20190515 TZHC Mwanza

IN THE HIGH COURT Of TANZANIA MWANZA DISTRICT REGISTRY AT MWANZA CRIMINAL APPEAL NO. 186 Of 2017 [Appeal from the Decision of Bukombe District Court in Criminal Case No. 101/2016 Hon. V.M Selemant Resident Magistrate] at Kanembwa Village in Bukombe District, Geita ~egion, conspired with another persor:1 to break a·nd steal from the house of Devotha Jackson. That having executed their plan, the appellant and his fellow entered into the said house and stole therein the sum of Tshs 220,000/== and different domestic apparatuses such as television set, video deck, radio, mattress and clothes, all. properties stolen valued at Tshs 2,268,000/=. At the conclusion of the trial, the appellant was acquitted from the 1st count of conspiracy and found guilty of the remaining two counts. He was therefore convicted and sentenced to serve a prison term of ten 2nd count and five (5) years for the 3rd count. Being aggrieved by that decision,/~,e ' al in this· Court ,,G>ng .,,~~t+ other ·grounds, the • -.. > 4ff_·•·- appeII ant faulted the trial ~-,. urt's qE("•, ion cyiiJfhe following reasons: \ :~:"",?, -&t~i>' '<'11 C .,~:rw;~w,,,... . . (1} Ti/1/i~'Et~t~f!leg '--f{C)jfn properties were not sufficiently 1Jittflll:~~1a1. 1 -fltr. articles alleged to have been stolen were common t nybody may purchase. t>:'·'1 ~ll/he 1 alleged owner ofthe properties failed to produce any ·ocr~,\1i~~1!.lll~i / supporting documents to Justify ownership. (4) That the said cautioned statements was not freely procured When the matter came for hearing on 15th May, 2019, the appellant reiterated the same grounds of complaints and left it for the court to decide his fate. On the other side, Ms Mwanahawa Changale, the learned State Attorney who appeared for the Respondent. Ms Changale consolidated her arguments in respect of the 1, 2nd and 3 rd grounds of appeal and was quick to support the appeal by conceding that there was completely no iota of evidence tendered during the trial to prove . ownership of the alleged stolen properties. She contended that despite claiming to have identified a bag which contained her~len items, PW4 failed to properly describe in details the nature a~-.g~..fsuch -~, \\/.~ the learned State Attorney was of the v i e ~ ~ \ \ testimony was insufficient on what was stolen ~ ( ~ ~ e m s actually were her properties. In supportp s : ~ ~ngale cited the case of Juma Bunyenye Vs Renubhc, ~nrruna~eal No. 233 of 2011 where . 1/?_ \ \ . </)')_ V . . the Court of AppeaL0f'-~{nzan. 1a emnHas,zed the need to have sufficient C, ~ - " ~ proof of. re~ems 1 h ~ of stolen properti.es. ~~ On tne 4th gfol:mcf'8,f appeal, Ms Changale argued that the alleged cautid~d statJ,}ent was wronglY' · admitted as evidence because its ~ contents were not read over after being admitted in court. In her view such evidence ought to have been expunged from the records. In her conclusion, the learned State Attorney argued in support of that appeal that should the appellant's cautioned statements be expunged, the prosecution's case remains with PW4's testimonies which for all purposes ·) · and intents was weak and failed to prove ownership of the alleged stolen properties. In disposing of this appeal, I wish to begin where Ms Changale ended. The complaint in this ground as correctly argued by the learned State Attorney was on the procedure adopted by the tria:I co~\~mittin'g the alleged cautioned statements. It is part of o ~ . ~~e~r a \\A~~"'/ ~~"' document is intended to be introduced in ~i.d~c~,-.i~4be initially \\ be read out in cleared for admission and then ~~lly~itte~hen /,z- ~ v court. [See Walii Abdalla_!½Kibu~an~~ ~thers Vs Republic, Criminal Appeal No . 181 of, 2006/ajrcl~o~~on Mwanjisi and three A\, v~1 Others vs Republ!e,~min~;No. 154 of 1994, Court of Appeal . of Tanzania]{~tion~~ind reading the contents of documentary exhibitsJn_~\~1i~Zsed person a chance to know its contents a n d p ~ ~ f o r defense which included cross examination. T h e r e ~ to read the contents of a document after it has been admitted in the evidence is a fatal irregularity. [See Lack Kilingani Vs Republic, Criminal Appeal No.405 of 2015 Court of Appeal of Tanzania]. In this case, having passed the admissibility test and actually received in court, the contents of exhibit Sl was not read out in court. As noted ) ... , above, such failure prejudiced the appellant. The trial court therefore wrongly acted on exhibit SL Such evidence are not good evidence and I accordingly expunged the sa_me from the records. [See Mbaga Julius Vs Republic, Criminal Appeal No. 131 of 2015 Court of Appeal of Tanzania]. That being said, I will now consider the 1st, 2nd and 3rd ~tinds-of appeal. -~~~Lt In these grounds the appellant challenged the te~1{:i@niEl~/f'~0n the ~ -~\?& reason that being the owner of the alle~~d st0I~~ pr~:~_eities,· PWl failed ~~~\\ to give sufficient details of thos~~e~~~cfer any proof that . tr.-- '\~ the properties were hers. TbenappeUant's C0rf!plaints in these grounds 'v hold merits. As submitted.:~y Ms,8J'a~1{1/ndeed there was no iota of evidence not only f r ~ ~ e rest of the prosecution's witness to support thitClai~that the J)7erties found with the appellant belonged ti ... ·--~~ . to PWLtiJo~~Jl-proseelion's witnesses identified the items claimed ~~\ to ha~sto!r~e importance of identification of the alleged stolen ~ ) . . . propertie§._ in tpeft case, need not emphasis. Its evidence is crucial in ,'.~✓ ~ proving the offense. In David Chacha and 8 others Vs Republic, Criminal Appeal No 12 of 1997 the Court of Appeal of Tanzania observed the fqllowing: At any rate howeve0 we underscore that in theft cases identification of the allegedly stolen property 1s a crucial requirement When testifying in court as to the alleged stolen properties, PW! who claimed ownership of the same stated the following: I t~ld them I didn't know who stole my p~~~ Po/tee I was shown the pt and Z"1 a~~ ~!"5'inKled to "~~v ..~rfi.·;e·'/7.ti-Q-( my clothes. wait for a case to be taken to c0fift:. ~~n. ✓ These are the clothes whicfl~ere~..stolen✓...!bctve seen them ~' ~~ before this court. ... So~ere fol:f~d -- wi~he 1st accused and some with the Z,d acafJ_fed. Tha,(~~ . 4~~ Apparently, the. a~ove e ~ f frem~BW1, shows with certainty that despite ~ ~ ~ claiming owr(l~rship,··she neve"r,identified the same in court. In the case of . ~ - ": "").. 1 ~ V ; ~ . Anzaya-vs Repuf?lic (1986)' KLR 237, where shoes were the alleged fi ~1~ . stole~dfe Court of Appeal of Kenya had this to say on such kind of eviderir;.e;.Y none of the statement of the witnesses identifying the shoes could be regarded as satisfactory and this indicated a lack ofcare on the part of those prosecuting the case to see that the ·exhibit evidence was properly tied ua ....... Unfortunately no member of the complainant family specifically swore that exhibit 77 ·~~, /""\r -~.i L I belonged to the child in question. Instead the complainant merely says ''these shoes// belonged to the chikt without saying which exhibit they were or having them marked for identification. The above persuasive authority from the Court of Appeal of Kenya, sums Lid:? ,{,{,}~~" For the reasons stated, I fi~~~i;;~:Il~tR,is <~~~I and I allow the same. The Judgment of the Bukjw;'~e Distf)~t ~~~(ih ,.,Criminal Case No. 101 of Ai> \t\ <:r>'~"1r~,,~ ,t~Y' 2016 is hereby quasbi~~4:~ci~~Jt~-,~~~:ii5'Pellant's conviction and sentence ~«.-.:7~ ''\t,t:_,/,t'-.. -,-..:,._·:,.:,/..'.,;,;..~_:.,:• is set aside af::Cdrci:f(l'~ly. The~~ppellant should be set free forthwith unless 1:~~\,, J:~ .. "1/r>!' held for, 9tb.er"'la½l.fti!KG:]f!rs~,~~.0'rder accordingly. . _;~!f"~'2 \~~~1~:::~it~-~~ · · •·~·"' ;:;*. "':'.""'.· .·'-':,,,,.· . ,, \ "-/ i;'\ '\/~;Is·.·.•. ,,,~, ,;1:\{;~~idl~o at MWANZA this 15th Day of May 2019 ¾,;· '. ·--. ~ -~~ti. _}~ ·=~~.::;/:?$, . / .