emanuel so mkombola vs republic 2017 tzhc 2168 16 august 2017

AT DODOMA ( APPELLATE JURISDICTION) DC. CRIMINAL APPEAL NO. 137 OF 2016 (ORIGINAL CRIMINAL CASE NO. 38 OF 2016 OF THE DISTRICT COURT OF MANYONI AT MANYONI EMANUEL S/OMKOMBOLA ................................................... APPELLANT VERSUS THE REPUBLIC........................................................................ RESPONDENT JUDGMENT 19/07/2017 & 16/08/2017 H. H. KALOMBOLAJ.: Appellant EMANUEL S/O MKOMBOLA being aggrieved with the decision of the trial Court appeals to this Court against the sentence and conviction with the following grounds:- 1. That I did not plead guilt before the Court, against stealing rather I admitted to buy stolen goods. That the learned trial magistrate erred by convicting me basing on very weak evidence due to the fact that, on my defence side, I told the Court that the stolen things, I bought from one person who called Jimy Alen. He said he bought long time ago and he doesn’t know where he kept the receipt, so the burden of arresting Mr. Jimy Alen was under the Court or Prosecution side. 2. That your honor Judge, the learned trial magistrate erred to accept the evidence of prosecution side, while no any person who proved beyond reasonable doubt that he/she saw me going or coming or breaking into that house. 3. That even the evidence o fP W l. Godfrey Andrea told the Court that he gets call from one person who informed that those things I bought were stolen properties. 4. That your honor Judge, I pray to your honourable Court the linient sentence it is true that the said stolen property I bought but, didn’t know. When the appeal came up for hearing, appellant submitted that he did not commit the offence. Ms Mwakyusa State Attorney supported the conviction except the sentence which was imposed to the appellant as follows; That among the three counts which faced the appellant it is only the 3rd count which was proved, the 1st and 2nd counts were not proved. It was only proved that the appellant was found having in his possession the stolen properties. That the owner of the stolen properties by name of Godfrey Andrea ( PVV1) identified his properties. PW3 Selemani Juma, appellant co-tenant witnessed the search in appellant room which was conducted by A/Inspector Elibariki ( PW2). That these witnesses proved appellant was found in possession of the stolen properties. PW2 prepared search report and the properties were tendered as exhibits. It is submitted the appellant did not deny to have been found with the properties but claimed one Jimy Allen sold to him the same for Tshs. 150,000/=. He only advanced Tshs. 70,000/= for the same. It is further submitted it is not true that the trial Court did not discuss appellant defence, the said defence was discussed but it was found it had no weight as the appellant failed to take before the Court written document to prove he bought the said properties. It was proved the appellant knew the properties were stolen one that is why he bought them at low price. In regard to the sentence imposed, it is their submission the trial magistrate who is merely a Resident Magistrate did not have jurisdiction to impose to the appellant the said sentence as per Section 170 (2) (a) (ii) of the Criminal Procedure Act she ought to have forwarded the record to the High Court for confirmation by Judge. In the circumstance the sentence is not justifiable, they pray the sentence be reviewed. It is agreed by this Court as correctly argued by respondent/Republic that the 1st and 2nd Counts were not proved as none of the prosecution witness testified to have seen the appellant breaking into and steal the properties from complainants home. What is found in prosecution evidence is as it was said by PVV2 and PW3 that the alleged stolen properties were revealed from appellants room out of the search which was conducted by PW2. While before the trial Court PW1 (the complainant) tendered in Court as exhibit PI a receipt in respect of the Television set to prove he bought the same. PW2 who conducted search in appellants room tendered as exhibits Pll the search order and exhibits Pill collectively the properties said to have been recovered from appellant’s room which are one Tv Hitachi "18” one sub­ woofer, 3 speakers, one deck, 3 flashes and one voice wire. In view of the record of the trial Court, I noted that identification of the said properties by PW1 who is said to be the owner was never conducted. PW1 ought to have been called to identify the properties in order to convince the Court that the same belonged to him and not the appellant. PW1 ought to have done so after describing them by giving special marks before tendering them as exhibits in Court as it was held by the Court of Appeal in Criminal Appeal No. 264/2015, (HC-Dodoma) unreported, HASSAN SAID (Appellant) VRS THE REPUBLIC, that:- “ Concerning the identification of the stolen goods, it is now settled that a detailed description by giving special marks of the stolen items has to be made before such exhibits are tendered in Court in order to avoid doubts on the correctness of the allegedly stolen items". But the situation is worse in the instant case because the complainant was neither called upon to describe the items nor to tender them as exhibits being owner and in a better position to do so. Instead PW2 tendered them as exhibits. This scenario had left Court with questions because it cannot be ascertained whether the said items belong to the complainant. How did the trial court got the proof? “ Is it because it was said by PW2 and PW3 that the items were recovered from appellant’s room? is that evidence enough to convince this Court find the appellant committed the 3rd offence? It is the finding of this Court that the evidence at hand leaves a lot to be desired. It was the duty of prosecution to clear the doubts, to prove its co.se beyond all reasonable doubts and not otherwise. It was wrong for the trial Court to hold that since appellant could not bring any proof that he bought the items and since that he did buy them at Low price that he knew the same were stolen items. I find this was not a fair measurement because it was the duty of prosecution to prove beyond ail reasonable doubt that the appellant knew the items were stolen. Otherwise it amounts to saying that the appellant had duty to prove his innocence. It is provided by penai Code under the provisions of S.311 that “ Any person who receives or retains any chattel, money, valuable security or other property whatsoever, knowing or havingreason to believe it to have been stolen, extorted, wrongfully or unlawfully taken, obtained, converted or disposed of, is guilty of an offence and is liable to imprisonment for ten years9’. Going by the above cited provision of Law, W is crucial that knowledge must be proved in which case prosecution failed to discharge this requirement. Following the above discussion which show prosecution failed to prove that the items which were recovered from appellant belonged to the complainant (PW l)th is Court finds the appellant did not commit the 3rd count, he was wrongly found guilty, convicted and sentenced. In that premises the appeal is allowed, the conviction and sentence are quashed and I order the immediate release of the appellant from prison unless otherwise Lawfully held. It is ordered. UL (H. H. KALOMBOLA) JUDGE 16/08/2017 DATE: 16/08/2017 Coram: Hon. Madam H.H.KalombolaJ Appellant:- Present. Respondent:- Ms. Luwongo State Attorney. C/c: F. Nkamirwa. MS LUWONGO STATE ATTORNEY. We are ready to accept the Judgment. COURT Judgment read today 16/08/2017 in the presence of the Appellant and Ms. Luwongo the State Attorney for the Respondent/Republic. In X (H. H. KALOftABOLA) JUDGE 'i! A f 16/03/2017 COURT Right of Appeal explained. (H, H. KALOMBOLA) JUDGE \\ 16/08/2017