20180411 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA DODOMA DISTRICT REGISTRY AT DODOMA (APPELLATE JURISDICTION) (DC) CRIMINAL APPEAL NO. 135 OF 2017 ( Original Criminal Case No. 33 of 2013 in the District Court of Iramba at Kiomboi) SELEMAN ABUBAKARI .............................................. .. APPELLANT VERSUS THE REPUBLIC.11: ■ l ■■ I ■ ••········································~······· RESPONDENT JUDGMENT 15/3 & 11/4/2018 KWARIKO, J: The appellant herein and another then second accused not part to this appeal stood charged before the District Court of Iramba at Kiomboi with the offence of Cattle theft contrary to section 265 (1) of the Penal Code [CAP 16 R.E. 2002]. The prosecution alleged that on the 21 st day of April, 2013 at about 03:00 hours at Maluga Village within Iramba District in Singida Region, the apl)ellant and another jointly and together stole one head of cattle valued at TShs. 250,000/= the property of one JISANDU s/o MPULI. The two denied the charge whereas the prosecution brought a total of three witnesses to prove the same. The evidence from the prosecution can be summarised as hereunder. 1 On 01/4/2013 PW1, RAMADHAN SAID went to the second accused s home to inspect his cows he was keeping there and also wanted the second accused to put marks on them. He also found the appellant herein marking his two cows. The appellant left leaving his cows at the second 1 accused s home. Therefore, PW1 took all cows for grazing. Meanwhile, JISANDU MPULI, PW3, the complainant had his black bull with no any mark lost 1 where in the course of searching he got to PW1 s home where he identified one bull that had been sent by the appellant for marking to be his property. The black bull was tendered in court as exhibit PL Whereas No. 374 PC ABEL, PW3 testified that upon information of this incident he found the appellant under restraint and upon interrogation he said he had bought the cows from the complainant1s younger brother but he had no any permit to that effect. In his defence the appellant said he was arrested by five people who assaulted him before police came and was sent to police station where he found the second accused who was not known to him before. The appellant discredited the prosecution evidence in that he did not know anything about the case and was not found in possession of any cattle. The second accused denied the allegations. At the end of the trial the appellant and another were convicted and sentenced to five (5) years imprisonment each. 1 The appellant was aggrieved by the trial court s decision where he filed this appeal upon seven grounds of appeal which essentially complain that the prosecution case was not proved beyond reasonable doubts against him. 2 During hearing of the appeal at first the appellant only adopted his grounds of appeal without further explanation whereas Ms. Magili learned State Attorney who argued the appeal on behalf of the respondent Republic did not oppose the same. Her submission will be referred in the course of this judgment. At this juncture the court is required to decide whether the appeal has merit. The court is in agreement with both parties that the prosecution case was not proved beyond reasonable doubt against the appellant for the following reasons: Firstly, as rightly complained and submitted by the appellant and respondent respectively the appellant was not found in possession of the alleged stolen cow. The cow was found in possession of PWl and there was no reason given why the police believed his account but disbelieved the appellant and his co-accused. There was also no proof that the cow ~--- allegedly -identified- -by-the complainant -is- the one .the-appellanLallegedJy ____ . ___ _ sent to the second accused for marking as there was allegedly many cows in possession of PWl when PW3 got there to look for his lost bull. Secondly, the complainant did not prove that exhibit Pl belonged to him since he did not specifically prove the same. As he said his lost bull had no any mark it was not correct that exhibit Pl belonged to him since it could not have been easy to identify it. Thirdly, it was not proved that the cow seized from PW1 is the one tendered in court as exhibit Pl since was not proved how the same was kept between the time of seizure to the moment it was produced in court as exhibit. Thus, the chain of custody in that respect was not proved and I get inspiration in the case of PAULO MADUKA & 4 OTHERS VR, Criminal Appeal No. 110 of 2007 Court of Appeal of Tanzania at Dodoma (unreported). 3 \ ' Fourthly, this court is of the view that if the appellant had confessed to the allegations as PW2 had testified there should have been his confession statement taken in accordance with the law and would have been tendered in court as exhibit, failure of which PW2's evidence remains unproved. For the foregoing it is without doubt that the prosecution case was not proved beyond reasonable doubt against the appellant; thus the appeal has merit and is allowed, conviction quashed and sentence set aside. Finally, it is ordered that the appellant be set at liberty unless his continued incarceration is related to other lawful cause. It is so ordered. --M.-A. ARIKO_ JUDGE 11/4/2018 DATED at DODOMA this 11th day of April, 2018. ~o JUDGE 4 r I Date: 11/04/2018 Coram: Hon. M.A. Kwariko, J. Appellant: Present For Respondent: Mr. Mbogoro State Attorney C/C: R. Mahmoud Mr. Mbogoro State Attorney: The case is for Judgment Appellant: I am ready Court: ·-Jodgment~-delivered-in-cot1rt· today-in-the-presenee--of-t:Me--A~~ellaAt-- --· -- and Mr. Mbogoro learned State Attorney for the Respondent Republic. Mr. Mahmoud Court Clerk present. ~~ ;,:A.~i~ JUDGE 11/4/2018 5