mahene kashinje godeshi vs republic 2023 tzhc 23739 11 december 2023

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB-REGISTRY AT MBEYA CRIMINAL APPEAL NO. 109 OF 2023 (Originating from the District Court of Chunya at Chunya, in Criminal Case No. 27 of 2022) MAHENE KASHINJE @ GODESHI.............................................. APPELLANT VERSUS THE REPUBLIC..................................................................... RESPONDENT JUDGMENT Date of Last Order: 18/09/2023 Date of Judgement: 11/12/2023 NDUNGURU, J. This is the first appeal. MAHENE KASHINJE @ GODESHI (the appellant) is faulting the decision of the District Court of Chunya at Chunya (the trial Court) in criminal case No. 22 of 2022. The facts raising to this appeal are that; the appellant and four others who are not subject of this appeal were arraigned before the trial Court with two counts of breaking into building with intent to commit an offence contrary to section 297 and threat to injure a public Servant contrary to section 35 both sections of the Penal Code Cap. 16 RE 2022. i In the first count, it was stated in the particulars of the offence that the appellant and his accomplice did break and enter into the building of one Yohana S/O Mpangwa with intent to commit an offence therein to wit stealing. They denied the charges. After a full trial, the appellant only was convicted of the first count and sentenced to serve seven years in jail. Dissatisfied, the appellant is now before this Court challenging the decision of the trial Court. He raised four grounds of appeal but they can be conveniently reduced into two that: One, that the prosecution did not prove the case at the required standard and two, that the defence evidence was not considered. During hearing of the appeal, the appellant appeared himself, unrepresented while Mr. Rajab Msemo, learned Sate Attorney appeared for the respondent/Republic. When the appellant was invited to expound his grounds of appeal, he only requested for his grounds of appeal to be considered and the appeal be allowed. In reply, Mr. Msemo resisted the appeal. He supported the conviction and the sentence. In his submission he reproduced the 2 evidence in the way they were adduced by PW1 and PW2 and that their testimonies proved the case at the required standard as they were also supported by PW3. On the complaint that the defence evidence was not considered Mr. Msemo contended that the same did not raise any doubt or shake the prosecution evidence he thus urged this Court to dismiss the appeal. I have considered the grounds of appeal and the submission by Mr. Msemo. The issue for consideration is whether the present appeal has merit. I have to start with ground two of the improvised ground of appeal. The appellant complained that his defence evidence was not considered. It is trite law that the trial Court is obliged to consider evidence adduced by both parties i.e the prosecution and defence evidence before reaching to its decision. Failure to do so is fatal, see- Stayoo Kundai vs Republic [2008] TLR 352 and Hussein Idd & another vs Republic [1986] TLR 169. In the matter under consideration, I have thoroughly read the impugned judgment. Indeed, the learned trial Magistrate did not consider the defence evidence he only said that DW1 (i.e the appellant) 3 admitted in the undisputed fact that he was arrested at the crime scene on the fateful date. However, there was evidence by the appellant that he was arrested out side the fence of the crime scene as he was a passerby. And in the fact which the appellant admitted did not state that he was arrested inside the fence of the scene crime. Therefore, the fact that he admitted to have been arrested at the crime scene did not form any base for not considering his defence. The appellant's complaint thus, has merit. Nonetheless, this Court being the first appellate court will consider her defence along with the prosecution evidence when will be resolving the first improvised ground of appeal. In the first ground of appeal the appellant complained that the prosecution did not prove the case beyond reasonable doubt. Needless to restate a well-settled principle in criminal cases that a burden of proof lies upon the prosecution and it is beyond reasonable doubt. And it never shifts to the accused person. See the holding in the case of Pascal Yoya ©Maganga vs Republic, Criminal Appeal No. 248 of 2017 Court of Appeal of Tanzania (Unreported). As to the above principle on the prosecution's burden to prove the case, an accused only needs to raise some reasonable doubt on the 4 prosecution case and he need not prove his innocence. This was the holding in Mwita and Others vs Republic [1977] LRT 54 where it was emphasized that: - "The appellants' duty was not to prove that their defense was true. They were simply required to raise a reasonable doubt in the mind of the magistrate and no more." In this matter, the appellant was convicted of the offence of breaking into building with intent to commit an offence. The section provides: "297. Any person who breaks and enters a school house, shop, warehouse, store, workshop, garage, office or counting house, or a building which is adjacent to a dwelling house and occupied with it but is not part of it, or any building used as a place of worship, with intent to commit an offence therein, is guilty of an offence,..." In that section it means for a person to be convicted it has to be proved that he breaks and enter the building as listed in the section with intent to commit an offence. 5 In this case the appellant was charged that he broke the building of one Yohana Mpangwa but it was not stated in the particulars of the offence which type of building was. In the evidence it was established that the said building is the store where carbon containing gold were kept. Now the question is, was the break and entering into the store proved. The prosecution had three witnesses; PW1, PW2, and PW3. PW1, a police officer testified that he was with fellow police hiding after they received a tip that certain bandits had planned to invade the mining area and steal thereat. That while hiding he saw some people enter the plant premises. He ordered other police to arrest those people but they tried to run as the result the 1st appellant was shot on his leg. PW1 also said that the appellant was interdicted when he was trying to break the door of the store where carbon was kept. Further that all bandits were stopped and told they are under arrest but they decided to run away. On his side, PW2 testified that having reported to police about the information he received that the bandits would invade his plant and stole carbon containing gold on the following day that in the next day during night hours he received information that bandits have been arrested at his mining area. Then that he saw them when they were already 6 arrested and he was told that others have run away. He went on that he found the door of the store opened, the padlock and the door flame broken. PW3 said that he saw the bandits who started to break the carbon store room. That him and other police fired bullet on air to stop them (bandits) but they started running then he shot the appellant. In turn, the appellant fended that he was arrested out of the fence of the mining as a mere passerby. That the police took him inside the fence and shot him. That the case was fabricated against him. He also raised a concern during defence testimony that PW1 and PW3 said that they arrested him with a machete but the same was not tendered. In this summary of evidence of both sides, the undisputed fact is that the appellant was shot. The question arises does the same prove breaking and enter a building? I think, it is not. This is because the witness said that he was shot in the mining plant/area but did not say if the so-called mining plant is a building capable of being broken. As I have hinted earlier, it was not stated in the particulars of the offence what was the nature of the building. In my view, if the building referred was a store, the evidence did not prove if the appellant break and entered into it. PW1 and PW3 who were physically at the crime scene 7 said that the appellant and other bandits were interdicted when they were trying to break the store. But, PW2 who said that he was not present at the time of arrest, said that he found the door of the store opened padlock and door flame broken. This piece of evidence is hard to believe. It does not appeal why those who were at the scene did not talk about breaking of door flame nor padlock as they just said that the bandits were trying to break. This contradiction is material and it punches hole in the prosecution evidence. Thus, the defence by the appellant that he was arrested out of fence makes sense. Also, failure by the prosecution to tender the said machete which they said they arrested the appellant with punches hole to their evidence. In the premises, I find the ground of appeal meritorious that the prosecution did not prove the case beyond reasonable doubt. In the result, I allow the appeal, quash the conviction and set aside sentence meted out to the appellant. I order the appellants immediate release from prison unless he is held therein for another lawful cause. It is so ordered. D.B. NDUNGURU, JUDGE 11/12/2023 8