CRIMINAL APPEAL CASE NO 102 of 2023IMANI SABINUS NEWNEWNEW

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MTWARA SUB-REGISTRY AT MTWARA CRIMINAL APPEAL CASE NO 102 OF 2023 (Originating from Uwale District Court at Liwale in Criminal Case No 29 of 2023) ' IMANI SABINUS NDUNGURU.......... ................... APPELLANT VERSUS V' o THE REPUBLIC ......... RESPONDENT A. V JUDGMENT V Pate oflast Order: 8^ November2023. Date OfJudgement:2^ November2023 LALTAIKA, J, „ The. appellant, IMANI SABINUS NDUNGURU was arraigned in the District Court of Uwale at Liwale charged with two counts. 1. Burglary c/s 293(1)(2) and 294(l)(a) and (2) of the Penal Code Cap 16 RE 2022. 2. Stealing c/s 258(1) (2) (a) and 265 of the Penal Code (supra). Page 1 of 9 The prosecution's story was that on 13/5/2023 in the night hours, at Likongowele Village, Liwale District and Lindi Region, the appellant broke into and entered into the house of one BAHATI RAJABU M ATU MU LA with an intention to steal therein. On the same day he stole one phone .MAKE TECHNO valued at TZS 30,000/= and another phone make TECHNO valued a. 11 at TZS 250,000/= and cash money to the tune of TZS 50,000/= the total amount of the stollen property and cash being 330,000/= property of the said BAHATI RA3ABU MATUMULA. xv When the charge was read over and explained to the appellant (then Ur *?!$•,. ATI. accused) he pleaded not guilty. This necessitated the conducting of a full trial. The trial court, having been convinced that the case had been proven V I beyond reasonable doubt, convicted the appellant as charged and sentenced him to serve 5 years in prison for the first count and acquitted him for the $ «... % £ second count, r 4,. 4, Dissatisfied, the appellant has appealed to this court on 5 grounds. For . x v reasons that will be clear shortly, I choose not to reproduce them. When the appeal was called for hearing on the of November 2023, the appellant appeared in person, unrepresented. The respondent Republic, Page 2 of 9 on the other hand, appeared through Mr. Steven Aron Kondoro, learned State Attorney. The appellant, not being learned in law, indicated that he had nothing to add to the expounded grounds of appeal. However, he reserved his right to a rejoinder if the need arose. Mr. Kondoro, the learned State Attorney, mentioned that he has identified two groups of grounds worthy of response, categorizing them as <^7 follows: the first group pertains to the allegation that the case was not proven beyond reasonable doubt (comprising grounds 2, 3, and 4), and the / second group (5th ground) raises concerns about proper identification. He expressed his support for these groups of appeal, emphasizing that it is the responsibility of the prosecution to prove the case beyond reasonable % V3 doubt. Mr. Koridoro pointed out that upon analyzing the evidence of PW1 (the victim), PW2, and PW3, there was no indication of any documentary or 4C physical evidence presented that directly implicated the appellant as the culprit. Specifically, PW1, who claimed not to have known the accused before the incident, did not provide details on how the appellant was apprehended, Page 3 of 9 except for being arrested by the people’s militia (askarijamify who stated openly that they found him with nothing. During cross-examination, the appellant asserted that PW2 also V" mentioned finding him with nothing, further supporting the argument that the case was not proven beyond reasonable doubt. In Mr. Kondoro's opinion, the appeal should be allowed on the grounds that the case was not sufficiently proven beyond reasonable doubt. -v The appellant, in his brief rejoinder submission, prayed that the court s’” £I't agrees with the learned lawyer. He emphasized that even the house number was unknown, implying that the case was fabricated to cause trouble for him. He explained that he had just come from the shamba (farm) when he Was unexpectedly attacked by the polisijamii(a form of community initiative to patrol and police their local area). The incident led to his being taken to the hospital, subsequently to the police, then to court, and he found himself in current legal trouble. I have dispassionately considered the submissions by both parties. Our criminal justice requires that the prosecution case is proved beyond reasonable doubt. This duty rests on the prosecution. See Page 4 of 9 WOODMINTON V. DPP [1935] AC 462. In the case of MAG ENDO PAUL AND ANOTHER V. REPUBLIC [1993] TLR 219 the CAT held that "For a case to be taken to have been proved beyond reasonable doubt its evidence must be strongly against the accused as to leave a remote possibility in his favour which can easily be dismissed." The principle of proof beyond reasonable ,doubt stands as a cornerstone in criminal law, emphasizing^j^critical need for a high standard of evidence to establish guilt in criminal proceedings. This principle % I/ serves to protect the fundamental rights of individuals arid ensures that the immense power of the state to punish is used responsibly. As a fundamental tenet of justice, the requirement of proof beyond reasonable doubt reflects society's commitment -to fairness, accuracy, and the presumption of innocence. The origin of the principle can be traced back to English common law, evolving over centuries to become a fundamental aspect of legal systems worldwide. It emerged as a response to the arbitrary and oppressive practices that characterized earlier legal systems, where individuals could be convicted based on flimsy or insufficient evidence. The shift towards a more Page 5 of 9 rigorous standard reflected a growing recognition of the potential for injustice and the importance of safeguarding individual liberties. At the heart of the principle of proof beyond reasonable doubt lies the presumption of innocence. This foundational concept dictatesthatan •x-^i| accused person is presumed innocent until proven guilty. It places the burden squarely on the prosecution to prove each element of the alleged offense beyond a reasonable doubt, rather than requiring'the defendant to prove their innocence. The principle of proof beyond reasonable doubt acts as a safeguard ^-4^ v against miscarriages of justice. It recognizes the fallibility of the legal system and the potential for errors in judgment. Courts acknowledge that absolute certainty is unattainable, but/the standard ensures that only cases where guilt is established to a high degree of probability result in convictions. This safeguards innocent individuals from wrongful punishment and reinforces % X#/ ft"1 public confidence in the justice system. zC ^Strrthe matter at hand, as bitterly lamented by the appellant and unwaveringly supported by the leaned State Attorney, the prosecution has not been able to link the accused with the offence committed. The evidence adduced leaves a lot of gaps that should not have Page 6 of 9 warranted conviction. For example, PW1, who claimed not to have known the accused before the incident, did not provide details on how the appellant was apprehended, except for being arrested by the people's militia (askari jamii) who stated that they found him with nothing. It appears that the appellant was not only unrepresented but also fairly unable to express himself to the be believed by the learned trial Magistrate. As a reminder, the Court Of Appeal of Tanzania in JOHN MAKOLOBELA KULWA AND ANOTHER V. R. [2002] TLR 296 stated: 4c mi, "/I personJs not guilty of a criminal offence £ simply^ because his defence is not believed. -. Rather a person is found guilty and convicted /C ofa criminal offence because of the strength of the prosecution case that has proved the case beyond reasonable doubt." K ,jT’ 7^ AsM \vindup, I am inclined to state that I recently perused an interesting book: A HANDBOOK FOR MAGISTRATES IN THE PRIMARY COURTS (Published by the Judiciary of Tanzania-JoT with the support of the world Bank, January 2019). I found therein "Maxims for Magistrates" which I consider very useful and applicable to all bench holders, at all levels. Page 7 of 9 The 3rd Maxim provides: "Never hesitate to acquit a man [this includes woman] against whom the evidence is insufficient." As seen, the learned Magistrate in this case should not have hesitated to acquit the appellant. The evidence adduced was clearly insufficient to ground conviction. Premised on the above, I allow the appeal. I hereby quash conviction, set aside the sentence and order that the appellant IMANI SABIN US NDUNGURU be released from jail forthwith unless he is being withheld for any other lawful reason. It is so ordered]., JE.I. LALTAIKA JUDGE 27.11.2023 Court This judgement is delivered under my hand and the seal of this Court this 27th day of November 2023 in the presence of Mr. Melchior Hurubano, leaned State Attorney for the Respondent and the appellant who has appeared in person unrepresented. Page 8 of 9 Page 9 of 9