geofrey boniface mwakatima another vs republic 2023 tzhc 22741 16 november 2023

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA CRIMINAL APPEAL NO. 138 OF 2023 (Originating from Criminal Case No. 248 of2020 in the District Court of Mbeya at Mbeya.) GEOFREY BONIFACE MWAKATIMA.......................... 1st APPELLANT AGUSTINO GODFREY MASUBA.................................. 2nd APPELLANT VERSUS THE REPUBLIC......................................................... RESPONDENT JUDGMENT 3&h October & l&h November, 2023 MPAZE, J.: In the District Court of Mbeya at Mbeya the appellants together with Paulo Mbuligwe and Yusuph Sichembe not party to this appeal were arraigned with four counts one, breaking into the building contrary to section 296(a) two, stealing contrary to section 258(1) and 265 and two counts of being found in possession of properties suspected to be stolen contrary to section 312, all of the Penal Code [Cap 16 R: E 2019 now R: E 2022], i In the first count, it was alleged that on the 25th day of May 2020 in the Ilomba area within the district and region of Mbeya, the appellants jointly and together broke and entered into Peter Safaris Hotel and committed the offence there into wit stealing. In the second count, it was alleged that on the same date and place the appellants jointly and together stole five televisions, two made Philips, two make Philips and one make LG valued at TZS. 1,500,000/=, seven curtains, five blankets and two bedsheets valued at TZS775,000/=, five television stands valued at TZS 300,000/= the property of Peter Safaris Hotel, the appellants denied the offences. To prove the case the prosecution paraded five witnesses PWl(Veronica Mlowe), PW2(Rutim Leah Mwanyabu), PW3(Yohana Shira), PW4(SP Boniface Luambano) and PW5(G3801 DCPL Nassoro) and had four exhibits PE1(TV, 3 blankets and 2 bed sheet), P2 and P3(certificates of seizure) and P4(caution statement of the 1st appellant). It was the prosecution case that, on the night of 25th May 2020 Peter Safaris Hotel was broken into and various items were stolen. The information was relayed by PW3 a neighbour who witnessed the incident and informed PW1, the hotel manager. PW1 then alerted PW2 a security officer who, upon conducting a search discovered that various items had been stolen from the rooms. 2 The incident was reported to the police on the same date. Through their investigation the police successfully apprehended the 1st appellant on 22nd August 2020. During the interrogation, the 1st appellant confessed to committing the offences and implicated the 2nd appellant as a co-culprit. A search was conducted at the appellants' residence resulting in the retrieval and seizure of various items. PW5 documented the statement of the 1st appellant, which was subsequently admitted as Exhibit P4. In defence, the appellants testified on how each was arrested, searched and various items taken from him. They stated that the search was conducted in the absence of an independent witness, in short, their defence was a general denial of the offences. At the completion of the trial, the appellants were found guilty and sentenced to four years in respect of the first and second counts. Aggrieved the appellants have preferred the appeal to this court on five grounds in Swahili which can fairly be translated as follows; One, the trial magistrate erred in law when he convicted the appellants while the prosecution side failed to prove the charges beyond a reasonable doubt; Two, the trial magistrate erred in law when he convicted the appellants while evidence of PW4 failed to link from leaders, relatives or neighbours who witnessed search as requires by section 3 38(1)(2)(3)(4) of the Criminal Procedure Act Cap 20 R: E 2019; Three, that the trial magistrate erred in law when he convicted the appellants while PW1, PW2 and PW3 no one among them saw or arrested them at the crime area; Four, that the trial court erred in law when he convicted the appellants relying on Exhibit P2 and P4 which was admitted contrary to the law because no civilian was brought to affirm legality of the Exhibits apart from police PW4 and PW5; and Five, that the defence of the appellants was not considered by the district court in its decision. When the matter was called for hearing the appellants fended themselves whereas the respondent/Republic was represented by Lilian Chagula State attorney. The appellants prayed their grounds of appeal to be adopted and opted for the state attorney to submit first and could rejoin the letter. The state attorney argued grounds 1, 3 and 4 together while grounds 2 and 5 separately. Submitting on the 1, 3, and 4 grounds the state attorney submitted that stealing was proved because the properties they listed in the charge the appellants had no any claim of right over them. That the appellants admitted to committing the offence to PW5 which was corroborated by the caution statement of the 1st appellant, Exhibit P4. 4 It was further argued that through search, the appellants were found with stolen properties after they had orally confessed. The case of Posolo Wilsom @Mwalyego v. Republic, Criminal Appeal No 53 of 2015 was cited to support the argument. In the second ground, it was submitted that although it was the duty of the prosecution to prove the case in terms of section 143 of the Evidence Act, the state attorney argued that it is not the number of witnesses that matter but rather the credibility of the witness and weight of the evidence. She referred the court to the case of Goodluck Kyando v. Republic [2006] TLR 387 to mould the proposition. Arguing ground five it was the state attorney's submission that defence evidence was not considered and therefore beseeched this court to re-evaluate the evidence and come to its own conclusion. From the submission, the state attorney prayed for the appeal to be dismissed. In rejoinder the appellant just submitted that they did not sign the search certificate and there was no independent witness. Having considered the records and arguments in this appeal the only issue calling for the determination is whether the prosecution proved the case beyond reasonable doubt. 5 It is an elementary position of law that, in criminal cases, the burden to prove the allegation beyond reasonable doubt is on the prosecution. Where a reasonable doubt arises, it is also the law, it has to be applied in favour of the accused person. See Luthqnasia Simon Mushi @ Vumi v. Republic, Criminal Appeal Mo.209 of 2019 published on website, www.tanzlii.org.tz [2023] TZCA 17531 Starting with breaking into the building, in terms of section 296(a) of the Penal Code for the offence to be proved it must be proved one, there was breaking and entering into the building and two, the offence was committed. The term braking is defined under section 293 of the Penal Code, it provides; 293.-'(1) A person who breaks any part, whether externa/ or interna/, of a building, or opens by unlocking, pulling, pushing, lifting, or by any other means whatever, any door, window, shutter, cellar flap or other thing, intended to dose or cover an opening in a building, or an opening giving passage from one part of a building to another, is deemed to break the building. (2) A person is deemed to enter a building as soon as any part of his body or any part of any instrument used by him is within the building.' In the present appeal, the appellants were not arrested at the crime scene, no witness saw the appellant break and enter the hotel. Evidence 6 in record is silence on whether the hotel was closed or covered through which it was opened and access in gain. PW1 and PW3 just said things were stolen in the hotel room evidence without explaining how the culprits gained access to the rooms. With those shortcomings, the offence of breaking and entering the building was not proved. Coming to the second count of stealing under section 258 of the Penal Code, after going through the record, this court observed that the evidence, in this case, is purely circumstantial because there is no witness who saw the appellants breaking the house at night or stealing the items mentioned in the second count. Because of that, the case was entirely based on the doctrine of recent possession. In law for that doctrine to be relied upon in order to achieve a valid conviction, four conditions must be fulfilled as was stated in the case of Mkubwa Mwakaqenda v. Republic, Criminal Appeal No. 94 of 2007 (unreported); 'For the doctrine of recent possession to app/y as a basis of a conviction, it must be proved, first, that the property was found with the suspect, second, the property is positively proved to be the property of the complainant, third, that the property was recently stolen from the complainant and lastly, that the stolen thing constitutes the subject of the charge against the accused...' 7 In this appeal, the stated attorney said the case was proved because properties were searched and found with the appellants and that they belonged to the complainant. Further, the appellants admitted orally and through Exhibit P4 confession statement of the 1st appellant. I have carefully analysed the evidence of PW1 who had a duty to prove that the items subject of the case was indeed of Peter Safaris Hotel. The listed properties are common articles which are easily found at marketplaces and can be bought by anyone. In Leonard Mathias Makani and Another vs Republic, Criminal Appeal 579 of 2017 published on the website, www.tanzlii.orq.tz [2023] TZCA 182 the court stated; ' The above proposition of the law, therefore obligates the proper owners or those constructively owning such stolen properties to properly and positively identify them. For such identification to be sufficient, it must be detailed and must give the description of the stolen property by giving special marks and this should be done before they are shown to the witness and before they are produced as exhibit. That way the court is assured that such properties are the ones stolen from the complaints or i//rt//77s.'[Emphasize added] The stolen items were tendered by PW1 but apart from just mentioning them, she did not give any description or specific mark on how she identified that it belonged to Peter Safaris Hotel. The description was neither given to police on which they mounted search nor in court 8 when testifying. It is hard to conclude that the alleged items were from Peter Safaris Hotel. The state attorney submitted that the appellants did not have any claim of right over the properties seized from them. With respect, it is not the law that when the accused does not claim ownership of the property the prosecution has no duty to prove their case the duty is still there. In Ally Bakari and Pili Bakari v Republic [1992] TLR 10 the court held that; '.... That is to say that the presumption ofguilt can only arise where there is cogent proof that the stolen thing possessed by the appellant is the one that was stolen during the commission of the offence charged and, no doubt, it is the prosecution which assumes the burden of such proof, and the fact that the accused does not claim to be the owner ofthe property does not relieve the prosecution of that obligation.' [Emphasize added]. From the evidence in the record, bedsheets and blankets being common articles specification and distinct marks were supposed to be given to the police when reporting the incident and not to wait until it had been found. This is because the appellants also claimed ownership over them in their defence. In the absence of specification of the items stolen, 9 it is difficult to discern upon which items with what specification the police were making an investigation. The state attorney submitted that the accused confessed to the offence relying on oral and confessional statements recorded by PW5 exhibit P4. Starting with oral confession, it is the law that oral confession before a reliable witness can ground a conviction. In this case, it is not clear who confessed orally, PW1 said to the police among the three accused one admitted to committing the offence, but it is not clear who between the two confessed. PW4 said after arresting the appellant they confessed, in my view even if there was such a confession, it was before the police officers in the course of interrogating the appellants, there is no evidence that they were warned of the danger of the confession. In the case of Boniface Mathew Malyanqo @ Shetani Hana Huruma & Another v. Republic, Criminal Appeal 358 of 2018 published on the website, www.tanzlii.org.tz [2020] TZCA 314 it was stated; ' The trial and first appellate courts did not consider the voluntariness of the first appellant's oral confession to PW2. Failure by the police to warn the first appellant who they suspected prior to his making an ora! confession took much weight away from this evidence.' io With respect to the aforementioned law, in the absence of evidence indicating that they were duly informed on the implications of the statements they made it is hard to believe that the appellants while in police custody voluntarily confessed. In respect of the caution statement of the 1st appellant, Exhibit P4, it is settled law that the very best of the witnesses in any criminal trial is an accused person who freely confesses his guilt. See Mohamed Haruna @ Mtupeni & Another v. Republic, Criminal Appeal 259 of 2007 published on website www.tanzlii.org.tz [2010] TZCA 141. For confession to be valid therefore it must constitute all ingredients of the offence as defined under section 3 of the Evidence Act [Cap 6 R: E 2022]. Exhibit P4 is a confession statement of the 1st appellant. I have carefully read the statement and found that indeed it describes how the offence was committed and the items stolen, however, the properties mentioned do not constitute the charge facing the appellants as per the case of Mkubwa Mwakagenda (supra). The same Exhibit P2 does not mention if the property seized was of Peter Safaris Hotel as testified by PW4. In the case under discussion, while it is acknowledged that theft occurred at Peter Safaris Hotel, the evidence on record is insufficient to li meet the legal standard required for establishing a connection between the stolen properties and the appellant. This deficiency renders the prosecution's case unproven. In the upshot, I find the appeal has merit and it is hereby allowed. The conviction against the two appellants is quashed, and their respective sentences are set aside unless they are otherwise lawfully held, they shall be set at liberty forthwith. Dated at Mbeya this 16th November, 2023. M.B PAZE JUDGE Court: Judgment delivered in the presence of the appellants in person and Mr. Agustino Magesa learned state attorney this 16th day November, 2023. Right of Appeal fully explained. 12