Hennen juma

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (BUKOBA SUB-REGISTRY)

AT BUKO BA CRIMINAL APPEAL N0.80 OF 2024 (Originating from Criminal Case No. 80 of2023, District Court of Muieba) HELLEN JUMA.,......... ....... .................... ......... ,1st APPELLANT AGNES APORINARY........... . .......... ........2nd APPELLANT

VERSUS THE REPUBLIC.......... ................. .......................... . ..............RESPONDENT

JUDGMENT 24.07.2024 & 29.07.2024 KIWONDE, J.: The appellants, Hellen Juma and Agnes Aporinary, being aggrieved by the decision of the trial court in Criminal Case No. 80 of 2023 (D. P. Nyamkerya, PRM), appealed to this court based on seven (7) grounds of appea! namely: 1. That the trial court erred in law and facts by convicting the appellants based on weak evidence of the respondent who failed to prove the case beyond reasonable doubts as required by law.

2. That the trial court erred both in law and facts to convict the appellants relying on the caution statement of the then first accused which were extracted by torture, hence, bad in law. i 3. That the trial court erred both in law and facts to convict the appellants on evidence which itself required corroboration.

4. That the trial court erred both in law and in facts to convict the appellants while there was failure to prove essential ingredients of the offence.

5. That the trial court erred both in law and fact to convict the appellants without any credible and reliable exhibits.

6. That the trial court erred both in law and fact to convict and sentence the appellants by relying on the evidence of improper person (PW4) who was directed by police, one Alex, to search the second accused.

7. That the trial court erred both in law and facts to disregard the appellants' defence. The appellants asked this court to allow this appeal, quash the judgment of the trial court, acquit them and any other relief as it deems fit and just to grant. The background of the case which gave rise to this appeal is that the appellants, before the trial court were charged with two counts both involving the offence of child stealing contrary to section 169(l)(a) of the Penal Code, [Cap 16 R. E 2022]. It was alleged by the prosecution that the appellants, on 16th July 2023 at Kiziramugaya Village within Muleba District in Kagera Region, with intent to deprive a parent who was in the lawful custody of the children, fraudulently z took Kulwa Fadhili and Doto Fadhili, the two weeks old infants from their mother one Severin a Fadhili. When the appellants were arraigned before the District Court of Muleba, they distanced themselves from criminal liability by pleading not guilty. To prove the case, the prosecution paraded a total of four (4) witnesses and the appellants defended themselves. After a full trial, they were convicted and sentenced each to serve imprisonment in jail for a term of five (5) years for each count and the sentence was ordered to run concurrently. The appellants were dissatisfied with the decision, hence, this appeal. During hearing of the appeal, the appellants were

unrepresented while, the respondent was represented by Miss Gloria Rugeye, learned State Attorney. The first appellant prayed this court to adopt her grounds of appeal in lieu of oral submissions. The second appellant argued the appeal, though she just ended up mentioning the grounds of appeal without elaborating them. She could not expound them. In reply, the learned State Attorney for the respondent Republic readily supported the appeal on reason that the prosecution case was not proved beyond reasonable doubts. In the first place, the learned State Attorney submitted that the conviction was based on the confession of the first appellant while there was improper admission of the cautioned statement. She argued that the document was not cleared for admission and its contents were not read in court after admission. She further said when the first appellant said that she was illiterate, the court did not explain to her if she was objecting or 3 not the admissibility of the cautioned statement. The State Attorney asked this court to expunge from the records the said document citing for reference the case of Robinson Mwanjisi and 3 others V. R [2003] T.L. R 218. Besides that, the State Attorney said the evidence of PW2 was not credible as it was contradictory. At first, she said she had never seen the appellants before the fateful date but in cross-examination by the second

appellant, she said they used to go there several times and they gave her gift when she gave birth to twins. Apart from that, the State Attorney submitted that there are material witnesses including one Samiati who told PW2 that the appellants threw the children on the way and that they had intention to steal the children but they Were not called to testify. The State Attorney asked the appeal to be allowed. There were no rejoinder submissions from the appellants. From the petition of appeal, trial court records and the oral submissions, the main issue for determination is whether this appeal has merits or otherwise. In considering the first ground of appeal, it is conceded and rightly argued by the State Attorney for the respondent Republic that the prosecution case was not proved beyond reasonable doubts. It is well settled that the burden of proving the charge in criminal cases lies on the prosecution. In Gaius Kitaya Versus Republic, Criminal Appeal No.196 of 2015, [2016] TZCA 301 (15th April 2016) TanzLii, it was stated that it is a cardinal legal principle that in criminal cases, the prosecution is duty bound to prove the charge laid down 4 against the accused person and the standard of proof is beyond reasonable doubts. In order to establish the offence of child stealing under section 169 (l)(a) of the Penal Code, [Cap 16 R. E 2022] which the appellants were charged

with, the prosecution had a duty to prove that the appellants, with intent to deprive the parent or guardian or any other person who has the lawful custody or care or is in charge of the children, forcibly or fraudulently, took or enticed away or detained those children below the age of 18 years and in this case, that the appellants had a common intention to commit the offence. According to the records, the conviction of the first appellant was founded on her confession. But such evidence was illegally admitted. The witness, PW1 identified the document (first appellant's cautioned statements) by saying they bore his hand writing, signature and his police force number. However, the proceedings of the trial court show that the accused (not clearly indicated who was that) said she did not know how to read. This suggests that the said accused did not know what to be done. It was for the court to explain to the accused if she objected or not the admissibility of the document. Yet, the court admitted the document. Besides that, it is not shown if the second appellant/ accused was availed right to comment on the admissibility or otherwise of the evidence since the cautioned statements of her co-accused may be implicating her as well. At the trial, the first appellant said she decided to mention the second appellant as her accomplice just to rescue herself because she was beaten after

her arrest. In 5 law, before the document sought to be introduced in evidence is admitted as exhibit, the accused must be availed with an opportunity to state if he/she has any objection. In Sylvester Fulgence and another Versus Republic, Criminal Appeal No.507 of 2016, [2019] TZCA 476 (11th December 2019) TanzLii and Twaha Ali and 5 others Versus Republic, Criminal Appeal No. 78 of 2004 (unreported), it was emphasized that the accused person must be given chance to comment before the exhibit is admitted as evidence. In this appeal, the second appellant was deprived of her right to be heard. Leave that alone, after admission of the cautioned statements, (exhibit Pl) the contents of the document were not read to the appellants. It is now settled legal principle that if the document is admitted in evidence, the contents have to be read aloud to the accused person (s) as it was a position in the cited case of Robinson Mwanjisi and 3 others V. R [2003] T.L. R 218 and Awadhi Gaitani @ Mboma Versus Republic, Criminal Appeal No. 288 Of 2017 [2020] TZCA 205 (5th May 2020) TanzLii. In this appeal, the trial court admitted the cautioned statements of the first appellant as exhibit Pl and then it indicated that it is marked as read over. The proceedings have to speak by themselves. They must show that the contents of the admitted document are read aloud in court and show the person

who read them. For these anomalies, this piece of evidence was not worthy to form a basis of conviction of the first appellant. For the reasons stated, exhibit Pl is hereby expunged from the court records. 6 Having expunged from the records the cautioned statements of the first appellant, there remains oral evidence of the prosecution witnesses. The sub­ issue here is whether it was sufficient to ground conviction of the appellants. It is my firm position that such evidence was insufficient to prove the prosecution case beyond reasonable doubts. This is because PW3 was just called and told that the appellants had stolen the children, This is hearsay evidence which is generally inadmissible as it does not fall under the exceptions. Also, PW3 said at the police station, it is the police officer in-charge of the police station who interrogated the first appellant and: she confessed. Unfortunately, PW3 did not state at the trial if he heard the first appellant confessing or was informed by the interrogating police officer. Therefore, his evidence is of no help. The evidence of PW4 was about search of the second appellant, but such evidence does not connect the appellant with the offence, thus, this piece of evidence too does not implicate the appellants in relation to the offence they stood charged with. Furthermore, there are material witnesses who were mentioned but they were not

called to testify in court without giving reasons for failure to do so. The witness, PW2 said her children, Baraka and Mariam told her that the first appellant had left with the children. Also, this witness said there were neighbours like Kulwa and Samiati who said they found the children thrown on the way. All of these witnesses were not summoned to give their evidence in court. In Aziz Abdallah V. R [1991] T. L. R 71, it was held /7?te/-a//athat 7 "Where material witnesses acquainted with the facts of the case and are mentioned thereto but are not brought to court to testify without assigning any reason for such failure, the court is entitled to make adverse inference against the prosecution." In this case, it was not stated why those witnesses were not brought to court to give their evidence. In defence, the first appellant said she ran away when she saw a dog as she was afraid of it and that she did not throw the children down, but she stood with them . So, had the trial Magistrate properly evaluated and considered this defence, he would not have found the prosecution case proved at the required standard. Apart from that, the trial Magistrate in convicting the second appellant said the act of the second appellant giving TZS 5, 000/— to the husband of PW2 meant that she was creating environment for the first appellant to steal the children. But.no prosecution witness gave

evidence to that effect. The witness, PW2 said the second appellant gave her husband such money for soup when he was going for a walk. The same witness said the second appellant gave her shoes as congratulation for giving birth to children and used to go there several times. It can be depicted from this that it was common for the second appellant to give them things. It is the law that in finding guilt or innocence of the accused, the trial Magistrate has to confine himself to the available evidence on record. To add to this, there was no evidence to show common intention of the appellants to commit the offence. 8 For that matter, it is evident that the prosecution case was not proved beyond reasonable doubts. The first ground of appeal has merits and it is allowed. This alone suffices to dispose of the entire appeal; thus, I find no need of expounding the rest of the grounds of appeal. Consequently, the appeal is allowed. The judgment of the trial court is quashed, the order of conviction and sentence meted out on the appellants are set aside. It is hereby ordered that the appellants be immediately released from prison unless they are held for other lawful cause. Dated at Bukoba this 29th July 2024 w. F. H. KIWONDE

JUDGE 29.07.2024 Judgment delivered in chamber under the seal of this court in the presence of Miss Gloria Rugeye, State Attorney for the respondent Republic, the appellants in person and Grace (RMA) this 29th July 2024 and the right of further appeal 9