGWE~who was his l)ncle~s friend. Thus, he was implicated with these ajlegations .as a revenge. In · its judgment the trial court was satisfied that the appellant was satisfactorily identified especially by PW2 as the thief _since he had met him drivir:1g the alleged stolen cow. That, the said cow was found in the home of one JOHN MTAUGA hence proved that the ap-pellant had sold it to him. The appeilant's defence of alibi was rejected since he did not comply with the . provision of section 194 ( 4) and (5) of the Criminal Prr;;cedure Act, Cap. 20 Revised I Edition 2002 as he did not give notice, of this ·defence before the prosecution closed its case. Thus, the appellant was found guilty, : convicted and sentenced .to five (5) years imprisonment. On_ being dissatisfied -with· ·conviction .._and s~nterice, the appellant filed this appeal where he raised about five grounds of appeal. However, the appellant's main complaint in this appeal is that the trial court erred in law and in fact to ground conviction against him on insufficient prosecution evidence. When the appeal was called for he_aring the appellant adopted his grounds of appeal with nothing else to add. He prayed his appeal to be allowed. On the other hand the respondent/Republic was represented by Ms. Magoma learned State Attorney who argued the appeal qn. that behalf. Ms. Magoma did not support the trial Court's conviction and sentence against the appellant. She gave her reasons for the same which will be referred in due course. 3 On its part this court· has gone through _the original proceedings, grounds of appeal and the submission by . the learn:ed State Attorney and it is positive that the prosecution side did- not ·discharge its duty to prove ·this· case beyond reasonable doubt. The following are re.as~ns for the court's contention. Firstly, the identity of the appellant as the one who was, seen by_ PW2 driving the alleged stolen cattle was not proved. This is so -because if PW2 had informed the complainant that he had ""' . ' seen the appell~nt and another with a cattle which marched the description of th:e stolen one, and that the appellant w·cJs well known to PW2 and PW3, why. wasn't he traced that very day to his home? No answer was fronted to this germane question. PW2 said he knew the appellant's home. No evidence was led to show -that the appellant was traced and not found at his home. Instead the appellant was ·said to have been arrested almost a year later in Iringa. Also, it 1 was not known what was the fate of the alleged . appellant's a.ccomplice one St-tEHE MASMOT. PWl said this one was sent to Primary Court but no any proceedings were tendered in court to prove that the same related to the present case and -how the appellant was linked in that case. That is where the trial court ought to have exercised its discretion to accord weight to the appellant's alibi though he did not comply with the law (Section 194 (6) of the Criminal Procedure Act (Supra)). This is so because what is important in a defence of. alibi is the same to raise a reasonable doubt on the prosecution ·..case (Also see, MWITA S/0 MHERE AND IBRAHIM MHERE VR [2005] T.L.R 107). 4 I Further, the prosecution's omission to parade in court one JOHN S/0 MTAUGA where the alleged · stolen cow was found adversely impacted on the prosecution case. Since the said JOHN could have explained how -the alleged cow foun_d its way to his home and he could have testified whether the· appellant sold it to him. Actually, he could as well been the first suspect on the cattle theft since he was_ t~e, one_ where the alleged stolen cow was found. How was -the sai-d JOHN exonerated from the blame was not explained. t1 Further, although . the trial court decided to trash the ~ evidence by PW3 when he said that he found footsteps from the cowshed leading up to the appellants home but this evidence has a fatal_ be=aring on the prosecution case. Tt,e same should have been considere_d along with the rest of- the prosecution evidence. Thus, considering PW3's evidence, this court finds that it brings doubt to the whole case as .far as the app~llant7s identity is concerned. Hence,· if the footsteps from the scene le~ to the appellant's home, then, why wasn't he followed immediately? Or why didn't PW3 report the findings to any local area leader for a proper folloyv-up?. And why the follow-up of footprints if the identity of the culprit was known?. These questions were not answered d~ring the trial and the court did not address the same . • Had the trial court addressed its mind on thi~ evidence it must have found that -the same completely spoiled the prosecution case. Also, when PW1's evidence is considered it shows that the appellant was traced after a second cattle theft on 19/7/2010 from PWl. No evidence was led on how the second theft from PW1 was linked to the appellant or with the first theft which is 5 under consjderation. Actually, the whole prosecution case against the appellant is very confusing and difficult to. comprehend as each witness testified on his own account. of events not linked to one another. Secondly, the identity of the all~g_ed stolen cow was not proved. This is so because while PW1 said the stolen cow. which was actually tendered in court as exhibit Pl had black and white colour, PW2 said he had seen the appellant driving a white in colo..ur. cow on 29/10/2009. And the court noted that the cow (exhibit Pl) had cut mark on the middle and lower pa~ of the ear. Thus, this court agrees with Ms. Magoma learned State Attorney that the alleged stolen cattle was not sufficiently fiy :r identffte·d· the complainant (see also GEORGE MINGWE _VR [1989] T.L.R ·10). The complainant ·ought to have sufficiently · described the special marks of the stolen cow before the same ... ...,~.,·-- wa's'"received.crfl'evidence. This was not done and hence· exhibit Pl was not proved to be the complainant's property. Lastly, ~the prosecution's evidence did not:- prove the charge laid against~ the appellant. This is so because ~hile the charge 1 - stated that the stolen cow was the proP.erty of one DAIMON S/0 CHOGWE the evidence on record shows that DAIMON CHOGWE, PW3 was just a herdman· of the stolen cow and the proprietor was KEDMOND S/0 CHOGWE, PWl. 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 V WARAGA [1964] E.A 366). Therefore, not only that the prosecution did not prove the particulars of the charge, but alsoJt did not prove beyond reasonable doubt the appellant's guilty. 6 Consequently, this appe_al i_s. allowed, conviction quashed and sentence against the appellant is· set aside. The appellant ~ . should therefore be released from prison unless he is held there for other lawful causes. Order accordingly. (M.A.·. JUDGE- 23/4/2012 DELIVERED AT DODOMA. 23/4/2012. Appellant: Present. For Respondent: Ms. Nsana, State Attorney. C/c: Ms Komba. 7