DC Criminal Appeal 35 of 2022 Judgment Mrisha J

IN THE HIGH COURT OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA DC CRIMINAL APPEAL NO. 35 OF 2022 (Originated from the District Court of Nkasi at Namanyere in Criminal Case No. 123 of2021) KAPAMA MLAPI......................... APPELLANT VERSUS " THE REPUBLIC............. ........... RESPONDENT JUDGMENT 07th November, 2023 & J(f!> Januar/, 20:r- ' (C. MRSIHA,J. The present appeal stem from the decision of the District Court of Nkasi ■kN'! ' s_ - v •? vj. at Namanyere ’(the trial court) which was made on 02.06.2022 vide Criminal Case No. 123 of 2021 between the Republic and the accused person Kapama Mlapi, now the appellant. The winner thereto, was the prosecution Republic. Upon being found guilty and convicted accordingly on two counts he stood charged with, the appellant earned a sentence of four (4) years in prison in respect of the first count of Burglary contrary to Section 294 1 (l)(a) and (2) of the Penal Code, Cap 16 R.E 2019 (the Penal Code). On the second count of Stealing contrary to sections 258(1) and 265 of the Penal Code, he was awarded a custodial sentence of five (5) years and the trial court ordered both sentences to run consecutively. Initially it was alleged in respect of the first count, that on the 19th day of February, 2021 at Ki pili Village within Nkasi District in Rukwa Region, the appellant did break and enter into the house of Sijaona<Barton (PW1) with intent to steal therein. The allegation levelled against the abovenamed .appellant in respect of the second count, were that on the T9th day of February, 2021 at Kipili Village within Nkasi District in Rukwa Region, after breaking and enter into the house of PWlp the said appellant did steal one TV make Rising and one Radio: make Boss of which total value was five hundred and sixty-eight thousand Tanzanian Shillings (568,000/=) being the properties of PW1/ The appellant pleaded not guilty to all the above two counts. This resulted to a full trial after which the trial court found that the prosecution Republic had sufficiently proved its case against the appellant. Consequently, the appellant was convicted and sentenced, as stated above. 2 This did not amuse him at all. So, he decided to protest for his innocent by approaching the court with a Petition of Appeal containing three grounds of grievance which I propose to reproduce as hereunder: 1. That, the trial court erred in law and fact (sic) considered the PW1 evidence as he didn't see the thief (sic) to his house. 2. That, the lower court erred in law (sic); considered the evidence of PW3 and PW4, that in the search ^^7;^ "MX warrant there wasn't any local leader to support the warrant. W;, 3. That, the lower court erred in law and fact to convict me without proper evaluation of evidence as there wasn't any PW1 neighbours or local leader of Kipili ?■ Village to support his evidence. •-T^rL. >-£?' i '^3. At the hearing of the instant appeal, the appellant appeared in person without any legal representation whereas the prosecution Republic had it from Ms. Maula Tweve, learned State Attorney. When given an opportunity to address the court in respect of his grounds of appeal, the appellant briefly submitted that he prays to the court to adopt his 3 petition of appeal in order to form part of his submission in chief. He also prayed that his appeal be allowed and the court sets him free. On her part, Ms. Maula Tweve submitted that having gone through the grounds of appeal as raised by the appellant as well as the proceedings of the trial court, she observed that there are several irregularities which according to her, goes to the root of the case. Hence^she supported the appeal. She began to point out the said irregularities byVstarting r ‘X.-.-x.-Xj. with the a charged offences whereby she submitted that the prosecution failed to prove the offence of burglary because PW1 neither testified before the trial court that he found his house being-broken on the day in question, nor did he testify before that<:.court;jft)w his house was broken. She referred the court to page 7 of the trial court typed proceedings in order to support hef-propbsition. The learned counsel also submitted that PW1 did not state the time when his house was broken. She argued that in order to prove the offence of burglary, the: prosecution must prove that the accused was seen breaking the victim's house, but in the case before the trial court, no evidence was led to show that the appellant was seen breaking the house of PW1. 4 She added that the only evidence relied by the prosecution side was circumstantial evidence which is based on the doctrine of recent possession and the same was related to count number two of stealing and not count number one in which it was alleged that the appellant was found in possession of the stolen items namely a Radio and a TV set. Ms. Maula Tweve further submitted that the . prosecution failed, to lead PW1 properly in identifying the properties alljeged^fbypd'' with the appellant and which he claimed to be his. For instance, the counsel submitted that despite testifying that he managed to identify the radio, PW1 failed to make its description which omission leaves a reasonable doubt whether RW1 was.the real owner of that radio because there are so many radios.and screens./ Also, The prosecution counsel submitted that the prosecution failed to W. W- comply with the procedure of tendering documents before the trial court which require the document to be cleared for admission, admitted and its contents be read out aloud, as stipulated in the case of Erneo Kidilo & Another vs Republic, Criminal Appeal 206 of 2017 [2019] TZ CA 253 (21 August, 2019 Tanzlii) (reported). 5 In applying the above authority to the present appeal, Ms. Mau la Tweve submitted that the prosecution failed to comply with the first stage of clearing the documents for admission, which were tendered by PW1, PW2 and PW3. That apart, the learned counsel for the prosecution Republic submitted search warrant is a very important document where there are no ..., emergence circumstances, but the prosecution case which was heard by ’t-'. the trial court, does not show if there was no need oftobtaining a search warrant before conducting search in the premises of the appellant. In stressing the above point, Ms. Maula Tweve submitted that by virtue of section 38 (1) of the Criminal Procedure Act, Cap 20 R.E. 2022 (the CPA), it is a mandatory requirement for the police officer to have a < > Xfc search warrantiwhen he wants to search the suspect of an offence. She added that PW3 was informed that the appellant was in possession of stolen; items long time ago as it is shown at page 14 of the typed proceedings; that means he had enough time to obtain a search warrant, but he failed to explain away why he did: not have a search warrant. To bolster her argument, Ms. Maula Tweve cited the case of Mustafa Darajani vs Republic, Criminal Appeal No. 277 of 2008 CAT at Iringa (unreported), in which the Court of Appeal emphasized on the need for the police to have a search warrant before conducting search, unless there are exceptional circumstances which necessitate search without a warrant. The last argument from the said prosecution counsel, was intended to fault the trial magistrate for Ordering the sentences imposed upon the appellant to run consecutively without specifying ..the tbfal number of yea rs th e said a p pel I a nt h ad to spen d beyond the pr i son ba rs. " -fee From what she had endeavoured to submitbeforethe court in respect of the appellant's appeal, Ms. Maula Tweve repeated her previous stance by telling the court thatvshe supports thepresent appeal. Hence, she ended by praying to the court that both the convictions and sentences imposed upon the appellant be quashed and the appellant be set free. In rejoinder, the appellant had nothing new to add. He just reiterated his previous prayer, though with a different style for at that stage he urged the court to do just to him. As it has already been pointed above, the prosecution Republic supported the present appeal. However, this being the first appellate court, I have the duty of reevaluating the evidence adduced before the trial court along with considering all the grounds of appeal as well as the submissions of both 7 parties before I decide whether there is a merit in the present appeal. In doing so, I wish to say that I have considered all the three grounds of appeal as they appear in the appellants petition of appeal. I have also considered the submissions of both parties together with all the authorities referred to me by the counsel for the prosecution Republic. It is now my task to find out whether the present appeal is meritorious.. 'W, To start with, I propose to address the first ground of appeal in which the appellant has complained that the trial;-court, erred in law and fact when it considered the evidence of PW1 whose evidence shows that he did not see the thief in his'house. ■ y If I have understood him properly, the appellant is faulting the trial court ..... for grounding convictions against him by relying of the evidence of PW1 who did not testify to have seen him breaking his house, entering into that house and steal his items. In my view, that ground has something to do with the cardinal principle in criminal law which requires the prosecution to prove their case against the accused person beyond any reasonable doubts; See Simon Edson ©Makundi vs Republic, Criminal Appeal No. 5 of 2017-and s Mohamed Haji Ally v. Republic, Criminal Appeal No. 225 of 2018 (all unreported). In the former case, the Court of Appeal sitting at Arusha, stated emphatically that: "It is trite law that the burden of proof in criminal case lies on the prosecution and it never shift to the accused."’ ' ? In the case at hand, the records of the lower court reveal that there was % no prosecution witness who saw the appellant breaking the house of PW1, entering therein and steal’ the alleged stolen properties. The only evidence relied by the prosecution in; imprecating the appellant with the allegations of committing the offences of burglary and stealing, is that he was found in .possession of the allegedly recent stolen items belonging to That' evidence falls under the doctrine of recent possession. In the circumstances, it. cannot be said that the appellant committed those criminal offences, unless that doctrine is properly invoked. Now, the issue here is whether such doctrine was properly invoked by the trial court. 9 In the case of Mustafa Darajani vs Republic (supra) the Court of Appeal made a good clarification on the doctrine of recent possession and I find it opportune to quote, as I hereby do: "Simply stated the doctrine of recent possession goes thus: - Where an accused person is found in possession of property recently stolen which property was duly identified by the complainant, then such an accused persdn fs; taken to have been either the actual thief or a guilty receiver" [Emphasisismine] " $J Back home, the counsel for the prosecution‘has submitted that despite claiming before the trial court that the alleged stolen items which are the Radio and the TV set/are belonging to him, PW1 failed to properly identify them by making a clear description of those items. I have gone through the ..typed proceedings of the trial court and observed that it is true that the said prosecution witness was not properly led to identify the said items before the trial court. This can be reflected at page 7 of the trial court typed proceedings where it appears that before making a prayer to tender the alleged Stolen items, PW1 was recorded to have said that: "On 05.09.2021 I was phoned by police officer of Kirando Police Station to go there to identify the Stolen properties. Actually I 10 went there, saw the properties, there were my properties, I identified my stolen properties properly. That this my Radio, this is my fiat screen TV. I have receipt for these properties, the radio is marked boss serial BS-1831-2L." What can be captured from the above excerpt is that PW1 failed to lay a foundation of his prayer by making a proper identification of the alleged stolen item. For example, he did not mention the colour, of the Radio and TV set. He also did not mention the:modeR Radio and TV set before being allowed to identify those items. T- That is contrary to the procedure of tendering exhibits, as stipulated under Guideline NO; 2.4.2 of the’Exhibits Management Guideline, 2020 which directs that: > ... "The witness must point out specific identification marks, brand or - trade name or other peculiar features in relation to the exhibit to betenderedV It is obvious that PW1 failed to point out the specific identification marks which features the said alleged stolen item. One would have expected him to point out features like colour and make of the said items together with the model numbers, but he failed to do that. All that indicates that the said prosecution witness failed to properly identify those items. 11 In the circumstances, it is my settled view that the doctrine of recent possession was not properly invoked by the trial court in order to ground convictions against the appellant in respect of the two offences he was charged with. In other words, since the alleged stolen properties were not duly identified by the complainant who in this case, was PW1, the appellant can hardly be taken to have been either the actual thief or a guilty receiver of the said alleged stolen itemsand held diable for their stealing contrary to sections 258 (1) and 265 of the Penal. Code. In the same vein, since the prosecution failed to establish that the appellant was seen at the scene of crime breaking the house of the said complainant, it is hard to held him liable for the offence of burglary contrary to section 294 (i) of the Penal Code. Thus, owing to the foregoing reasons, I find merit on the appellant's first ground of appeal. I now turn to the. second ground of appeal which is to the effect that the trial court erred indaw and fact when it considered the evidence of PW3 ... and PW4 who' participated in the exercise of searching him while there was no any local leader to support the warrant. Apart from complaining that the search which was alleged conducted at his premises Was not witnessed by any local leader, the appellant being a layman, seems to confuse between search and search warrant. .12 However, it is lucky that the counsel for the prosecution has assisted the court to understand that ground of appeal. According to the submission of Ms. Maula Tweve, it is was an irregularity for PW3 to conduct search without obtaining a search warrant as per section 38 (1) of the CPA. On my side, I entirely agree with that counsel's argument. This is because it is a mandatory requirement for the police to obtain a search warrant before conducting 'search Jn the suspect's premises, unless there are reasonable grounds ^which justify them to conduct search without a warrant. . The Court of Appeal in the "'case ofMustafa Da raja ni vs Republic (supra) had an opportunity to stress that point. It stated that: v'Under section 38 (l) of the Criminal Procedure Act, Cap. 20 (hencef'orththe Act) Police officers are empowered to search without search warrant provided it is shown there are ' reasonable grounds to do so and that the delay may result in the removal or destruction or endanger life or property. Otherwise search warrants must always be issued." [Emphasis is mine] In the present appeal, the typed records of the trial court do not show if search was conducted in the appellant's premises before PW3 (who is a 13 police officer) could seize the alleged stolen items. This can be inferred at page 14 of the typed proceedings where PW3 was recorded to have said that: "Tarehe 05.09.2021 niiikuwa ofisini Kipiii. Niiipata taarifa kuwa TV na Radio vinauzwa, niiienda Kirando kufuatiHa mtu anayeuza hivyo vitu, mtu huyo aiiyekuwa anauza vitu anaitwa Kapama Miapi. Tuiimkuta navyo vitu hivyo, tuiichukua ■ vitu hivyo toka kwa mshtakiwa ambavyo ni TV na Radio:.." Literally translated, the above except entails that bh 05.09.2021 PW3 was: tipped that the appellant was selling a TV set and a Radio at a place called Kirando and upon "gathering such information, he rushed to the said place and found the appellant in possession of the said items. .fiydy Thereafter, he seized those items from the appellant. From /the above piece'.of evidence, it is apparent that PW3 seized the said alleged stolen/ properties without following to the procedure of conducting search which requires the police officer to obtain a search warrant and find the independent witnesses before conducting search. The evidence of PW3 does not show if he took efforts to obtain a search warrant and get the independent witnesses. 14 Another irregularity which can be reflected from exhibit P3 which is a certificate of seizure, is that the same Was not endorsed by PW4 who testified to have been invited by PW3 as an independent witness, when the police were searching the appellant's premises. I had an opportunity to examine exhibit P3 only to satisfy myself if the said prosecution witness actually participated in the(search process, but I observed that he did not. I say so because-itisthe signature, of the witness which justifies his involvement and participation in the process, but what can be gleaned from the said document is that there is the name of Germanus s/o Sundu who testified as PW4, but the part which the said witness could have been expected to append his SV-*. v-?:- signature thereon, is blank! This is why I have taken the view that the ..TT ' Tb ":'TT;T'T' said witness Was not present during the search process. Having said so, it is my considered opinion that those procedural flaws vitiated the whole proceedings conducted by the trial court and because of that, I am' constrained to expunge exhibit P3 from the record. Having done so, I also find ground number two of the appellant's petition of appeal to have merit. In the third ground of appeal, the appellant has complained that the trial court convicted him without properly evaluating the prosecution 15 evidence as the evidence adduced by PW1 was not corroborated by any of his neighbours, including the local leaders of Kipili Village. This ground was not addressed by the counsel for the prosecution side, but I find it to be a strong one because according to the testimony of PW1 as it can be inferred at page 7 of the typed proceedings, it seems that the evidence of PW1 was not corroborated by his wife whom he told the trial court that he was living with at the time the offences were committed. It is a well settled law that failure to summon a material witness without sufficient reasons, is fatal; see Aziz Abdallah vs Republic [1991] TLR 71 and Pascal Sele vs Republic;: Criminal Appeal No. 57 of 2017 (unreported). ~ .. Since, PV\/1 was living with his wife on the day in question, it was incumbent upon the prosecution to bring the said person before the trial court in order to : corroborate the evidence of PW1 regarding the incidents of burglary and stealing. Also, one would have expected PW1 to approach his neighbour whose house is located near his house, as it is shown on exhibit Pl which is the Sketch map. Had he done so, that neighbour could be among the material Witness to support his evidence before the trial court. 16 In the light of the above omissions, I find that the appellants complaint has merit as if shows: that the prosecution evidence is marred with a number of reasonable doubts as far as the allegations levelled against the appellant are concerned. Hence, it is my considered opinion that had the trial court properly evaluated the evidence of the prosecution and that of the appellant who appears to have strongly ^denied those serious ■ ’■> allegations, it would certainly find that the prosecution side failed to prove their case against the appellant omthe required standard and that in the circumstance, the appellant deserves the benefit of those doubts. Before I pen off, I wish to air-my comments about the submission of the counsel for the prosecution Republic who /Ttfe/ alia, argued that the trial magistrate erred in law by failing to specify the total number of years to be spent by the appellant following the imprisonment sentence of four (4) years in "respect .of the first count, and that of five (5) years in respect of the second count. I have carefully gone through the typed judgment of the trial court particularly at page 10 of the same, and noticed that after passing those sentences, the trial magistrate ordered the said sentences to run consecutively. Whether it was proper for the trial magistrate to order those sentences to run consecutively by an accused person who is a first 17 offender that is not my concern at this moment, but mine is whether there was any need for the trial magistrate to specify the total number of years the appellant ought to have spent in prison while serving his sentences. The answer to that crucial question is not farfetched. When: the trial court orders the sentences to run consecutively aftef^jt has convicted an accused person of more than one offence, it means that the imposed sentences have to run one after another.r y>. :'1 It is opposed to a situation where the court orders the sentences to run concurrently in which case, the ; con vitt^y yvi 11 have to serve those sentences at the same time. This is clearly clarified at page 11 of the Ta nza n i a Se n tend ng G u i del i nes, 2023. ' * $ । A' '• y'•'V'r'' Therefore, it is my considered opinion that there is no law which compel the trial court to specify the total number of years to be served by the convict in prison once it has ordered the sentences to have either run consecutively of concurrently, as the case may be. What the trial court is supposed to do in a situation where it has sentenced the accused person of more than one offence, is to specify whether the sentences shall run concurrently or consecutively. This is because there is a presumption that the sentences should run 18 consecutively unless the court by order directs otherwise; see Shomari Mohamed Mkwama vs Republic, Criminal Appeal No. 606 of 2021. The above being said and done, I am of the settled view that the present appeal is meritorious. It is therefore allowed. In consequence thereof, the convictions passed against the appellant, are hereby quashed and the sentences imposed thereto are set aside. I further order that the appellant be released from prison custody immediately, unless he is otherwise held for some other lawful cause. It is so ordered. m K/ JUDGE 10.01.2024 DATE at SUMBAWANGA this 10th day of Januaiy, 2024. 19