20190624 TZHC Mwanza3

IN THE HIGH COURT OF TANZANIA ..... AT MWANZA CRIMINAL APPEAL NO. 330 OF 2018 [Appeal from the Judgment of the District Court of Musoma in Criminal Case No. 157 · of 2018 dated 29!1 October 2018_. Hon J.O Ndira, Resident Magistrate] WILSON MNIKO @ NG'ARWA .........,.......................... APPELLANT . · . . . . . VERSUS :. ~" \ ~~ . REPUBLIC ............................. · .. \ ~RESPONDENT " . "<~ \~/~~ 11 . . . . . . . . . . . . . . ._. . . . . . . . . . . . . . . . . JUDG~\> . Jd May 2019 & 24" June, 2019, ~,~ M.M. SIYANI, J. I _ The appell,to/il?ik~,Ng!arwa was arraigned and charged at ·v-.._ Musoma Distfict~it fo~~g V contr~ry ~ ""\ r---.::::::? . to section 158 (1) and 265 of : . . ""~',') ,_.:a. ~ >-- . ""'-· ., . . . - . the Pe_ nal Cod~ap,16 RE 2002. It was alleged that on 12th July 2018 he (( \.\~. : . . stol~\~ the sh0p of one Pendo Deogratius located at Mkendo area in \rn~) Musoma, the-sum of Tshs 3,000,000/== and four mobile phones make '. I Nokia and one ITEL all valued at Tshs 450,000/= and Tshs 35,000/= r_espectively. The record at the trial cou~ shows on the material dat_e as · testified by PWl one Neema Charles,. the appellant visited the said Pendo. . I Deogratius sho"p for the purpose of-aq::essing airtel money services where 1 ) he withdrew the sum Tshs 3000/= and when PW1 who attended him went to find change, the appellant seized the moment and stole the alleged Tshs 3,000,000/= and six mobile phones. PWl saw the appellant who was riding a motorcycle leaving her shop with his friend. She raised an alarm for help in-vain. So she took another motorcycle and chase them. Only the appellant was arrested. H·e was however found ~,nothing when· . . . : ~- ~~- / ) searched. Yet he was taken to Police station wliere ..tflese charges/were prepared against him. At the conclusion o ~ t ~ v ~ ~ n t was convicted and sentenced to four years~ ~ i ~ a n order for him to pay the sum of Tsh 3,485,00~il'.1~~ the alleged stolen Aggrieved by<l:Q~O,[),~ appeal which contains eleven (11) . ~~ )l // . grounds_o~~omplair:its~preferred. However, all of those grounds may 11:~~'\f_ ' ' : proP.erly boil aown~only one (1) ground .as follows: \\J· \\ V ~-..!!!5' the trial Magistrate err~ in law. ~nd fact by 1_ . ·to;:cting the appellant O(I_ a case which was not proved beyond reasonable doubts. · At the hearing of this appeal, the appella~t who appeared in person and · unr~presented; adopted ·his grounds of appeal ~nd left it for the court to . I 2 I I ) decide. On the other hand, Ms Changale, th_e learned State Attorney who represented the Republic/respondent was quick to support the appeal on the reason that evidence· tendered during trial left serious doubts on I whether it w·as the appeliant who stole the alleged su·m of money· and phones. The learned State Attorney therefore conceded that, the case was not proved to the required stanqard. : th h th t· 1 ·. ·.rt' ~a ~ t - ~h1 ~1 ·. ·b1. t Havrng gon_e roug e na cou s re~or ~. w1 ·/'ue Imposs1 e o . . . . ~~~;\\ . disagree with Ms · Changale. AR~arently,;--nont~'9.·f.., tne prosecution's . . ~~ '\~ ~-~ witnesses, saw the accused person st~~g\~ prosecution's case was therefore based on circum~ evil:len~)6auced by PW1 who said she· . /2 \\ </\") ~( . left the shop to find,,sorne c~n.ge. for/the appellant who withdrew Tshs, . .·.' ~~ ~~' . . .. 3000/ = thr9wprtel mooeyvservIces bu~ when returned she did not found tl}e..p~llani.U?operties were missing. PW1 however did not(Cs~~\obile number the appellant used to withdraw the \\ . \, V . . ~ . . . " alleged amountlat her shop. That would be important evidence to prove ~., / '-.,._:_;_,.,,- . . ' ' . that the appellant actually· visited her shop as claimed. Normally the records of thos~ who access financial servic~s through ·mobjle banking are . ' . kept ·both by the service providers and th~ dealers. In absence of such evidence the fact that the appellant visited PWl's shop was a mere allegation which was left hanging in the air and unsupported. 3 ) In Elisha Ndatanye Vs Republic, Criminal Appeal No 51 of 1999 the court of Appeal of Tanzania observed the following in relation to circumstantial evidence. Where the evidence against the accused is wholly circumstantial the facts from which an inference to the accused~ught to be drawn must be proved beyond reasonablej0~n~ust 92' clearly connected with the facts from which '0;;i-,nferenc¥r:o be inferred . < . ·~ · ·'"'· . PWl testimonies also shows s h e ~ ~ o peo~le running from her . . ;2~~- wa shop through -motorcycles. ;No evideq_ce however tendered to prove ·/) \\ ~~~- (,7 . who between the_~-R"eople\se_ en running stole the alleged properties. It . ,,r ~ ,,~J . . is even m((dou~ul when tne-fact that the appellant who hired a. motorcycle wGsted ~~ately after his driver stopped the same ~,~~~L:7 - follo(~'l'S~a~but when searched nothing was found.with him, is taken~~n-_s_id_~- eration. 1 - ~ . . Indeed and as stated earlier, evidence tendered shows the appellant stole • ! Tshs 3,000,000/= and six mobi.le phones. The charges however indicates . that apart from the indicated sum, what was ·stolen· was .merely four rno_bile phones. There was therefore varianc~ between the charge and 4 ,, ) evidence tendered in court to support the same and the only explanation that can be given when the two are serious conflicting each other is that ' of failure by the prosecution to prove the case as that defect is uncurable. I find support in this stance from the Court <;>f Appeal decision in Director of Public Prosecutions Vs Yusuf Mohamed. Yusuf Criminal Appeal . ~ . • No.. 331of 2014, where the Court- observed that variance between a .. charge sheet. an d ev1.d ence t en dered .m respec . . t◊'d--t~ O,r\a~ a e o~f- /> . . . .. \ ·2-~V . 'comm1ss1on of the offense was fatal and not curable un~~~ \94(1)(a) of the Zanzibar Criminal Procedure Act wl:li,;~t'eri~Jth section 388 of ~\~ -~~v the Tanzania Criminal Pro(rure,Act C~~~~002. . /{ \(~v- . In view of what all..,.tliat I !lave endeayored to state above, I can now safely conclu<:l~gr~t~hangale and with no flick of doubt that the.._p~~wtiln~~i?not establish the charges against the -~';,-. ~~✓ . apptl~nt. T~Q~~s the late Lugakingira, J. (as he then was) said in Moh'aij;ed KatJdi and Another Vs Republic (1986) TLR ·134 will . ~/ . . . always be on the prosecution· to prove the guilt of the accused persons · beyond reasonable doubt. I~ _th~ circums~ances and for the foregoing reasons, the appeal hold merits. As such I allow t~e same, quash the conviction and set .aside the . 5 ....... J I ·•.. sentence imprisonment by the trial court 'in all three counts with effect I that the appellant should be immediately released from prison forthwith, 1 I unless otherwise held for some lawful cause. It is so ordered~ DATED at MWANZA this 24th1 Day of June, 2019 I I I I I I 6