mustapher divena chege vs republic 2013 tzhc 2164 5 august 2013

IN THE HIGH COURT OF TANZANIA AT MTWARA CRIMINAL APPEAL NO. 8 OF 2013 Original Masasi District Court at Masasi Criminal Case No. 146 of 2010 Before: E.R. Rwehumbiza, Esq; RM MUSTAPHER DIVENA @ C H E G E .............APPELLANT * VERSUS THE R EP U B LIC ............................................. RESPONDENT Date of last Order - 05/8/2013 ^ Date of Judgment - 07/8/2013 JUDGMENT Y KIBELLA, J. * ^ In Criminal Case No. 146 of 2010 before the District Court of Masasi, the appellant Mustafa Divena @ Chege was prosecuted with two offences \ ■ namely; House breaking, and*Stealing contrary to sections 294(1) and 265 respectively of the Penal Code [Cap. 16 R.E 2002]. It was alleged that on 2nd day of June,,2010 at or about 04:00 hours at Masasi District in Mtwara v; % § Region, the appellant did break and enter a dwelling house of George s/o Habi and\s to le therein one hand set make Nokia 1661 valued at Tshs.80,000/= the property of George Habi. •% . ‘‘r“' The appellant denied the charges and a full trial was conducted. At the end the trial Magistrate was satisfied that the evidence laid before it supported the charge of stealing, and not house breaking. The appellant l was therefore convicted of stealing and sentenced to serve seven (7) years imprisonment. He was aggrieved by conviction and sentence and lodged this appeal. In his memorandum of appeal, the appellant has advanced six (6) grounds of appeal which mainly centres on only one major ground that:- The charge of stealing against him was not proved beyond reasonable doubt. f "* % At the outset, even without scanning the entire trial court’s record, it has been apparent to me, and as rightly viewed b y 'th e learned State Attorney Ms. Mangu that the prosecution testimony laid before the trial court does not tally with the charges leveled against the appellant. While the particulars of the charge sheet, and the facts read before the trial court show that, a mobile phone make Nokia J 661 valued TShs.80,000/= was stolen from the complainant, the complainant testified that it was Nokia V A '. make 1680 which was stolen from him. For easy reference the particulars of the charge partly read:- “..... did steal therein one handset make Nokia - 1661 va lu e d . at TShs.80,000/= the property of George%s/p Habi.” The prosecution side had a burden to prove that Mobile Phone make Nokia - 1661,was stolen from the complainant. Even in the memorandum of facts^tfefore the trial court they acknowledged such duty when they - -„An stated:-^' V V “THE PROSECUTION INTENDS TO PROVE THE FOLLOWING FACTS: I.T h a t the accused name is Mustapher s/0 Divena @ Chege.... 2 ..................... 3. T h a t.....they steal [sic] therein one, handset make Nokia - 1661....” In his testimony before the trial court, the complainant George Habi stated that: "... My phone was stolen... It Is NOKIA 1680. I bought at 80,000/=” [Emphasis mine]. As noted above the charge sheet and the facts which the prosecution had a burden to prove showed that Mobile phone make Nokia 1661 was stolen from the complainant. However the complainant himself as quoted above claimed that his mobile phone make Nokia 1680 was stolen. Under those circumstances not only that the charge of stealing against the \ appellant was not proved beyond reasonable doubt, but also a prima facie case was not established against the appellant. V " 1 It is now a well settled principle that the property alleged stolen and found in possession of the accused must relate to the charges leveled against him. The prosecution must lay evidence to prove the charges as contained in the charge sheet Jfeyond reasonable doubt. This is because, it is through the charge .sheet that the accused is informed and becomes aware of the charges he%is facing so as to be prepared and give his defence. In the jn sta n t case the prosecution never discharged their duty with regard to the appellant’s charges. V. j In the result I agree with Ms. Mangu, learned State Attorney, and proceed to quash the conviction imposed by the trial court and set aside the;sentence, it is ordered that the appellant be released forthwith unless held for other lawful cause. Appeal allowed. Judge 7/8/2013 Order: Judgment delivered in chambers today 7th day of August, 2013 in the presence of the appellant in person as well as in the presence of Ms. Mangu, learned State Attorney for the Respondent Republic. Right of Appeal fully explained. \ i ■ ? \ _►« \ R.M. Kibella^ v Judge 7/8/2013 ^ ......