20120529 TZHC Mbeya1

IN THE HIGH COURT OF TANZANIA ATMBEYA DC CRIMINAL APPEAL NUMBER 29 OF 2011 (Originating from Criminal Case Number 78 of 2009 of Mbeya District Court at Mbeya.) SADICK JOHN MWAFYELA ------------------------------------ jst APPELLANT BONIFACE TIMOTH KAMETA------------------------------- - 2nd APPELLANT SADICK DANIEL RAMADHANI ------------------------------- 3rd APPELLANT VERSUS THE REPUBLIC --------- RESPONDENT JUDGMENT 16/04 & 28/05/20 2 S. S. MWANGESI J The three appellants herein and five others were jointly and severily charged in the District Court of Mbeya with four counts. In the first count, all the accused were charged with the offence of conspiracy to commit an offence contrary to section 384 of the Penal Code Cap 16 Volume 1 of the Laws Revised. It was the case for the prosecution that, on or about the C4th day of March 2009, within the Rural District and Region of Mbeya, Minto Ntulo@ 1 / 4 ) Mwamkinga, Samwel Amunike @ Mwakilembe, Betwel Katobike Bisege @ Bisege, Sadick Daniel Ramadhani @ Sadi, Boniface Timoth Kameta, Gibson Kisanga, Flora Idimeni Sayota and Sadick John Mwafyela, did jointly and together conspire to commit an offence of armed robbery at Mbeya Textile Mill Limited within the Rural District of Mbeya. In the second count, all the accused named in the first count above, stood charged with the offence of armed robbery contrary to section 287A of the Penal Code Cap 16 Volume 1 of the Laws Revised. The particular of the offence were to the effect that, on or about the 04th day of March 2009 at Mbeya Textile Mill Limited within the Rural District and Region of Mbeya, all the accused did jointly ID and together steal cash TZs. 3,700,000/, US$ 350, 3 CDs, one shotgun bearing serial numbers C 26363 and two rifles bearing serial numbers G 930508 and GFN 71/33434, 33 rounds of ammunition and 4 shotgun bullets, the property of Mbeya Textile Mill Limited, and immediately before such stealing, assaulted one Angelina John Mtunga with an iron rod while duly armed with shotguns before and during such acts in order to steal and retain such properties and did fire one bullet in the air. The third count was for the fifth accused alone, that is unlawful possession of firearm contrary to section 4 (1) (a) and 34 of the Arms and Ammunition Act 1991, Cap 223 of the Laws Revised Edition of 2002. It was ao alleged by the prosecution that, on or about the 09th day of March 2009, at Airport area within the District and City of Mbeya, the accused that is, Boniface Timoth Kameta, was found in possession of one shotgun with serial number GFN 7 1/33434 without a permit or license And in the fourth count which was for the seventh accused alone, the same was being charged with the offence of unlawful possession of firearm contrary to section 4 (1) (a) and 34 of the Arms and Ammunition Act Cap 223 of the Laws Revised. The particulars of the offence were that, on the Q9th day of March 2009 at Uyole- Itezi area within the District City and Region of Mbeya, the I I accused was found in possession of one shotgun with serial numbers C 26363 without a permit or license. As all charges were denied by the respective accused persons, the matter did go for full trial wherein fourteen (14) witnesses were summoned by the prosecution to establish the case against all accused. At the closure of the prosecution case, the learned trial Resident Magistrate did rule out that, the evidence adduced in Court by all those prosecution witnesses, had failed to establish a prima facie case against the sixth accused that is Gibson Kisanga. The same was therefore discharged and set free. And as regards all the other remaining accused persons, they were all found to have a case to answer and 1 0 therefore, they were all called upon to enter their defenses an obligation which they did perform. At the end of the day, it was the fourth accused Sadick Daniel Ramadhani Sadi, the fifth accused Boniface Timoth Kameta and the eighth accused Sadick John Mwafyela, who got convicted of the second count of armed robbery upon which they were sentenced each to serve a life imprisonment. At the same time, the fifth accused Boniface Timoth Kameta and the seventh accused Flora Idimeni Sayota got convicted of the third and fourth counts respectively of being in unlawful possession of firearms, and each was sentenced to pay a fine of TZs. One million (1,000,000I or serving a sentence of five (5) years 9 0 imprisonment in default. The other accused persons were acquitted and set free. The decision of the trial Court and the sentences awarded, did aggrieve the fourth, fifth and eighth accused who have decided to prefer their appeals to this Court. In their separate memoranda of appeal to a greater extent the grounds raised are similar save few. The common grounds raised are, first that all of them were convicted without there being sufficient evidence to establish their guilt beyond reasonable doubts. Secondly that, their defense evidence, was never considered by the trial Court. And lastly, all the appellants have casted the learned trial Resident Magistrate for awarding them an illegal 3 _.sentence of life imprisonment which they contend was too excessive. The second appellant has further complained that, the trial Court did err to convict him relying on the evidence of the caution statements that were illegally recorded by the prosecution witnesses. During the hearing of the appeal, there was some amplification made by the appellants to their grounds of appeal which in any case, were directed to the very way under which they had been structured. On the other hand, the response by the respondent- Republic who was represented by Mr. Namkambe learned State Attorney, has been to the effect that the trial Court was justified to hold that all appellants were guilty to the respective charged offences because to the evidence tendered against them was watertight. As regards the sentences that were imposed to the appellants in the respective counts, it has been the opinion of the learned State Attorney that, the trial learned Resident Magistrate did rightly exercise his discretion as conferred on him by the provision of section 287A of the Penal Code Cap 16 of the Laws Revised, which puts the minimum sentence for the second count of the offence under which the appellants stood charged with, to imprisonment for a term of thirty (30) years. And that, the nature of the offence at hand, did move the learned trial Resident Magistrate to impose the sentences which he odered the appellants to serve. With regard to the defense evidences which has been complained of by the appellants that were never considered, the position of Mr. Namkambe learned Counsel has been that, the same was considered only to be found by the learned trial Resident Magistrate that, were of no any effect to the cogent evidence tendered by the prosecution witnesses. The learned State Attorney has as well discarded the grounds raised by the appellants to the effect that, they were not identified at the scene of the incident, and further that the recording of the caution statements that were tendered as exhibits did not comply with the legal requirements. It has been the view of the learned State 4 Attorney that, those grounds ought not to have been included in the appeal because they were expunged from the proceedings by the learned tri& Resident Magistrate. In totality of the foregoing therefore, the Court has been asked to find that the appeals by all appellants are without any founded grounds and that, they be dismissed in their entirety with the contempt they deserve. Before I proceed to consider the evidence that was tendered from both sides and the merits and demerits of the grounds of appeal that have been raised, there was an omission that got occasioned during the trial which I deem Worth pointing out. There was one witness by the name of Sostenes who was said to have passed away before he got the chance of giving his evidence po before the Court. His statement was tendered by Detective Corporal Simon under the provision of section 34 B of the Law of Evidence Act Cap 6. However, such statement was never tendered in Court as exhibit as prayed although the witness who was to tender it, was permitted to read it before the Court. The Court was duty bound to ensure that it got tendered and formed part of the Court records so that it could be used where necessary. Going back to the issue of the appeal itself, the question that lies before this Court for determination is as to whether the appeals by all appellants are tenable. In resolving this issue, each of the appellant will be considered independently in relation to the evidence that was tendered to implicate him to .0 the charged offence. I will thus start with the first appellant who during the trial of the case at the trial Court appeared as the eighth accused person. Upon going through the evidence tendered during the trial of the case and the judgment of the learned trial Magistrate, his conviction did base on the testimony of DW10 one Christopher Dickson Mwafyela. This witness (DW 10) did tell the Court that, the appellant who was said to be his father, was the one who left him at the home of the seventh accused where a gun alleged to have been robbed from the scene of the incident was recovered. J In his judgment, the learned trial Magistrate did hold that, since the appellant together with the fourth accused who happens to be the second appellant, were the ones who left DW 10 together with the gun at the home of the seventh accused, and the fact that such gun was identified to be among the robbed items at the scene of the incident, then he should have been at the scene of the incident on the fateful night and committed the offence of armed robbery which he stood charged with. The question which this Court had to ask itself, is as to whether it was justifiable for the learned trial Resident Magistrate to solely base on the testimony of DW 10 in holding that, the first appellant was indeed at the home of the seventh accused with the second appellant a day 10 before the recovery of the gun at the same, which was later identified to be among the items robbed from the scene of the incident. DW 10 who according to the records in the case file was aged about eight (8) years of age, was a child of tender age in terms of the provision of section 127 (5) of the Law of Evidence Act Cap 6 of the Laws Revised Edition of 2002. As a matter of prudence, the evidence of a child of tender years requires corroboration before it can be acted upon as per the holding of the Court of Appeal in the case of Said Hemed Versus Republc [1987 TLR 117. In the matter at hand therefore, the evidence of DW 10 ought to have been corroborated by other independent evidence. And the evidence that ought to o have corroborated the evidence of DW 10 before it could be acted upon by the Court was that of DW 9 one Edna Francis Mbilinyi who was said to have been with DWIO on the material date. However, in her testimony this witness told the Court that on the date when the second appellant (fourth accused) arrived at her home he was in the company of a person whom she could not identify. Apart from the evidenced of the child (DW 10) being not corroborated by any other independent evidence, the procedure that was adopted in taking the evidence of the said witness was not complied with. That is, being a child of tender age, the learned trial Resident Magistrate was duty bound to conduct a N . voire dire examination before receiving his evidence. Unfortunately as the proceedings in the case file can reveal, such a thing was never done. The said omission was fatal and rendered the evidence of this witness of little evidential value And once the evidence of DW 10 is disregarded, literally there remains no evidence at all to implicate the first appellant to the offence of armed robbery which he stood charged with. As such, it is the finding of this Court that, there was no justification for the trial Court to found conviction to the first appellant. On the part of the second appellant who during the trial of his case at the trial Court appeared as the fourth accused, he was implicated to the charged offence of armed robbery by the evidence of PW 5, Superintendent of Police I o Sylvester Ibrahim and PW6 Assistant Superintendent of Police Nassoro. Both the two witnesses did tell the Court that, the appellant was named by the fifth accused who happens to be the third appellant, as the one who had taken to him the gun that was recovered at his premises when searched by Police Officers, which was later identified to be among the items that got robbed at the scene of the incident. And when a search was mounted in the room of the second appellant, three (3) CDs alleged to belong to Mbeya textile Mill Limited, were recovered. The testimonies of these two witnesses, was nevertheless strenuously disputed by the appellant as being mere fabrication. It is further on record that, on the morning of the 09th March 2009 the second appellant did lead the two Police Officers to Uyole area at the house of the seventh accused one Flora ldimeni Sayota. This fact was not disputed by the appellant. At the same, a search was mounted and within the compound of the said house, a gun was recovered which was identified to be among the items that got robbed from the scene of the incident. The recovery of the said gun was witnessed by Julius Kalomo a civilian, who was summoned by the Police Officers to witness the search that got conducted at the house of the seventh accused. This was from the fact that he was a neighbor. - In her testimony, the seventh accused who happened to be the proprietor of the house from where a gun was recovered, did tell the Court that she did know nothing concerning the recovered gun. An explanation regarding the said gun was however given by DW 9 (Edna Francis Mbilinyi), who had been among the members of the family of the seventh accused. Her explanation was that, the box in which the gun that got recovered had been kept, was brought there by the second appellant who had been in the company of another person whom she could not identify. It was further stated by this witness that, such a thing was done in the absence of the seventh accused who at the material time, had been at a funeral services. Such testimony to some extent did show some light as to jo why the eventh accused claimed to be unaware of such recovered gun. In the light of the above scenario therefore, there was no dispute to the fact that, a gun got recovered at the house of the seventh accused. The records further reveal that, there was as well no dispute to the fact that the said recovered gun, was among the items that got robbed from Mbeya Textile Mill Limited, that is, make rifle with serial Number C 26363. The remaining question that needed to be tackled thereafter was as to whether there was ample evidence to associate the second appellant to the said recovered gun. The testimony given by DW 9 Edna Francis Mbilinyi to me did sound very appealing. The said witness did tell the Court that, she did know the second appellant well because he had been a regular visitor at their premises at Uyole where she had been keeping with the seventh accused. And that the previous day before the date when he did arrive at their home accompanied by Policemen, he had gone there in the company of another person whom she could not identify, while having abox which they did leave there. Such version by this witness was never controverted by the second appellant. And the box left by the second appellant at the home of the seventh accused, was the one found to be containing a gun in it as witnessed by PW 13 Julius Kalomo, a gun which was identified to be among the robbed items from Mbeya Textile Mill Limited. The act of the second appellant to lead the Police Officers to Uyole area where a gun connected with the robbery that took place at Mbeya Textile Mill Limited got recovered, has strongly convinced me to believe that, the appellant concerned with the said gun as correctly put by DW 10 Edna Francis Mbilinyi. The subsequent question thereafter, is as to where did the second appellant obtain the said gun? The robbery at Mbeya Textile Mill Limited occurred on the night of The 04th March 2009, and the recovery of the gun at the house of the seventh accused at Uyole was made on the 09th March 2009, that is after the elapse of about five (5) days or so. At this juncture, the holding of the Court of Appeal in the case of Athumani @ Mpuncuti and Three Others Versus The 10 Republic Criminal Appeal Number 29 of 2005, wherein the holding of an English case of R Versus Luglin 35 Criminal Appeal R. 69 was cited, was properly invoked by the learned trial Magistrate where the Court did hold inter alia thus: "If it is proved that premises have been broken into and certain property has been stolen from the premises and that shortly afterwards, a man is found in possession of that property, that is certainly evidence from which the jury can infer that he is the house breaker or shop breaker and, it is inconsistent to find him guilty of receiving because a man cannot s.eal from himself..." The fact that the second appellant did fail to explain as to how he came by the gun which he did take to the house of the seventh accused where it got recovered by the Police Officers, the learned trial Resident Magistrate did properly infer to him as among those who robbed at the scene of the incident. Such fact was not in any way disturbed by the defense evidence that got given by the second appellant which to a greater extent was just evasive to 'what had been leveled against him. With regard to the third appellant who during the trial of the case at the trial Court was being referred to as the fifth accused, his conviction by the trial VJ Court did mainly base on exhibit P 4 which was the gun that was said to have been recovered in his room following the search that was mounted by the Police Officers. The recovery of the said gun was witnessed by PW 6 a Police Officer, while the search was conducted by PW 5 who was also, a Police Officer. The recovery of the said exhibit has been challenged by the third appellant who has contended that, the alleged gun was not recovered at his premises and it had just been planted in his room by the Police Officers. In his judgment, the learned trial Magistrate did hold that, his caution statement, that is exhibit P 14 though retracted, it had been corroborated by the testimony of PW 14 Stephen Richard who claimed to have eye-witnessed the recovery of the gun from the room of the i o third appellant. I have had ample time of going through the testimony of PW 14 Stephen Richard as well as the answers which he gave while being cross-examined by the third appellant. This witness who had been a co-tenant of the third appellant at the material time, did tell the Court that on the fateful night, they were visited by Police Officers. After having knocked to their respective doors, he did open his door and so were the doors of the other tenants except that of the third appellant which was never opened until when the Police Officers broke it by force. He did testify further to the effect that, after having managed to break into the room of the third appellant, the Police Officers required he the witness and 11,0 the other tenants who had been there to get inside the room of the third appellant. While inside the sitting room of the third appellant, Stephen Richard (PW 14) did continue to tell the Court, the Police Officers did show them some bullets that were found in the bed of the third appellant. And that thereafter, a gun was brought from inside the room of the third appellant. When cross-examined by the third appellant if while entering inside his room the Police Officer was not in possession of the said gun, the response from Stephen Richard was in the negative that he was not in possession of any gun. 10 After due deliberation of the testimony of (PW 14) Stephen Richard, I am convinced as was the case for the learned trial Magistrate that, what he did tell the Court was nothing but truth that the gun at issue got recovered from the room of the third appellant and not as averred by the appellant that it had just been planted into the same by the Police Officers who conducted the search. And with regard to the contention of the prosecution that the said gun was among the items that got robbed from Mbeya Textile Mill Limited, I am as well convinced as was the case for the trial Court that, the same got properly identified as belonging to the same. And once it is held that the gun recovered from the room of the third 10 appellant was among the items robbed from Mbeya Textile Mill Limited, the remaining subsequent question is as to where did the third appeVant obtain the said gun? As it has been held for the second appellant above, the answer to such question is obtainable from the decision of the case of Athumani Mpunguti (supra) hich pins the third appellant to the commission of the offence of armed robbery which he stood arraigned with. The other thing which got raised in the memoranda of appeal by both appellants did concern the sentences that were imposed to them after they had been held to have committed the charged offence. Both appellints have complained that the sentences imposed to them were too excessive. This Court 0 has sensed some logic in the complaint by the appellants. The minimum sentence for the offence of armed robbery under which the appellants stood charge with, is a term imprisonment of thirty (30) years. Under the circumstances, the learned trial Resident Magistrate was justified to impose the life imprisonment sentence which he did order to the appellants. However, there ought to have been advanced some reasons as to why a sentence beyond the minimum one was being imposed to the appellants at hand. The absence of such reasons by necessary implication means that there were none and entitles this Court to alter them. ii Ultimately therefore, the appeal by the first appellant is found to be meritorious and it succeeds. It is hereby ordered that he 'be set' at liberty forthwith unless lawfully held for any other justifiable cause. On their part, the second and third appellants, their appeals are found to lack the requisite grounds and have to fail. The decision of the trial Court to the effect that they were guilty to the charged offence of armed robbery is upheld by this Court. However, the sentence of imprisonment for the whole terms of their lives is reversed, in lieu thereof it is ordered that each of them will serve the mandatory sentence of thirty (30) years imprisonment. Order accordingly. U, Wt~N~ ~ G ES I JUDGE 29-05-2012 12 IN THE HIGH COURT OF TANZANIA AT MRFVA DC CRIMINAL APPEAL NUMBER 28 OF 2011 (Originating from Criminal Case Number 03 of 2009 of the District Court of Mbarali at Rujewa) MICHAEL MTULI ----------------------------------APPELLANT VERSUS T H E RE P U B I.. IC .................................. RE S P0 NI DElI 1 JUDGEMNT 16/04 & 2/05/2012 S. S. MWANGESI J.: The appellant Michael Mtuli was charged at the District Court of Mbarali with two counts that is, the offence of malicious damage of TAZARA Railway contrary to section 57 (1) of the Economic and organized Crimes Contl Act No. 13 of 1984 as read together with paragraph 20 (f) of the First Schedule to the Act. It was the case for the prosecution that on the 25th day of September 2008 at about 0400 hours at Lugelele village within the District of Mbarali in the Region of Mbeya, the accused did maliciously damage TAZARA Railway by cuffing eleven (11) pieces of ion bars from it valued at TZs. 2,000,000/ the ( property of TAZARA. In the second count, the accused stood charged with the offence cf unlawful possession of goods contrary to paragraph 7 (a) and (b) and section 57 (1) of the Economic and Organized Control Act No. 13 of 1984. The particulars of the offence were to the effect that on the same date, time and place, the accused was found in unlawful possession of eleven (11) iron bars valued at TZs, 2,000,000/=the property of TAZARA. As both charges got denied by the appellant, the prosecution did summon three witnesses to establish the guilt against the appellant. Upon conviction to the first count, he was sentenced to go to jail for a period of fifteen (15) years. The appellant felt aggrieved by the decision and the sentence of the trial Court. He has thus lodged this appeal to challenge such findings of the trial Court. The memorandum of appeal by the appellant contains about six grounds. In the first ground the appellant has argued that, he denied to have committed the offence at issue. Secondly, the appellant has submitted that, the trial Magistrate grossly erred in points of law and in fact to chain the appellant by convictinq him basing on the evidence of FW2 Stambuli Rashid and PW3 ARON Msao who had a great chance of planting the case against him. In the third ground, the appellant has castigated the trial Magistrate for admitting and acting on the evidence of PW1 an employee of TAZARA, while the same was just called and told about the issue by FW2 and PW3. The trial Court has further been faulted in the fourth ground of appeal for accepting and convicting the appellant as the one who was responsible for damaginq the TAZARA Railway bridge while there was no evidence to show that there was any person who see him committing he offence. In the fifth count, the trial Magistrate has also been faulted for convicting the appellant to the first count while the circumstances in the first count were the same with those in the second count. Lastly, it has been the view of the appellant that, the evidence 2 3 c tendered by the prosecution witnesses in this case, did fail to establish the offence against the appellant and therefore, he was wrongly convicted. During the hearing of the appeal, the appellant did maintain his grounds of appeal without elaborating them. On the other hand, the respondent was represen.ted by Mr. Stambuli Learned State Attorney who did support the conviction entered to the appellant by the trial Court. With regard to the first ground of appeal, it has been the argument of the learned State Attorney that, the same is indisputable an answer which is seconded by this Court that there was no dispute to that. As such, the first ground of appeal is baseless. The second, third, fourth and sixth grounds of appeal did concern the weight of the evidence that got tendered to establish the guilt of the appellant. It has been the view of the learned Sate Attorney that, the evidence from PW2 and PW3 did sufficiently establish that, on the fateful date, the appellant was arrested with the iron bars that were discovered to have been cut from TAZARA Railway. Under the circumstances, the trial Magistrate was justified to hold him culpable to the charged offence. The question before this Court is as to whether the position taken by the trial Court as supported by the learned State Attorney is plausible. This Court is Ot agreement with the learned State Attorney that, the evidence relied by the trial Court to convict the appellant was that of PW2 and PW3 only because, the third witness for the prosecution, that is PWI was called to the scene of the incident after the appellant had been arrested and the exhibits recovered and therefore, what he told the Court, was just hearsay from the other two. The subsequent question therefore, is as to whether the evider1ce by the two did satisfactorily establish that, the appellant was the one who damaged the TAZARA Railway or put it in another way, as to whether the appellant was the one who cut the eleven iron bars recovered from the Railway line. In his testimony before the Court, Satmbuli Rashid (PW2) did tell the Court that, on the 3 fateful date at the particular time, that is at about 0400 hours, after having suspected that there was something wrong being done at the Railway bridge, he did go to awaken his village mates so that together they could go and check what was amiss. Near the bridge, they did find the appellant who on being asked as to what he was doing there, he did tell them that, he was searching for something which he had lost. It was testified further by the witness that, when they joined Lim in the search, they did manage to find the iron bars, two bicycles and a bush knife and a saw. When they asked the appellant as regards those recovered items he turned to be wild. On their part, they did join their efforts and managed to put him under arrest. It was after such arrest when they did involve PW1 who was an employee of TAZARA. As regards the testimony of PW3 (Aaron Msao), the same told the Court that, after having been awaken by PW2 on the material night, the three of them that is, himself PW3, PW2 and one Antony Kiwanga did I move to the TAZARA Railway. At the same they did find eleven iron bars near the bridge. After such discovery, they did send PW2 to call the street Chairman. Aaron Msao continued to inform the Court that, after PW2 had found the street Chairman and the two were going to the scene of incident where he and Antony Kiwanga were, was when the appellant was seen hiding somewhere near the bridge. And further that, when they tried to move closer to him, he attempted to escape. It was at that instance, when he the witness, Antony Kiwanga and PW1 got involved and they managed to put the appeliant under arrest and connected him to the recovered items. In the light of the above testimonies by the two, it is an open secret that the version by the two was at variance in some parts. What is however obvious from the testimonies of the two is the fact that during his arrest, the appellant was never in possession of any of the items that got recovered at the scene of the incident that included, the eleven iron bars the saw, the axe, and the two 4 bicycles. These items were just connected to the appellant after finding him in suspicious way. Two questions crop from the testimonies of the two witnesses above that is, first were the items and in particular the iron bars, recovered after the appellant had been arrested or before? Secondly, was the appellant arrested after the arrival of PW1 or before? Further questions could still be asked pertaining to the testimonies that was given by the two principal prosecution witnesses. Even the learned trial Magistrate appear to have noticed such shortfalls however, instead of addressing them on the very side where they did emanate, he did shift the burden to the appellant. Unfortunately even after discovering himself that he was falling in that trap, he made no efforts to unhook himself. The third person who had been in the company of the two witnesses, that is Antony Kiwanga, unfortunately was nowhere to give his testimony in Court. It is my feeling that his evidence would have to some extent assisted to clear the puzzle contained in the question posed above. The foregoing shortfall notwithstanding, the mere fact that, the appellant was found near where iron bars believed to have been cut from the TAZARA Railway line, did not sufficiently establish that, he was the one who did the act of cutting. In any event, the existing doubts ought to have benefitted the appellant as it is customarily the practice in criminal justice. Another ground raised by the appellant in his appeal has been to the effect that, the learned trial Magistrate did err to convict him in the first count and acquit him in the second count while the circumstances were the same. The response by Mr. Stambuili has been that the learned trial Magistrate did state his reasons as to why he did so. Indeed, the trial Magistrate did give reasons in his judgment that, the second count was supposed to have been made an alternative count. As such, the conviction in the first count meant the collapse of the second count. I am in agreement with the learned trial Resident Magistrate 61, that, the second count could have been made an alternative. AD the same, the evidence that was tendered by the two prosecution witnesses, there was none to establish that the appellant was found in possession of the iron bars alleged to have been cut from the TAZARA Railway line. As the evidence by both the two witnesses has been held above to be of little weight in associating the recovered items with the appellant, that count could as well no stand. Ultimately thus, the appeal by the appellant is held to be grounded on sound grounds and has to sail through. The decision of the trial Court is therefore quashed and the sentence of imprisonment for fifteen (15) years that had been imposed to the appellant is set aside. Unless the appellant is legally held for any other justifiable cause, he is to be set at liberty forthwith. Order accordingly. JUDGE :4) 29-05-2012