20170605 TZHC Dar es Salaam1

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISRICT REGISTRY) AT DAR ES SALAAM CRIMINAL APPEAL NO. 72 OF 2016 (Arising from Criminal Case No. 74 of 2014 of Rufiji District Court) RASHID HUSSEIN RAMADHANI ............ 1 ST APPELLANT JUMA MADU HU BUGALAMA ....... ....(. ..... 2ND APPELLANT VERSUS THE REPUBLIC ........................................ RESPONDENT · JUDGMENT In ARUFANI, J. The appellants were jointly and together charged with four other persons in the District· Court of Rufiji at Utete with an offence of cattle theft contrary to section 258 and 268 of the Penal Code, Cap 16 R.E 2002. It was stated in the particulars of 1 · the offence that, on 3rd day of July, 2014 at about 21:35 hours at Mkenda village within the District of Rufiji in Coast Region the appellants who respectively \·Vere second and sixth accused persons in the charge sheet together with four others who are not parties in this appeal stole 40 bulls which were property of one Abdulhaman Salmin Mushi. 1 '., The brief facts of the case are to the effect that, the complainant, Abdulhaman Salmin Mushi (PWl) told the trial court is a peasant and pastoralist who used to buy and sell cattle. He said he used to do that business at Mkenda village and Juma Maduhu Bugalama who is the second appellant in this appeal was his cattle man. He said on 3rd day of July, 2014 he went to the cattle auction and left the second appellant and one Hussein who was not charged in the offence looking after his cattle. Upon return from the cattle auction at about 21 :30 hours he found the cattle shed open and there were very few cattle therein. He tried to call upon the second appellant and Hussein but he didn't get their response and when he counted the cattle which were in the cattle shed he found 40 bulls were missing. When he checked the belongings of the second appellant he didn't see his bag or clothes and when he tried to call him by using his mobile phone he didn't get him. Thereafter he reported the matter at Kibiti Police Station. He testified further that, while at Nyamaroda Village he was told by Bodaboda men that, they had seeing the cow feet mark at that area. While searching for them he managed to see Rashid Hussein Ramadhani who is the first appellant. in this appeal together with the second appellant and Hussein who after seeing 2 ' I him they ran away and managed to get twelve bulls at Mkiu Bridge. He said to have taken the said bulls to Nyamaroda Village. He also said to have managed to arrest Kassim Amri Ally as he was communicating with suspects who ran and after interviewing him he told him the person who was leading the move of stealing his bulls is the first appellant. He said to have communicated with the person who brought the second appellant to him and he was arrested at Shinyanga and returned to Kibiti Police station. After other accused persons being arrested were arraigned in Rufiji District Court with an offence of cattle theft. After the trial court heard the evidence of the complainant and other three prosecution's witnesses and the defence of all the accused persons it found the appellants guilty of the offence of cattle theft they were facing before that court and found the rest of the accused persons not guilty of the offence and acquitted them accordingly. The trial court convicted the appellants of the said offence of cattle theft and sentenced them to serve fifteen years imprisonment. The appellants were aggrieved by the decision of the trial court and appealed to this court against both conviction and sentence imposed to them. The petition of appeal filed in this 3 ' I court by the appellants shows the first appellant, Rashid Hussein Ramadhani has six grounds of appeal and the second appellant, Juma Maduhu Bugalama has five grounds of appeal. At the hearing of the appeal the appellants appeared in persons and the Republic/Respondent was represented by Miss Recho Magambo, learned State Attorney. The first appellant told the court he didn't participate in the event of stealing the cattle of the complainant and said he was arrested while at his home and joined in the offence he didn't commit and prayed the court to accept his grounds of appeal and set him free. On his side the second appellant prayed the court to use his five grounds of appeal he filed in this court to quash conviction entered against him and set him free. In her response the learned State Attorney told the court at the outset that, they are supporting the appeal of the appellants. She told the court that, as all grounds of appeal filed in this court by the appellants are centering on one point of proving the case beyond reasonable doubt she will argue all grounds together. She said the evidence of four prosecution's witnesses produced to the trial court failed to prove the charge levelled against the appellants to the standard required by law. 4 The learned State. Attorney told the court that, if you look the evidence of the complainant, Abdulhaman Salmin Mushi (PW1) at page 15 of the typed proceeding of the trial court you will find the said witness told the trial court that, in the course of making a follow up of his stolen bulls he managed to get 12 bulls out of 40 bulls which were stolen in possession of Kassim Amiri Ally who was the first accused person in the trial court but the said accused person was found not quilt of the offence and acquitted. She continued to state that, the complainant said the first accused person and the second appellant were his cattle keepers and when communicating through mobile phone in relation to the event of stealing his bulls he managed to receive the phone call of the second appellant without his knowledge. The learned State Attorney told the court that, the trial court convicted the appellant by relying on the evidence of co accused person alone v11ithout any other evidence to corroborate the same. She said that is contrary to section 33 of the Evidence Act, Cap 6, R.E 2002. She added that, though it was said there was telephone communication between the first accused person and the second appellant and the first accused person did not dispute its existence but there is no evidence adduced in tl1e trial court to 5 establish the alleged communication was about what. She stated further that, the evidence adduced at page 38 of the typed proceeding of the trial court shows that, the first accused person said to have received a phone call from the first appellant who told him there was a legal. business and directed him to communicate with the second appellant. The learned State Attorney stated that, the said evidence did not manage to establish the offence the appellants were facing at the trial court and prayed the court to quash the conviction entered against the appellants and set aside the sentence imposed to the appellants as the evidence adduced at the trial court by the prosecution witnesses failed to establish the offence levelled against the appellants to the standard required by law. After considering the arguments and submission advanced to this court by the appellants and after going through the grounds of appeal filed in this court by the appellants and the evidence recorded in the proceeding of the trial court, the court has found as rightly stated by the learned State Attorney all of the grounds of appeal filed in this court by the appellants are centering in one major point that the charge levelled against them of cattle theft was not proved beyond reasonable doubt as 6 required by law. Therefore in determining this appeal the· court will center its decision on the said point. The court has considered the argument and submission of the appellants that they didn't participate in the event of stealing the bulls of the complainant and the submission of the learned state Attorney that the evidence adduced at the trial court by the prosecution's witnesses did not manage to prove the charge levelled against the appellants to the standard required by law ·and come to the finding that, the learned State Attorney who supported the appeal of the appellants did not either read thoroughly or understood clearly the evidence recorded in the proceeding of the trial court. The court has come to the above finding after seeing that, while the learned State Attorney is saying PWl said at page 15 of the proceeding of the trial court that the first accused person, Kassim l'"'mri Ally was his cattle man but there is nowhere in the said page of the trial court's proceeding is recorded PWl stated the mentioned accused person was his cattle man. Also the court has found the submission of the learned State Attorney that, the telephone communication between the said first accused person and the second appellant in this appeal as appeared at page 38 of the typed proceeding of the trial court did not establish what legal 7 business the first accused person were talking about cannot be taken as a sufficient ground of finding the charge levelled against the appellants was not proved to the standard required by law. It is the view of this court that, the evidence of PWl which shows how the appellants participated in the event of stealing his cattle is supported by what is stated in the cautioned statement of the second appellant which was admitted in the trial court proceeding as an exhibit without any objection. The second appellant is recorded to have stated in the said cautioned statement that he was influenced by Hussein who were working together in taking care of the cattle of the complainant to participate in the event of stealing the cattle. He stated in the same cautioned statement that, the said Hussein communicated with the first appellant by using his mobile phone number and the first appellant told Hussein to take the bulls to Nyamaroda Village where the business of selling and buying the cattle would have been done. The second appellant stated further in the same cautioned statement that, after being told by Hussein PWl had report the event of his cattle to have been stolen to the police station they abandoned the cattle they had stolen and went to find a transport of coming to Dar es Salaam and thereafter he returned to his home at Shinyanga 8 where he was arrested and returned to Rufiji and joined with other accused persons to answer the charge of stealing the cattle. The court has considered the defence of alibi raised by the second appellant in his defence that he was not at Rufiji when the event occurred as he had gone to Shinyanga to attend burial ceremony of his father and find the same was ·not accepted by the trial court and as was not raised before the commencement of hearing of the case as required by law as it vvas raised in the defence of the said appellant this court has failed to see any justification of finding contrary to what was found by the trial court that it was an afterthought. The court has considered another point raised in the grounds of appeal of the second appellant that the trial court erred in law and fact by relaying on telephone communication print out admitted in the case as an exhibit but failed to see any merit in the said point. The court has found the said point has no merit after seeing there is no dispute that the mobile phone number of the second appellant appearing in the said exhibit was used by Hussein to communicate with the first appellant. The argument that there was no contract of registration of the said mobile phone number tendered to the tr~al court to 9 establish it belonged to the second appellant and it should have been accompanied by a voice mail to ascertain it was used by the appellants has not been accepted by this court to be a sufficient reason to find the said exhibit was immaterial evidence which would have not been used in establishing the charge levelled against the appellants as stated in the grounds of appeal of the second appellant. The court has considered another argument raised by the second appellant in ground number four of his grounds of appeal that, he left his mobile phone number to be used by his relative at the premises of the complainant and come to the finding that, the said evidence was not accepted by the trial court and this court has no any reason which can make it to differ with the finding of the trial court which was in a better position to assess· the credibility of the evidence of the witnesses testified before it. The court has also considered the point raised in the fourth ground of appeal of the first appellant that the trial court erred in law and fact by relaying on the defence of DWl to convict him while the said witness was an accomplice witness whose evidence should have not been relied upon to convict him but failed to see any merit in this point because there is nowhere in the judgment of the trial court indicated the trial court's Magistrate relied on 10 evidence of DWl to convict him. If the court will take the first appellant intention was to refer to the evidence of the second appellant which was used by the trial court to convict him of the offence he was facing in the trial court which the learned State Attorney argued is contrary to section 33 of the Evidence Act, Cap 6, R.E 2002, the court has found the said point has no merit. The court has come to the above finding after seeing subsection two of the said provision of the law states clearly that, when there is an evidence to corroborate the confession of the co accused. person the court can use that evidence to convict another accused person and in the case at hand there was evidence of PWl who stated clearly how he intervened the telephone communication between Hussein and the first appellant who were talking about the business which later on was found to be the business of buying the cattle of PWl. In the light of all what is stated hereinabove the court has found all the grounds of appeal filed in this court by the appellants which were supported by the learned State Attorney who represented the Republic in this appeal have no any merit which can make this court to find contrary to the finding of the trial court in relation to the conviction entered against the appellants. 11 .. However, before putting my pen down I have found proper to examine the sentence of fifteen years imprisonment imposed to the appellants for the purposes of being satisfied if is a proper sentence in accordance with the law. The court has come to the above view after seeing that, though there is no any ground rais~d in the petition of appeal of the appellant to challenge the said sentence and the provision of the law upon which the appellants were convicted of is providing for sentence of fifteen years imprisonment for a person who has been convicted of the offence of cattle theft but it was inappropriate for the appellants to be given such a sentence. The court has come to the above view after seeing the said sentence is not the minimum one which would .have been imposed to the appellants who were first offender because the. minimum sentence provided under section 5 (b) of the Minimum Sentence Act, Cap 90, R.E 2002 as amended by Act No. 13 of 2007 for a person who has been convicted of an offence of cattle theft contrary to section 268 of the Penal Code, Cap 16 R.E 2002 is five years imprisonment. That being the position of the law it is the view of this court that, before the appellants being subjected into an imprisonment of fifteen years provided under the above provision of the Penal Code the trial court was supposed to take 12 into consideration the principles governing imposition of sentence. These principles were stated in the case of Mussa Ally Yusufu V. R, Criminal Appeal No. 72 of 2006 CAT at Dodoma (Unreported) to be as follows: "the important factors to be taken into consideration includes the factors like convicted person is a first offende~ the period of time spent in custody before being convicted and sentencect, his age, health and -any other extenuating circumstances like that the convicted person pleaded guilty to the offence and thereby demonstrate remorse. " As it appears in the record of the trial court there is no ~ny factor which was considered, by the trial court before imposing the sentence ·of fifteen years imprisonment to the appellants. Since the appellants were first offender as there was no previous record that they have ever being convicted in any other offence it is the view of this court that, the trial court '"'as- supposed to impose a lenient sentence to them. In addition to that, the sentence imposed to the appellant was beyond the sentencing power qf the trial court which under 13 • • section 170 of the Criminal Procedure Act. Cap 20, R.E 2002 the trial Magistrate who presided over the matter had power of imposing to the appellants a sentence which is not more than five years imprisonment. That being the case the court has found the sentence of fifteen years imprisonment imposed to the appellants by the trial court is not only inappropriate sentence but also illegal. In the upshot and by being led by all what I have stated herelnabove the court has found that, though the grounds of appeal filed in this court by the appellants have been found have no any merit but the court has found as the sentence imposed to them is inappropriate and illegal then the sentence of fifteen years imprisonment imposed to them is hereby reduced to five years imprisonment and the same to be counted from the date they were convicted by the trial court. It is so ordered. Dated at Dar es Sqlaam this 5th day of June, 2017 &R~~, . ~~f~f~4v.~:>\'r~\~ . · . ., f ~'.J.;,:A/}·:· I 2;ARUFANI ~- -L... 1LJ,\ 1 r''<l-·,,,~;>¥··,·'"". " ·• \,f":,.'l, ·.1., \;5'.,,\~it:;,1~~t:}•:.i:& I ~·•Jf •-)1\ _· _) ~ . . \',:< -~-'''/4.'\'/f 1 ~ JUDGE .5/6/20,17