20030709 TZHC Dar es Salaam

. ,'. , ~ . "\. ,,,. ,I ~ \·· IN THE :rIGI-I COURT OF T11.1~Ziil'Hii. (OB.lQ..IN.ii.L CRIMHU...L Ch.3E NOo 862 OF 1998 OF THE DIST~ICI1 COD?c'.I1 O:? TT, ·,.LJi ;~•p KIVUimNI) TEE lliiIP.TTBLI G o • o 0 0 • o o a AP?ELL.L-tIJT 1 :.. Versus - J U D G Vi E N T In this case, tbe Director of' Public Prosecutions is appe- aling agc1inst the judgment and Order o.f the District Court o:f Ilala District at Kivuk6rti ..in•cririi'inal Case Noo865 of' 1998 .. L'· .:: •· •• • i In the .. said case, there were eight accused persons na.rnely Shosl10 Y.ohana~<'.AsenterJbi \-Jangael Mus:f-1i, Sheikei Slaa, Eliamdiwe Nestoi.;y and Mathias ,Semtu Ruboa.c _.. They_ wei~e respectively charged to commit a .felony c/s 384 of' the Penal Code and stealing c/s 265 o.f the Penal Code .. On•the first count, it was alleged that on 28th July, 1998 at Kirnara·Agip•, Kinondoni.District, Dar es Salaam Region 9 ··the ace- \ used perso:,.s·did conspire to steal·' s motor· vehicle with RegistTation I . - \ 2 Noo TZM 2447 make Toyota Hiace 9 Supper Roof Valu.ed at Shs,. On the second count 9 i t was alle 0 ed that on the same elate and place, they stole tt--1e same motor vehi@le belonging to the same person.,. In general, it is being alleged that the accused persons conspired to_ steal ond did steal one Hirimina A~ Ma.ssawe' s motor vehicle with Registration Noo TZM. 2447 make Tcyota Hiace S"up~ Roof o All of' them 1r1ere acquitted on both counts o Before proceeding into the merits of this appeal, I have just a little observation to make that is: On the 8th November, 1999 9 it 1Jas indiceted. by the trial Principal Resident M8gistrate that the 8th accused is deadc The cor2m shows that the Fublic Prosecutor v1h0 was present on that day is one Herman but it is not indicated on record as to whether he is the one who infor~ad the Court that the 8th accused is deodo It also not indicated as to whether the cese against him did abate .. For the purposes of' tl-iis appeal, I will assume tlrn.t the :fu- blic :Prosecutor did in.form the Court that the 8th accused died but this in.formation was not put on record and the abatement of.the case against him was equally not recordedu It appears from the record that the 3rd, 4th~ 5th, 6th and 7th accused did defend tl1emselves but the 1st s 2nd 2,nd 8th accused .,_ 3 never gave their respective defences. They did not do so because the 1st and 2nd were 2.t large s.nd the 8th hsd c:tied. In bis amended memorGndum of O.PlJeal, the Dii~ector of l-'ublic Prosecutions states inter -~ e.lia that the trial ?ri21cips.l Resident Magistrate e:cred in LE,W ::,.nd f·ect in acq_ui tting the respondents while there was enough evidence against them, and that she erred in Law by not convicting the accused persons who absc:::)nded in their ab,senc:e when a Prima t'acie case hc:-,d been mode 2g2.in.st them, .and th2,t she --€r- red in Law and fact in holding tbat the motor vehicle .found in the possession of the 7th respondent is not the one stolen from P.W 1. It is prayed by the Director o.f 1-'ublic Prosecutions that the lower court's judgment ond order be set sside 9 the respondents be convicted and the motor vehicle be returned to F'.W 1 1-'!l10 is a lc:,-;i'ul 01,~nero I wish to state at this juncture that the ch2rge on the 1st count should not have been pr2~erred as conspiracy to commit a fe- lony or laid down under S0334 of the ?eno.l Code" It should hsve been preferred as conspiro.cy to commit an offence c/s 331~ of the Penal Code. s.334 of the Penal Code provides for a definition of wh2t a f2lse document mennso Under So2 (2) of the Peno.l Cocle (ii.n:lend.;-;:;ent) Act 11 1980, it is provided that a reference to s. TT felon;y•; or a "mis- demeanollrn in the ~fenel CoCLe or ii-1 ar1y cthei-- ~vri t·ten lcrt,-1 f;Jr t1"1e tirne being in force •• n sh,311 be constr1..12d. 3.S a i--e.fei- ence to s.n offer1ceo 1 0 0 l.J- Under S.4 of the Penal Code (iirnendment) Act, 1980, i t is pre- vided that s.5 of the Penal Code is amended (a) by deleting the I de.finition 'felony' end mis demeanour'. By virtue oi' -S. 4 oi' the said Act, the classification of 2n offence as a felony er a mis- demeanour is no longer in existence. In order to est.sblis h the c hni~ge of conspiracy to commit c1n offence c/s 384 of the Pencl Code, the pros~cution had to establish that there wes a common intention by the respondents to steal the The trio.l court hod to determine 1tJl1ett1er there was such intention .. Evidence o.f P,.'vJ 3 No C 1716 Detc Corpo Samwel is to the effect that the 5th e::.:cused Frederick Stephen A-tei made a statement before him in which he confessed to have conspired with the 3rd accused Sheilcei S1::-c::. and -the 4th c.ccused Elie.mdiwe Helphe Kimaro to ste2l the rnotor vehicle in is.sueo In his state- ment exh. PS~ the 5th e.ccused ':JDS recorded as s2ying that discuss-• ions Rnd plsns to stesl i t ·-,'e~e ::nc.,de in two places~ First i 2.t Mabibo area under~ tree. Second place is at Kimara in the house ,., , .. 1 . n-, of' the 3rd eccused b02l1{:Gl JJ.l..E.!.3 and L~th 3CCUSl2d Eliamdii.r:1e Eelphe Kimaro8 iurthermore, he wss recorded as seying that before stealing it they plenned to do so by pretending to be its owner, ttnuby Esing a forged key 1 and that after stealing it from Kimarn Agip Petrol Station, they should take it to cine F:cc::nk Maungu e.t ;:._rusha which thE:y c'iid, but 2s Fr-:lM Mo.i_:;_ngu wns in Den' es Balsam 1 they lei't it 5 accusedo Let me new examine the true n::.iture o:f tl1e statement mE1de by the 5th accused b0fore P. '.{ 3 No. C 1716 Det. Corp. Samwel in wl1ich he confessed to h:Jve cons;ir2ci and stole the motor vehicle in issue with. the 3rd 2nd 4th cccus2d. persons~ It appears to me tho.t be.fore taking this statement 5 De·c. Corp c Samwel die!. ini'oi~m ths- 5th cccusea that h2 was free to mr:ike · ;:my statement., It appears to me also th2t a:fter being so informed 5 the 5th accused made his stntement v1hicb WGS recorded down and sign2do The 5th 2,ccused ,said in r..is defence t~1et he was tortured by the Police at Magorneni so that he may tell ti1e;i1 where the rJ::itor vetticle in issue v,as taken o.Jter ste~ling i to He did not e:x:-pl2.in il.'.)w he was tortured. A mere allegation by an cccused person that hs,~as tortured. by the police before making his stcter'ncnt is not 2nough., The accused has to expl:c1.in i1m1 he ,,jas tortured so as to lead him into an untrue admission of guilt., In this ccse, there was no such explanation. 'I'here.fore'i I believe that the 5th accu.s0d m0de his statement voluntn.:rily to P.W 3. DGt., Corp. Samwel. In this statement, the 5th accused person does not implicate the lst?2nd, 6th,7th and 8th accused persons in the conspiracy to st8nl the motor vehicle in issue. Ee implic2.t2s the 3rd and 4th eccu.sed onlJr. As there is no evidence whatsoc:ver to prove tho.t the:: 1st 9 2nd~ •booo/6 6 6th, 7th and 8th 2ccuscd.. persons did psrticipo.te in th2 conspiracy to steol the motor vehicle in issue? the trial court should heve acquitted them on th~ 1st co'!Jllt C!t the clo,se of the prosecu~.;ion I s case on ground of no c2,se to ·answer instead of 8Cquittir;,g them a:fter the close o.f ti1e de:fence · case., It wr,s technic2.lly ivrcng 2lso i'or the trial Principal Residen:t; I'-10.gistr2te to pronounc.2 an 2cquittal about the 8th accused whose cci.se on tbis count had absted u;,on l1is dee.th which occur,:?d. b,2.fore judgment. With respect to the 3rd, 4th and 5th eccused. persons 9 I .find th8t tbe:r·e is evidence to prove that thGy co □mitted ths- o:f:fence cha- rged on the 1st count., This evidence is a coni'ession mode by th0 5th accused before PoW 3 Deto Corp., Se.rm,,rel in which he implicetes himself' c>.nd. the 3rd 2na. 4th a.cc used persons o Under So 33 (l) o:f the Evidence Act~ 1966 ~ e conf'essi.e;n m3d<=- by ctn eccused person may be taken into consiclere.tion 2g.'J.inst 2. co-Gccused if they nre t.:'ied. jo- intly for the of.fence or offences. arising out of the same transe- ction just as it happens to be the cose herG. But under sub-section (2) of Sa33 of the said hCt, a conviction or an accused person cannot be bnsed. solely one coni'ession by a co-e.ccusedo This means tllo.t r.?vidence of' o. confession by the 5tl1 c.ccused that the 3rd and 4th 2.ccused pers:ms pa:rticips.ted in th,2 •eooc,,,./7 7 conspir0cy to steDl the motor vehicle in issue has to be corrabo- rated before they can be convicted of this offencea I find that evidence o:f P .. Wa 3 C 1716 Det., Corp. Snrnwel that on interrogating the 6th eccused Grace Lsben Eolel'i she mentioned the 3rd 9 4th c:md 5th c:ccused persons to be the ones whom she so.1·r at ~trusha with tll.e motor vehicle in issue and informed him that from i:..rushs it was taken by her brothers in low Yornm and. Walter to Shinym'lge where it was rec::ive:red, coi~roboretes the confession by the 5th accused which implicates the 3rd 2nd 4th accused in the charge of conspiracy to ste:11 the motor vet:..icle in issueo I .find,theref'ore,tho.t the 3rd. 9 4th and 5th 2-ccused sre guilty as chG.rged on th2 1st cou21t and I substitute their ocqui ttal v.ri th a c-::uviction., I now go straight to the second counto I went through the €ntire lower court's rec,::,rd but I die_ not .find c.my evidence to co- nnect the 1st ~md 2nd accus2d on this count. In his staterr:ent exh .. PB which was wrongly marked 2s exbibit P7, the 5th 0ccused. did not confess to have stolen the motor vehicle in issue with the 1st or 2nd accused but he coni'essed to have done so with the 3rd and ~th accusedo I hold thei~efore that the 1st and 2nd accused could heve been acquitted. on this count at the close o:E the prosecution 1 s c.sse for having no case to answer instead of being acquitted at the close • • • o o o/8 8 of the defence cc,se. But 3s both of them did. jump b::,il 9 their sureties should haYe been cslleec1 to show cause 2.s to why they should not be penalized. ::-.ccording to their bail bcndso As I have already indic3ted when I was dealing with the charge on the first count, the st~tem2nt Rnde by the 5th accused b2fcre P.W.3 was voluntarily mad0 to the effect that the motor vehicle in issue w3s stol2n by him together ,.dth the 3rd c1nd 4-th accused fror:1 Kimara i.gip Petrol Station wh2r2 it hed been parked o.nd. thereufter took i t to Arusha and handed i t over to the 6th accused pending the return of her husband Frank Viaungu who w2.s in Dar es 8al28m ::::.nd who knew that i t had been stolen. Let us now look at the testimcny of PoW 3 o.nd P.W6 1.1hic.h I :fine-:. to be very inforrnati ve in this C-?.se. P-: Wo 3 Det.. CorpoS3rrfr,?l stated that ,,,rhen h2 interrog3.ted the 6th accused~ she inf:::;rmed hirJ th3.t ofter receiving the motor vehicle in issue 7 her brothers in la:w Yor2m and. Walter took i t to Shinyeng,3. .h.nd p.,··,J o 6 Deogratias Ks.holwe who is 0 resident of Kaha:nn st0ted that on 3rd Sept,2mber 9 1998, he bought o B.iace Min Bus Supper Ro,::if with I~eg. No. TZL 545 fr·om the 7th 2.ccused at Sb.so 3,000,000 2fter being infc:,rr,1':'d by the 8th accusec. that the 7th 2cccused who is his hrother hc,d 2 motor vehicle on saleo He soid that in October, 1998 the police followed t-~im .::ind told him th':tt the saic. motor vehicle 1,r.,e.s '-: st.:,len one upon which he informed them thct; i t h2cl been sold to him by the '7th an0. '' 9 8th accused at Shinyangao :!luring his defence, the 7th F.1.ecuse?d clc=timed th2.t he bought from Taimili Manyilizi at Shs. 5,000,000 end that its sale ~grae- m(mt wo.s prep[lrE-d by Mro Scmgc=,lc.vrn Ac1vocetc on 30tt:. ,Tul;y ~ l 998~ The trial J?rincipel Resident 1--iagistrr,te found that the r.iotor vehicle which was seized by the police from P.W 6 aft~r i t hsd been sold to him by the 7th accused d.ocs not belong to P. '.i-!. 1 Eirimina Aloyce Me.ssc:-.we.. ShE: orc12i~ed that it should· bG handed ov2r to th12 7th accused who in turn should hand. it ov2r to P.W. 6. cle wes tcmdered in evicL:mce as ezhibit P.6 2nd it is b0ing kept by the police., -1 will now dwell on the issue as to -1._;t1ethcr the s::iiJ. motor vehicle belongs to P .. Wol or not and wl12th,Jr tt.c 3rd~ 4th 5th and 7th accused's acquittel was justif•ie"d on .i..• • v11lS counto P. W 1 t0stifiGd to have bougbt c1 Toyoto. I-ii:=J.ce Supper Re-of with Registre.tion NoaTZM 2Lf-47 et Lurr:umba show r:)om t11rough Sclcm::::Di J'.hmec.1 Gunza who bought· i t from one Mohemec. .i:,_lio According to thQ record .from ti10 o.ffic,:; ·.Jf the Registrsr of Viator Vehicles i-,t1ich w.ss 5ive:n by ?. Wo 2 ?rc.ncis ~·mc1rcw Mos hi is thet Po vi 1 1 s stolcm Dotor vehicl•-= w,::is :::.:-egisto:red as TZM 2447 Tcyoto. Ei2ce in the name o:f lViohamed 1,.li o.f P oO .BOX 24172 D.sr es Se.loo.□., ~ccording to the 7th accused, the m~tor vehicle which was oooo/10 10 seized by the police from P.W. 6 after he had sold i t to him is with Registration Ne~ TZL 545 moke T;'.JyotEt Eisce, Viini Bus 9 \!bite in colour with Engine No. 2y-0460861 9 Chassis No. YE 50V 00525.93 9 1998 ! I Model end with R·2gistration C2rd No o C 00230236e motor vehicle with Registration IJo. TZL 545 ha.d not b2en tem~J<::;,r,2d. with. The chassis number hod be,2n cut L:>2ving a hol2 f'rom whc re 0 it wo.s cut -snd ~pl2-ced. on -::mother pl::1ce~ The reesons which ,vere givr='n by the trial Princip2l Resic.-2nt Magistrate in finding thnt this motor vehi6le did not belong to 1. The chr,ssis nuE1b2:r of Motor Vehicle with 2eg. No TZL ~,45 clif'.fcrs i~r.'Jm tt:12 cb.2.:s.sis nun1bGr o.f P\ril ts belonged to the 7th 2ccuse~ before he sold it to P.W 6 i.e. N0.TZL 545 ~iffers fro □ the Registration 3~ P.Wl' stclen motor vahicl2 is diesel. Tho one which was sold by the 7th accused to P.W. 6 is Patrol. 4. The engine csp3city of F.W.l's stolen Motor VehiclG differs from that of Motor Vehicle with Registration 5o The engine No of Motor Vehicle TZL 545 w2s not tem- pered vri th. 6. No reeson ad.v2ncec. to s\-:Cli.•J tb.c:tt the : ' - ' ~ "'k• of' Motor Ve:t1icle TZL 545 is the1.t of JVlotor Vehicle TZM 2447 .. 0. 0 0 ./11 11 In her findings, the learned trio.l P:rincipal Resident Magi- strate ignor2d the i'act that the chriSsis number of motor vc::c.icle with Registration N,:-;., TZL 545 was found cut from where it vrns ori- ginelly placed as testified by l'oW. 4 No. 0757 Det. Serg., Evarist and the fact that the key of IvJ.:1tor V2hicl0 with Registr.::-,tion No .. TZM' 24-47 which Po Wo 5 No. C 7560 Det .. C0rp .. Gotto.rd t•::>ok with him from Dar es Se.l.sam to Shinyenga cl.id start Motor· Vehicle with Regi-• stration No., TZL 545. I find triat the trial Principel Resident Mngistretc w.ss wrong to ignore the above mentioned fo.cts which are very cruciel to this case. These facts raise greRt doubt 0s to whether this motor ve- hicle exh. P6 is th~ one v,il1ich the 7th accused bought from T9.inuli Me.nyilizL This great doubt is based on two ,;rounds. First~ DWl r1.dvoco:te Semgalowe saw the chassis number o.f motor vel1icle with Registration No.TZL545 o.t its normal place without being cut from whore it is supposed to be when he prepered its sale agreement for the 7th ace- usedo Secondly, no different motor vehicles can be started with 2 si □ ile.r keyo In his testimony Do W b 1 stc,tecl tl1::-~t at the time o:f prep2...rin 6 the sole agr:·eement of motor vehicle Registr2ti::m No .. TZL 545, the 7th accu.sed told him that he was buying it .for his s2n Eliud Eliezeo This raises 2.nothsr gre:::it doubt as to whether the mot::;r vehicle he ., .. a ., e o .. ./l2 12 bought from Teimili Vianyilizi is the one which be sold. to P .. Wo 60 I .find. that had the tri.::tl l-'rincipo.l 3esiclent Mag:_stra.te a.dc7.- ressed herself to the evid.cnc2 be.fore her? she should hcnre .fc:-und as id.) that P.Wol's motor vehicle with Registration No. TZM 2447 exh. P6 was stolen from Kim2.ro. .ic1.gip :fetrol Station on 28th July, 1998 at ab.)ut 6000 p.mo, 2.nd that those ·who stole it are the 3rd, 4th end 5th accused, and that after stcsling it they drcve it .from Dar es So.l.:::am to 11.rusha wh•:?re it ·w-::ts le.ft in tb,2 hsncls of the 6th accused whose husbo.nd Frank Maungu whr::, knew .9bout this cle2l wss away in D:tr es Sa- lc::-e:m, and tl'lat from _'i.rushn the 6th eccusod' s brothers in Lqvr Yorarn end Wcl ter drove it to Shiny2ngo o.nr:1 left it with the '/tb sccused. who in turn s·::,lcl it to the resident :.)£' K8h.sna District no.mely r'o W. 6 b0:f'ore it wes seized by the police, 2t ,Sbin;yr:nga ·where i t had been stationed by P.W. 6 for transport business o.f passengers. Obviously, after s-tcG.ling this rnct-:or vehicle, they changed its registretion nurnbcn~ tc reed eny '.Jtb.er number. Tt1ey cut its chassis number leaving behind ,:c1 hole ::it its plccr::; which can be: seen •::::n i t upon its examination. ' . - so in Tbe;y Ci.lC.. to c l1c:mg2 its iclonti tzr o The engine:: number WDS n)t tempe::r,2d. with :for reasons best known to themselves. Knowing that this wes a stolen ri-:iotcr vehicle, the 7th 2.ccused put Registration Ho. '11ZL 54-5 fr:)I;, another m'.Jt:)r vehicle 1,-.rh.ich h2 • o. • • o o ~ /13 13 bought fror;i Taimili Manyilizi in order to change its id.entity .. It c2.n be remembered that the m0tor vehicle h-2 bought from Tainrili M2nyilizi had its chassis numbGr :J.t its pr,'.)per ploce but the ch:::i.ssis number of this motor vehicle is si:::en to 110.ve been cut f'rom where it is orQinarily supposed to be. Mro Gn K .. Mushumba :for the 7th accused submi Fted- ~hd.t ··,ns · •:t8e · 5th ClCi::usG"d st2:te-' ' ment wade to P .. ~J,. 3 wc:,s netracted i t cannot be used to convict 2-ny of the accused p2rs~ns wh8m it affects. That is tl1e 3rd, '-l-tt: e.rnl the 5th sccused. himself unless it is corr·::>boratede He said th2,t it is net certain whether the key t&ken fr-::im 1'QW 1 st2rt2j_ th•~ motor vehicle in issue .3nc"'c that there is 11'J evidence .fror.-, the Iilotor ve- hicle expert to prove that the chassis number cannot be pl2ced in other place other th~n where it is supposec to be,. As·I stated earlier 5 the 5th 2ccused 1 s statement to P.W~3 wes voluntarily nad.e .. The confession h2 made t:i ?oW 3 effected him and the 3rd. and. 4-th accusec. whom hG mentioned to have participo.ted. in stealing r'VJl' s motor vebicle,. i'ersonally'.I I have no re3.son to doubt the evidence o.f PoW5 Det.Corpn Gottard tl1at the key to.ken .from }'ow .. 1 in Der es Sslaam d:L.i start the 8otor vehicle in issue at •. I Shinyanga from wl1ere it ,ms recovered~ I m3intain that l -CS Ct18.- ssis number we.s cut in ord•2r to 8 hange its identity., In actual fact 1 th2 evid12n•2 of a confession by the 5tl-:_ accused is corrobora.ted by the evidence of roW 51, Basing on the 14 totality o:f this evic.ence, I de- f'ind thot the 3rd, 4-th ::-,.nd. 5th o.ccused are guil t;y c3.S ch.'.:,r5•2d. on the second. counto I vmuld 9 tbere- .f-:)re, substitute their 2coui ttal with '" conviction on the snid count., I would think th:1.t the 6th nccusecl Gr2.ce Laban Molel wif'e o.f Frank Maungu is a cGre victim of circuI:Jstances hGving been handed ove:r this motor vehiele of which she perhe.ps knew nothing exc,2pt her [· i husband Fran}: f·faungu~ Theref0r0 'l I v.;ill not interfere· with her .:,.cg- uittal .. The 7th accused should 11.e.ve been found guilty o:f receiving stolen property c/s 311 of the ~enal Codeo The 2vailable circumsta- nces strongly show that when he received this motor vehicle from Yorarr. and. W0.lter, he must he,ve known that i t ,·:as stc;len and i.f he did not know that i t was stolen, he wos informed by them that it is e stolen motor vehicle but he did not take 2n~f steps to report the mat.ter -to the Policeo I would therefore find 11im guilty o.f receiving stolen property nnd I convict him thereof',, ..\s the 8tti accused is de,?..d.. 1 I will not pass 2.n;y verdict on ni □ because when aI1 accused di_es the cose abo.teso Finally, I order that the motor vehicle in issue exhaP6 which is under Police custody shcmld. irnnedintely be .-iJ..:3...'1dgj,,:.:aver' t:), P)Wl Hirirnina Ao Mass~.weo Otherwise, I now rer:1i t the case to the Dist:rict Court o.f Il:::la under So382(1) (a) (i) of the Criminal xTocedure 1 • c, 0 0 C O O ; 15 .ii.ct~ 1985 for passing Sentence on tbe 3rc., 4-th snd. 5th 0ccus,ccl on the 1st .o.ncl 2nd c::mnts as well "s f'c,r pr,ssing sent,2nee on t-he 7th accused fer the offence ~f receiving stcl2n property c/s 311 (1) o:f the ?enal Code. 9/7/2003 Delivered in Court at DEtr 2s SF,l-c:,arn ~n th2 lJresence o:f Miss Msabila, Sts.te .A.t-!:;Jrney 2.ncl Mr .. G. Ko Mushumba, ~-1.dvocate this 9th d.;:;;y of July~ 2003,. 9/7/2003 n-r. I · ~ I JD.