20160923 TZHC Dar es Salaam

·i ·IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CRIMINAL APPEAL NO 94 OF 2016 {Original Cr Case No 19 of 2016 of Kilosa District Court, at Kilosa) IBRAHIM SILONGOYE ......................... APPELANT VERSUS THE REPUBLIC ....................................... RESPONDENT I JUDGMENT 12/8/2016 & 23/9/2016 MZUNA, J.: Ibrahim Silongoye, the appellant, stood charged before Kilosa District Court for the offence of Cattle theft Contrary to section 265 of the Penal code and was sentenced to 15 years imprisonment. He is alleged to have stolen ten heads of cows valued at Tshs 7,000,000/- the property of NAM Ranch, the offence which is said to have been committed on 30th October, 2015, at about day time at Mkata Village within Kilosa District in Morogoro Region. The prosecution evidence which the trial Magistrate based on her judgment was the fact that the cattle hoof marks led the complainant to where the appellant was found with four cows being among the stolen 10 (ten) cows. Apparently, the said cows were among 349 cattle owned by 1 f NAM Ranch where PW1 Mussa Shabani worked as a watchman and the Ranch Manager is Mr. Emmanuel Zakayo (PW2). On the fateful day being 30th October, 2015 at about 12.00 noon, PW1 noticed an unusual sound from the cows. One pastoralist approached PW1 and said that the Masai have invaded the area, that some cattle had been stolen. PW1 joined them and saw four people out of whom he managed to identify the appellant. PW2 decided to look for an assistance. He then called the Manager (PW2). Upon a further follow up he saw the appellant with four cows and was taking the cows in another direction. PW2 decided to inform the Police and PW3 No. 2575 D/Sgt Hassan reported to the scene. The Policemen arrested the appellant who said was together with other three people whom they had agreed to meet at Kangai area but since it was at night they failed to keep on waiting. The appellant made a cautioned statement before No.F3844 D/Cpl Joseph which was tendered by PW3 as exhibit Pl. Similarly, the inventory for the said four cows was admitted as exhibit P2. During his defence case, the appellant denied to have committed the offence. He said that he was arrested while heading to Parakuyo and it was at the time when he was taking bath at the river. He also disputed the cautioned statement that it was received after torture. He said never saw the said cows let alone to have been at NAM Ranch. 2 In this appeal, the appellant appeared in person while M/s Mlegela appeared for the Respondent/Republic and she did not support the appeal. In total there are six grounds of appeal. They bold down to four grounds; 1. That the prosecution witnesses never shown distinctive clear NAM marks on the said cows whether it was 'V' '.X' or 'M' mark. That, mere saying they were black with white strips was not enough. 2. That there was a variance on the number of four cows which was recovered as against the stolen ten cows. That there was no explanation given on the difference of other six cow~ the figure which is too big compared to the time in between the stealing incident and the time of recovering them. 3. That the confession was improperly admitted in evidence as it was obtained by force {was beaten at Kimamba Police Station) and therefore not voluntary. 4. That it was practically impossible for the cows to be stolen at day time otherwise he could have been seen by people who were grazing. From the above raised points, the issues to be discussed are; 1. Whether the cautioned statement was properly received? 2. Whether the charge was proved to the required standard ofproof? 3. Whether the imposed sentence is proper? 3 Starting with the first issue, the argument is that the cautioned statement, exhibit Pl was received without complying with the provisions of Section 27 (3) of the Tanzania Evidence Act, cap 6 RE 2002. M/s Mlegela, the learned State Attorney said that the appellant confessed before PW3 No F. 2575 D/Sgt Hassan and that was after he was given his rights. Further that he confessed even before PW2. I have followed the arguments raised by the appellant and the learned State Attorney. Reading from the proceedings, the said cautioned statement was admitted in court without objection. The learned State attorney says, it is too late to object it at this hour on appeal. However, PW3 admitted it was recorded by No. F 3844 D/Cpl Joseph. No reasons were given as to why it was tendered by PW3 instead of him though he was listed as among the witnesses. That witness was a material witness and failure to call him without sufficient reasons being shown while he was within reach, the only presumption is that if he was called could have given evidence adverse to the prosecution case. See, the case of Azizi Abdallah V. R [1991] TLR 71 There is no declaration that the same was read to him both in the statement and in court. That is procedurally wrong. The mere fact that the said statement was admitted without objection can not justify non observance to the law. That statement is therefore expunged from the record. I understand the position of the law as it was stated in the case of Hamisi Athumani and two Others V. Republic [1993] TLR 110 (CA) that; 4 ''Although the appellants in their defences at the trial repudiated or retracted their confessions once the Trial Court found those confessions to be true it was entitled to base conviction on them." This application would befit the situation where the law was complied with. That is not the case here and the argument by the learned State Attorney that it was received without objection is therefore without merit. The second issue is on burden and standard of proof. The appellant has argued that there was no cogent evidence to convict him as there was no special NAM mark which was stated in court. He faulted the identification of the said cows and that there was no explanation given on the difference between the recovered cows vis a vis other six cows. That it was practically impossible to steal and go unnoticed while it was at day time. The learned State Attorney said that the appellant was arrested some few meters from the scene or area of the incident without lapse of time. She ruled out any possibility of mistaken identity. That PWl Mussa Shabani saw the appellant with four cows at the gate. PWl managed to identify him as well and they sought for the assistance whereby the Policemen came. That the appellant did confess before PW2 the Ranch Manager one Emmanuel Zakayo Laizer where the cows were stolen from. As for the special mark, she said that the cows were red, black and white strips. Further that they had special mark of NAM. That it cannot be said that they belonged to the appellant. She saw no discrepancy for the allegation that the appellant was found with four cows while the stolen cows were ten. 5 - ;:.. It is true as alleged by the learned State Attorney that the conviction was I based on the doctrine of recent possession. The appellant was found red handed with the cows which he never said were his. No reasonable explanation was given to account for the possession. The only presumption is that he was the thief. That position was reiterated in the case of Director of Public Prosecutions V. Joachim Komba [1984] TLR 213 (HC) which cited the case of R. v Bakari s/o Abdallah [1949] 16 EACA 84 where it was held that: "... cases often arise which possession by an accused person of property proved to have been very recently stolen has been held not only to support a presumption of burglary or of breaking and entering but of murder as well, and if all circumstances of a case point to no other reasonable conclusion the presumption can extend to any charge however penal. " The question to ask, was it proved that the said four cows belonged to NAM ranch? The issue touches on the evidence. As a general rule where someone asserts that there is property stolen, there must be proof of three things. First, that indeed the property was stolen as stated under section 258 (1) of the Penal code. Second, that there must be proof that the property found is his by giving special marks. Three, that no reasonable explanation was given to account for the possession. The element of stealing which presupposes asportation with the guilty mind of depriving the owner permanently was proved. It was coupled with the third one that the appellant never claimed to be his cows. 6 The court cannot rely on a mere presumption of recent possession as alleged by the learned State Attorney. Equally important is proof of ownership. It was held in the case of Haruna Mohamed and Another V. The Republic, Criminal Appeal No. 30 of 2001, CAT at Tanga, unreported, that the witness must give details of the descriptions not to be ''generalized in such terms as these items are mine etc. No specific marks or description was given... " In the case under discussion PW2 said that the four cows had NAM mark. It is not appropriate to ask such question on appeal as to whether such mark had peculiar mark like letter 'X', 'V' or 'M'. The record shows that the appellant was properly answered that question at the trial. Suffice to say that indeed PW2 said the cows had NAM mark distinguished to other marks. Reading from the· record, the court relied on the complainant's statement that he gave special descriptions on the cows apart from their colours and said that they had a NAM mark. There is also other cogent evidence that is, the fact that the hoof marks 'foot prints' of the cows led them to where they found the appellant with the cows and was taking them to another direction. There was no lapse of time and the said cows never changed hands. It was direct evidence regardless of whether only four cows were recovered out of ten cows. The conviction cannot be faulted and I find the charge was proved to the required standard of proof. The last issue is on the sentence. Time and again, Magistrates are urged to read between lines the provisions of section 170 of the Criminal Procedure Act, cap 20 RE 2002. The sentence of 15 years was to say the least too excessive and far beyond the sentencing powers of the trial 7 ·. ~·· · Magistrate despite the fact that she was of the rank of Senior Resident Magistrate. The governing provision was section 5 (b) of the Minimum Sentences Act, cap 90 RE 2002 which stipulates a sentence of five years imprisonment. I understand under very rare cases can the appeal court interfere with the sentence save in the following circumstances as stated in the case of Rashid Kaniki V Republic [1993] TLR 258 (CA) that; ''It is trite principle that before a Court of Appeal can interfere with the Trial Court's sentence, the Appeal Court must be satisfied that either the sentence imposed was manifestly excessive or that the Trial Court ignored an important matter or circumstance which ought to have been considered ·while passing the sentence or that the sentence imposed was wrong in principle. " I am satisfied, had the trial Magistrate taken into consideration factors which she never took into consideration, she could not have passed that sentence. I see no compelling reasons to decide otherwise than as stipulated by the law.