frank narisis vs republic 2013 tzhc 2091 1 december 2013

IN THE HIGH COURT OF TANZANIA AT TAN GA CRIMINAL APPEAL NO. 40 OF 2013 [From the Decision of Lushoto District Court at Lushoto in Criminal C ase no. 64 of 2013] ’ ~ . 4 I > FRANK NARISIS............ .................................!............................................ APPELLANT 4 > , * , - VERSUS . THE REPUBLIC..............!....... ...................................................................RESPONDENT I JUDGMENT U. MSUYA, J. In the District Court of Lushoto at Lushoto, the appellant Frank Narisis along with Bakari M uya, Khalifa Issah and David John were charg ed with three counts of offence. These counts w ere burglary contrary to sections293 and 294 (1) (a) (b) of the Penal Code C a p . 16 R. E. 2002, stealing contrary to sections 258 (1) 265 of the Penal C o d e C a p . 16 R. E. 2002 and neglect to prevent an offence contrary to section 383 of the Penal C o d e C a p . 16 R. E. 2002,'the first, second V and third, respectively. i It was alleged in the first count that on 25/2/2013 at about 21:00 hours at Tumaini Lodge-within Lushoto District in Tanga Region, the appellant together with Bakari Muya unlawfully entered into the building of Tumaini Lodge with the intent to commit an offence of c stealing. It w as further alleged on the second count that on the material d ay, sam e p la ce and time, the appellant to g e th e r’with i > Bakari Muya stole one laptop m ake I pad ap p le valued at 'Tshs. i > 1,000,000/=, one mobile phone m ake I phone 4 ap p le valued at Tshs. 600,000/=, cash mone^ Tshs. 1,000,000/= and 200 Euro which were the properties of Johannes M aria. Further, it w as alleged in the third count that Khalifa Issah. and David John jointly and together unlawfully failed to use all reasonable m eans to prevent the commission of burglary and stealing. The a c c u se d persons denied the ch arg e . But after full trial, the trial count found the ap pellant guilty the offences of burglary and stealing. Also instead of the offence of neglect to prevent an o ffence, the court found David John 'guilty of conspiracy offence. The rest, Bakari Muya and Khalifa Issah w ere found not guilty and w ere accordingly acq uitted. Lastly, the trial court convicted the appellant and David John. It p ro ceed ed to punish the appellant to serve a concurrent sentence of three years in jail- in respect of burglary o ffence and two years in jail in respect of the-offence o,f ** stealing. David John w as punished to serve a sen tence of one y e a r in jail and both the appellant and David John w ere also ordered to com pensate the victim the sum of Tshs. 3,000,000/=. 2 Briefly, the ground of conviction and sentences were based on the following evid e n ce w hich were established on record. On the m aterial day, the appellant (DW1) w as a receptionist and custodian of keys of different rooms at Tumaini Lodge. On that d ay, the witness received various categories of guests and one of them w as Johannes M aria. A ccording to the witness, on that d a y and around 20.00 hours, electricity, power went off and the a re a b e ca m e dark. * t 7 * This forced him together with Bakarl Muya (DW2) to switch on the generator fixed at the Lodge and they-also supplied various candles r- \- J • # to all rooms. The witness (BW1) also a d d u ce d that around 21.00 hours he w as at the reception room where Johannes Maria c a m e to i * him and com plained that his properties w ere stolen from his room. The appellant d ecid ed to inform his boss (PW1) Lilian Isack, m anag er of the lodge who w as not present at the lodge. The witnesses (DW1 and DW2) also notified the incident to M ariane Shekusa (PW2), a cashier of Tumain Lodge. Also, they reported the incident at Lushoto police station. On their part, PW1 and PW2 a d d u c e d evid en ce to the effect th.at they received the information and w ent to the scene of crime. PW2 a d d u ce d further that at the scen e of crime she observed that door locks w ere broken. They further ad d u ce d that the com plaint informed them that his laptop, Euro 200, Tshs. 1,000,000/= w ere stolen. The evid e n ce that the incident w as reported to Lushoto police station by the ap pellant and DW2. Was confirmed by G 6016 D/C Asajile (PW3), a police officer from Lushdtolf police station. PW3 testified further that he investigated the matter 3 and at the scene of crim e he observed that the door locks of the room from which the alleged items w ere stolen w as disturbed by sharp object and, the keys w ere used to open it. The witness also interviewed the appellant as a custodian of the keys. Also, in the course of investigation, the witness noted that the keys of the room in question w ere in possession of Khalfa Issa (DW3) and David John (DW4) who w ere w atch m en oft,fhe lodge. The investigator also noted that Bakari Muya (DW2) was supposed not to be at work b e cau se he had dqy\qff, 'This led^PW3, ah investigator to ch arg e and arraign the appellant (DW1), Bakari Muya (DW2), Khalfa Issa (DW3) and David John (DW4) in the trial court. As indicated earlier, the trial court only co n victed the appellant and David John and sentenced them accordingly. The appellant w as aggrieved with both conviction and sentence and hen ce preferred this ap p e a l. His grievances in the m em orandum of ap p e a l are co u ch e d as follows: 1. That the Learned Trial Magistrate grossly erred in law and in fa ct by convicting the Appellant Solely on circum stantial evid en ce. 2. That the Learned Trial Magistrate erred on a point of law and fa ct by convicting the appellant against the weight of evid e n ce on record. 3. That the Learned Trial Magistrate grossly misdirected himself ^nV imposing the sentence in utter disregard of the law and principles of sentencing. 4. That the Trial Magistrate erred in law and in fa ct in ignoring the germ ane grounds submitted in mitigation before imposing the sentence. At the hearing of this a p p e a l the appellant w as represented by r Mr. Sanga Learned Counsel w hereas .the Republic w as represented by Miss Msalangi who did not oppose the a p p e a l. \ . j -t. • ^ In his submissions;*Mr* Sanga Learned.Counsel insisted that the ca se was not proved to the required standard on the ground that, the ch arg e was based on circum stantial evid e n ce which did not irresistibly point a fingure to the appellant and second that there was no direct evid en ce a d d u c e d in support of the ch arg e. The Learned Counsel referred this court to the decision in the c a se of ally Fundi V . R. [1983] T. L R. to the effect that the appellant w as ch arg ed on suspicious grounds and suspicion how ever g rave it cannot be a substitute of proof in the court of justice. Lastly, the Learned Counsel insisted that the trial court did not take into consideration the factors for imposing a sentence and hen ce arrived at excessive sentence. For these reasons, the Learned Counsel insisted that since the appellant was suspected b e cau se of being a receptionist of Tumaini Lodge, then such suspicion ought to h ave not been the basis of conviction. He therefore urged the court to quash the conviction, ^ set aside the sentence imposed against the appellant and h e n ce ’ set him free. 5 As correctly submitted by the Learned Counsel and State Attorney, the evidence-on record indicates that the appellant was suspected to have com m itted the offences b e ca u se he was the custodian of the keys. An regards, various authorities insist that suspicion how ever strong canno t be the basis of conviction. Some of the cases which insist on the matter are the c a se of Ally Fundi V. R. [1983j T. L. R. 210 an d the c a se of Erasmus Daudi V. R. [1993] T. L R. 102. In the present c a se none of the prosecution witnesses ad d u ce d to have seen the appellant breaking the door locks and stealing the items m entioned. In that regard, the case w as based on circumstantial e vid e n ce . .N ow , for circum stantial evid e n ce to lead into conviction, it must irresistibly prove that a person is guilty of the charged o ffence. The principle is enunciated in the c a se of Simon Msoffe V . R. [1958] E. A. C. A. 715 in which at p ag e 716 where the East Africa Court of A p p eal insisted that: “A c a se that depends on circum stantial evid en ce the court should not convict unless the circum stantial evid e n ce irresistibly prove that the a c c u se d is guilty of the offence charg ed against him ”. In the present c a se , the evid e n ce on record does not irresistibly point a figure to the appellant. Further to that, this court has observed that the* com plainant, Johannes Maria who w as the victim of the crime w as not called as a witness in the trial court. Johannes' Maria was a key witness who ought to have been summoned. His 6