CRIMINAL APPEAL NO

THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA CRIMINAL APPEAL NO. 30963 OF 2024 (Originating from Criminal Case No. 161 lof2024 in the Resident Magistrate Court of Lindi at Lindi) SHABANI HUSSEIN YUSUPH ................................... APPELLANT VERSUS THE REPUBLIC........................................................ RESPONDENT JUDGMENT lGh &2CN December,2024 DING'OHI, J. In the Court of the Resident Magistrate of Lindi at Lindi, the appellant, Shabani Hussein Yusuph@ Shabaten, was charged with two counts: Is* is Burglary contrary to sections 294(l)(a) and (2) of the Penal Page 1 of 22 Code [Cap 16 [R: E 2022]; 2nd count is stealing contrary to sections 258(1) and 265 of the Penal Code [ Cap 16 R: E 2022]. It was alleged that on 28th July 2023, the appellant did break and entered the house of Hamisi Salum Issa located at Nang'aka village within the District and Region of Lindi with intent to commit an offence therein namely theft. After the appellant broke into the said house did steal therein a motorcycle make TVS STAR with registration No. MC 805 DHG valued at Tanzania shillings two million and six hundred thousand (Tsh 2,600,000/=) the property of Hamisi Salum Issa and disappeared with it. After the victim woke up, he found that his aforementioned motorcycle disappeared. He gave information to his bodaboda colleagues who joined and started searching for the appellant. In the course of searching the information was received that the appellant was seen at Itigi village holding the motorcycle. The effort to trace him proved unsuccessful. The incident was then reported at Mtama police station. On 31st December 2023, there was information that the appellant was seen at Milola village. The PW1, who is alleged to be the owner of the stolen motorcycle, assigned the village militia to find and arrest the appellant. The appellant was then arrested and taken to Mtama police station. At Mtama police station the appellant was interrogated by WP Page 2 of 22 7663 D/CPL Josephine. In his cautioned statement, it is alleged that the appellant admitted to having committed the offence. The appellant was thereafter brought to Lindi police station for further action. He was then taken to the justice of peace one Hon. D.E Kimath of Lindi Urban Primary Court. It is alleged, before the justice of the peace the appellant admitted to having committed the offence charged. After completing the investigation, the appellant was taken before the trial court to answer the charge subject to this appeal. The appellant denied the charge. After a full trial, he was convicted of both counts. He was sentenced to serve five (5) years' imprisonment for the first count and three years' imprisonment for the second count. Being unhappy with the conviction and sentence/ the appellant has filed this appeal armed with five (5) grounds as follows: 1. That, the trial Magistrate erred in law and fact by holding that the charge against the appellant was proved beyond reasonable doubt while there are serious doubts thereon. 2. The trial Magistrate erred both on law and fact by wrongly evaluating the evidence tendered before her by Pwl, Pw2, Pw3, Pw4, Pw5, Pw6, and Pw7 which failed justice be seen to be done. Page 3 of 22 3. That, the trial court erred on both law and facts by relying on the exhibits, which were improperly tendered and illegally admitted. 4. That, the trial court erred on both law and fact by accepting the evidence tendered to prove the charge which the same was very doubtful and contradictory. 5. That, the court erred on both law and fact by failing to consider the appellant's evidence in his defense without making any evaluation thereon. At the hearing of this appeal, Mr. Mwapili represented the Republic. The appellant appeared in person. When submitting on the first ground of appeal the appellant contended that the victim Hamisi told the trial court that he did not know him and the appellant was not the one who stole the alleged motorcycle. He (Hamisi) proceeded to disclose the name of the thief to be one Ally Shaban but the trial magistrate did not consider the evidence of that witness. Furthermore, the appellant contended that he was convicted of the offense of stealing the motorcycle but the alleged stolen motorcycle was not tendered in court as exhibit. Moreover, the appellant contended that the registration card of the alleged stolen motorcycle mentions the owner to be Hedel Investment Company Ltd and not the alleged victim Aidan Page 4 of 22 Mkongwa. That is not all, in the trial court judgment, the same motorcycle is said to be owned by Hamisi Salum Issa. The appellant submitted further that, in the trial court proceedings, the PW2 who is the police officer testified that the appellant admitted having committed the offense before him. According to him, that is not true. The PW2 did not take his statement but he told him that his statement would be taken in the presence of his relative or friends but that was not done. He proceeded to submit the doubt in respect of the evidence of PW4, the arresting police officer, in that, the witness told the court that he arrested the appellant but at the same time, the same witness said that he was informed by his senior officer who works with him that there was a person who was to be arrested on that day at his village. The appellant insisted therefore that his arrest was of that style and there was no arrest warrant or search warrant. Additionally, the appellant says he was not arrested with any stolen property. According to him, the arresting officer told the trial court that there was no leader or any other independent witness at the arrest. Another doubt identified by the appellant is on the evidence of PW5, the independent witness. The witness told the trial court that he was informed that Hamisi Issa Salum's motorcycle was stolen, while the appellant was not properly identified. Page 5 of 22 He insisted that Ally Shabani (PW7), was supposed to be the first suspect in the case. He was arrested and charged for the same offences but he was released. His statement was tendered as evidence but he did not testify. He rested his submission by a prayer to this court that his appeal be allowed. To oppose the submission, Mr. Mwapili submitted that, the conviction and sentence imposed by the trial court on the appellant were proper. The appellant has raised five grounds of appeal but all fall within three areas that require proof of the offense to the standard of beyond reasonable doubt. The second is on the procedure of tendering and admission of exhibits and the third is on considering the defense evidence. Starting with the complaint that the case was not proved; he was of the view that the case proved beyond reasonable doubt as required by the law. In the trial court, the appellant was charged with two counts, burglary and stealing. The appellant stole the motorcycle. In proving the stealing charge, the prosecution called the PW2. This witness is the police officer who interrogated the accused person. The witness told the trial court that during interrogation the appellant admitted before him that he broke the house and stole the motorcycle from therein. He tendered a cautioned statement to that effect which was admitted as exhibit P3. He added that, during the inquiry, the PW2 told the trial court that after he Page 6 of 22 stole the said motorcycle the appellant sold it to one Ally. Ally was arrested but later they found that he was not the one who stole the motorcycle but knew all that happened. They intended Ally to be their witness but was not found when required to testify. However, they complied with the requirement of section 34B of the Evidence Act to tender the statement of the witness who was not found recorded by PW7. In his evidence, the PW7 told the trial court that Ally purchased the motorcycle which was seized at his home, from the present accused person. Ally also sold the same to one citizen of Mozambique. PW7 tendered the statement of Ally to that effect. The statement was admitted as exhibit P6. As to the owner of the motorcycle they called the PW1. He told the trial court that it was his property. He stated that he purchased the same from Hedel Investment Company Ltd. After he so purchased the PW1 gave it to the PW3 to use as a bodaboda(motorcycle). Therefore, throughout the ownership read the name of Hedel. The PW1 tendered Exhibit Pl the Purchase receipt and motorcycle Registration card (Exhibit P2). The appellant said the motorcycle is not the property of the complainant because the registration card of the same does not bear his name. The reason why the registration card does not bear the name of the complainant is stated on page 7 of the trial court proceedings; Insisted counsel for the respondent. Page 7 of 22 There is also a complaint on the tendering of exhibits. The appellant complains that the exhibits were admitted illegally. We are of the stance that tendering of all 7 exhibits was done in compliance with the law including the Exhibit Management Guidelines by the Judiciary of Tanzania, the issue of September 2020 especially para 2.4.3 which talks about the steps of tendering exhibits. The ground has no merit it is to be dismissed. In respect of a complaint that in its decision the trial court did not consider the defense evidence, the learned state attorney submitted that after thoroughly perusing the judgment of the trial court, it is evident that the trial court considered the evidence of the defense side as well. That, the trial court properly analyzed and evaluated the whole evidence and found that the prosecution side managed to prove the charge against the appellant beyond reasonable doubt. To sum up his submission the learned state attorney submitted that, if this appellate court will find that the trial court did not evaluate the evidence properly, this being the first appellate court may step into the shoes of the trial court to re-evaluate the same and arrive at its conclusion. In rejoinder, the appellant submitted that nobody is said to have seen him stealing. There is no document tendered that shows that Aidan Page 8 of 22 Valentino Mkongwa and Hamisi Salumu agreed to the purchase of the motorcycle. Having heard the submissions of both sides and examined the evidence in the trial court record, I will now consider the grounds for appeal. Grounds 1, 2, and 4 will be consolidated to form one ground because they talk about a similar issue. Grounds 3 and 5 will be discussed separately. I will start with Ground 3, followed by Ground 5, then Ground 1,2> and 4 will be the last. Starting with 3rd ground, the complaint is that the trial court relied on the exhibits that were improperly tendered and illegally admitted. It is the settled law that, once a document is intended to be relied upon in court, after being admitted, the contents of that document should be read over loudly in court to make the opposite party understand the contents of that document. In the case of Robison Mwanjisi and Three Others vs. R [2003] TLR 218, the court held that: 'Whenever it is intended to introduce any document in evidence, it should first be cleared for admission and be admitted, before it can be readout7 It is on the record that the exhibits tendered and admitted at the trial court were purchase Receipt Exhibit Pl, Motorcycle Registration card Page 9 of 22 Exhibit P2, caution statement Exhibit P3, witness statement Exhibit P4, sketch map of the scene of crime Exhibit P5, and witness statement, Exhibit P6. The appellant complained that these exhibits were not properly admitted at the trial. I have perused the trial court file. According to the records exhibits Pl, exhibit P3, exhibit P4, exhibit P5, and exhibit P6 were properly admitted. However, the Motorcycle registration card exhibit P2 was not properly admitted. For easy reference part of the trial court proceedings on page 7 is reproduced: - PW1:1 identify the motorcycle registration card by the above descriptions PWl: I want the card to be part of my evidence PP: I pray that the card is accepted as a court exhibit if no objection from the defense side Accused: I have no objection Court: The motorcycle registration card is accepted as court exhibit marked P2 Thereafter trial magistrate proceeded with other stages of recording the evidence without allowing the witness to read the contents of the motorcycle registration card. That is fatal. The consequence of failure to Page 10 of 22 read the contents of the document admitted in court without following the procedures is to be expunged from the court's record. That requirement of the law was insisted by the Court of Appeal in the case of Mbagga Julius vs. R, Criminal Appeal No. 131 of 2015, Court of Appeal at Mwanza(unreported), where it was stated that: - 'Failure to read out documentary exhibits after their admission renders the said evidence contained in that documents, improperly admitted, and should be expunged from the record'. The developed above principle of the law was also emphasized in the case of Aneth Furaha and three others vs. Director of Public Prosecutions/ Criminal Appeal No. 161 of 2018 at Bukoba (unreported) where it was stated that: - 'After the documents are admitted, is for the contents to be read over before being acted upon in evidence'. Having that principle in mind, Exhibit P2 Motorcycle registration card, is hereby expunged from the court record for the failure of the trial court to follow the required mandatory procedure to admit that document. Page 11 of 22 As regards the 5th ground, the complaint is on the failure of the trial court to consider defense evidence and the failure to evaluate the same. Admittedly the law requires that where the court considers the outcome of any case it has to be based on the evidence given before the court. That is to say, the trial magistrate or judge has an uncompromised duty to scan and weigh the evidence given by both parties before coming to the finalization of his judgment. Thus, failure to do so is fatal and contrary to the rule of fair trial. This position of the law is stated by the Court of Appeal in the case of Yusuph Amani vs. Republic, Criminal Appeal No. 255 of 2014 (unreported) where it was observed that; "ft is the position of'the-law that, generally failure or rather improper evaluation of the evidence leads to wrong conclusions resulting into miscarriage of justice. In that regard, failure to consider defense evidence is fata! and usually vitiates the conviction". In this appeal at hand, the appellant complained that his evidence was not considered and evaluated by the trial court. After careful perusal of the trial court record especially on pages 16 and 17 I am satisfied that the trial court considered the defense evidence as required by the law. The trial magistrate stated as follows in his judgment; Page 12 of 22 As noted, the accused has no duty to prove his innocence before the court, but to raise doubt on the prosecution case. Concerning the motorcycle, the evidence is dear that the same was said to have been sold to a resident of Mozambique and therefore could not be recovered and be tendered before the court in evidence. Nonrecovery of the stolen property cannot bar the guest ofjustice because it is not always possible to recover stolen properties and therefore this is not a pre­ requisite to charge a person before a court of law if there is evidence against him that he committed the offense. The trial court went further to state that; As for his other allegations, they seem to be afterthoughts because he had not raised the issue at any point during the hearing of the prosecution case, nor did he point to the name of the police officer who required him to give money, taking into account that three police officers appeared before this court giving evidence against him. From the above-quoted parts of the trial court judgment, it is my settled view that the trial magistrate not only considered defense evidence Page 13 of 22 but also critically evaluated the defense case. Therefore, this ground has no merits. Lastly on grounds 1,2 and 4 of the petition of appeal. The complaint is that the prosecution side at the trial court did not prove the charge against the appellant beyond reasonable doubt. It is now long settled that, in criminal justice, the burden of proof is on the shoulder of the prosecution. The prosecution side is required to prove its case to the required standard of the law that is beyond a reasonable doubt. This position of the law is provided under section 3(2)(a) of the Evidence Act, Cap 6 R: E 2022, which provides that: - (2)" A fact is said to be proved when - (a) In Criminal matters, except where any statute or other law provides otherwise, the court is satisfied by the prosecution beyond reasonable doubt that the facts exist; That position was also made in the case of Nathaniel Alphonce Mapunda and Benjamin Alphonce Mapunda Vs. Republic [2006] TLR 395, whereby the Court of Appeal of Tanzania held that: - Page 14 of 22 'In a criminal trial, the burden ofproof always lies on the prosecution. And the proof has to be beyond reasonable doubt.' As rightly submitted by the learned State Attorney this court may reevaluate the evidence in the trial court record and come to its findings, I took time to review the proceedings and all evidence in the trial court record. In an attempt to prove its case at the trial court the prosecution side paraded seven (7) witnesses namely Aidati Valentino Mkongwa (PW1), WP 7663D/C Josephine Raymond (PW2), Hamisi Salum Issa (PW3), Mohamed Hassan Ally (PW4), Abilalli Ally Seif (PW5), F3072DC John (PW6), and lastly Assistant Inspector Sadick (PW7). Also, the prosecution side tendered six exhibits. Exhibits Pl, P2, P3, P4, P5, and P6 as also mentioned herein above. The appellant still complains that in prosecution evidence there were a lot of contradictions. He maintains therefore that the prosecution side failed to prove the charge against him. Hamisi Salum Issa (PW3) was the key witness in the prosecution case at the trial. His evidence was to the effect that, on 23/06/2022 he went to Masasi with his boss Aidati (PW1), to buy a motorcycle TVS. MC 805 DHC, for Tsh 2,600,000/=, he stayed with the said motorcycle up to 27/07/2023. On 28/07/2023 at 05.00 hrs the PW3 when packed the said Page 15 of 22 motorcycle at his father's house at Nang'aka village within the District and Region of Lindi, the motorcycle was stolen. They started to search for the stolen motorcycle. On the way to Itigi village, they met a person who was going down while they were climbing the hill with his Motorcycle. PW3 testified further that; he identified the person seen with the motorcycle to be Shabani, the present appellant. According to the PW3, it was the first time to see the appellant. It was his fellows who told him that the person who was on the motorcycle was Shabani. The testimony of Aidati Valentino Mkongwa (PW1) was to the effect that, on 23/06/2022 she traveled with (PW3) Hamisi Sal urn Issa to Masasi Mtwara to purchase a Motorcycle TVS 125, MC 805 DHC for Tshs 2,600,000/= at the Shop of Hedel Investment Company Ltd. After purchasing the PW1 gave the said Motorcycle to Salum Hamisi Issa (PW3) to use the same as bodaboda. The PW1 tendered in the trial court a receipt for the purchase of the Motorcycle (exhibit Pl) and Motorcycle registration card (exhibit P2). The PW1 testified further that on 28/07/2023 she received a call from (PW3) telling her that the Motorcycle was stolen in the Nang'aka area of Mtama in Lindi District. Later she received another call from PW3 informing her that the appellant was apprehended in connection with stealing the motorcycle. Page 16 of 22 Apart from other witnesses paraded by the prosecution at the trial court the PW1 and PW3 were the key witnesses who expected to have the concrete evidence which would prove without doubt that it was the present appellant who stole the motorcycle. Now the question is! Did the evidence of PW1 and PW3 as summarized above connect the appellant with the alleged offense? Without hesitation, the answer is no and I will have my reasons. First, PW3 told the trial court that his father told him that the motorcycle had been stolen, which meant PW3 did not witness the appellant stealing the alleged motorcycle but was just informed by his father about the offense. However, PW3's father was not called in evidence to mention the one who stole the motorcycle. Second, the PW3 told the trial court that he did not know the accused other name as he had never seen him before. The PW3's evidence on page 20 of the trial court's relevant part of the trial court's proceedings is to the effect that; 7 did not know his other name. He did not know the person before that day. My feiiows are the ones who told me that it was Shaban, but I did not see him personally. (PW3) evidence is pure hearsay because he did not see the appellant when stealing the said motorcycle. Moreover, even his father who purported to inform PW3 that the motorcycle was stolen had never named Page 17 of 22 who was the thief. Moreover, his testimonies are the same as that of PW1 who also told the trial court that she was informed by PW3 that the motorcycle was stolen. That means therefore that the whole evidence of those key witnesses is fully hearsay and has not been corroborated with any other reliable evidence connecting the appellant with an offense. In the case of Daimu Daimu Rashid@Double D vs. Republic, Criminal Appeal No, 5 of 2018 (unreported) the Court of Appeal had the following to say; 'Since hearsay evidence is inadmissible then we proceed to discard it from the record. Having done so, we remain with the evidence of PW5. Her evidence was conclusive to find the appellant not guilty of the offenses charged.' I am aware that the PW3 told the trial court that he was informed by his father that his motorcycle was stolen. I think PW3’s father was a material witness who had something to tel) the trial court. If PW3's father would have been called he would have assisted the trial court on whom he saw stealing the motorcycle. Am aware that the prosecution side had a right to call any witness whom they think will prove his case. However, if it fails to call material witnesses the court may draw an inference Page 18 of 22 adverse to the prosecution party. That was insisted in the case of Azizi Abdalah Vs. Republic [1991] TLR 71, where the court held that; ' The general and well-known rule is that the prosecution is under a prima facie duty to call those witnesses who, from their connection with the transaction in question, can testify on material facts. If such witnesses are within reach but are not called without sufficient reason being shown, the court may draw an inference adverse to the prosecution. This was also made clear in the case of Ally Patrie Sanga Vs. The Republic, Criminal Appeal No. 341 of 2017 at Iringa(unreported), it was stated that; ' We tend also to agree with him that failure to call the doctor who was a material witness was fatal, as such omission tainted the prosecution case, the trial court under such circumstances was entitled to draw an adverse inference', The last complaint under this aspect is that the appellant was not properly identified at the scene of the crime. The law on visual Page 19 .of. 22 identification is now iong settled. The Court of Appeal in the case of Waziri Amani vs. R [1980] TLR 250 had the following to educate us: "No court should act on evidence of visual identification unless all possibilities of mistaken identity are eliminated and the court is fully satisfied that the evidence is watertight. The following factors have to be taken into consideration, the time the witness had the accused under observation, the distance at which he observed him, and the condition in which such observation occurred, for instance, whether it was day or night (whether it was dark, if so, was there moonlight or hurricane lamp, etc) whether the witness knew or has seen the accused before or not." However, I know the above guidelines should not be considered and taken as a holly book. It depends t on the other circumstances of the case. I have observed the above guidelines. In this case, the appellant was not properly identified. As to the owner of the stolen property, it is not certain. The charge sheet mentions Hamisi Salumu Issa (PW3) as the owner. The PW1 gave the same to the PW3 to use it as bodaboda. The card mentions Herbel Investment Co. Ltd as the owner. Ally Shabani who is noted to have taken Page 20 of 22 the motorcycle was not arrested. He was the one who alleged that he sold the same in Mozambique. Under the circumstances it is very difficult to connect the appellant with the offense based on the cautioned statement as Ally Shabani was not found to give evidence and taking into account that stolen motorcycle is also not found in the possession of the appellant. The reasoning that the appellant was convicted because he did not dispute that he took the police officers to Masasi where the stolen motorcycle was taken to Ally Shabani is not enough ground for conviction. Depending on the remained evidence given by PW4, fellow bodaboda, and PW6, a police officer, is dangerous under the circumstances of this case, in my view. It is for the foregoing reasons I find that the prosecution side at the trial court did not prove the charge against the appellant to the required standard. The appeal is therefore allowed. The conviction and sentence imposed by the trial court on the appellant are hereby quashed and set aside. I proceed to order the immediate release of the appellant from the prison unless otherwise lawfully held. It is so ordered. DATED at MTWARA this 20th day of December 2024 Page 21 of 22 JUDGE 20/12/2025 COURT: Judgment delivered this 20th day of December 2024 in the presence of Mr. Edson Laurence Mwapili for the Republic and the appellant in person. JUDGE 20/12/2025 Page 22 of 22