20110805 TZHC Dodoma

IN THE HIGH OCURT OF TANZANIA

AT DODOMA (DC) CRIMINAL APPEAL NO. 19 OF 2010 (Originating from Singida District Court Criminal Case NO. 67 of 2009) IDD RAMADHANI AND 3 OTHERS .................... APPELLANTS

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

JUDGMENT 25/5/2011 & 05/8/2011. KWARIKO, J: The appellants herein and twelve (12) others were arraigned before the trial court with two counts of Office breaking contrary to section 296 (1) which ought to have been section 296 (a) and Theft contrary to section 265 both of the Penal Code Cap. 16 Vol. 1 of the Laws, Revised Edition 2002. It was alleged by the prosecution that on 5/12/2008 at about 01.00 hours at Mitunduruni area within the ·municipality and Region of Singida the sixteen had jointly and together broke and entered the library office of one RAPHAEL S/0 MUSH! with intent to commit an offence of Theft. That after they had broken and entered they stole one computer make IBM valued at Tshs. 700,000/=,. 250 video cassettes valued at Tshs. 1,250,000/=, one Radio cassette make Panasonic 4 band valued at Tshs. 150,000/=, 100 CDS valued at Tshs. 400,000/= and one video deck make Hitachi valued at Tshs. 50,000/= al! total valued at 2,550,000/= the property of RAPHAEL S/O MUSHI. The appellants and others denied the charge hence their trial. The evidence at the trial revea; that at about 07. 30 hours on 5/12/2008 the complainant RAPHAEL S/O MUSHI, (PWl) received information that his library office had been broken. He went there and found the items mentioned above stolen. PW1 reported the matter to the police where investigation started. On 7/12/2008 PWl was summoned by No. D

5992 D/SSgt SENGE, (PW4) to go to Karakana Street at the then 13th accused's home. He complied and there he found among ou-:er things some of his stolen items which are 56 VHS and 19 voe 'f1hich he identified by special mark '42' he had inscribed on thern. The 13 th accused SYLIVESTER MKUMBO said that the house belonged to the then 14th accused person RICHARD CHARLES who was not there. A proper search was conducted in the presence of a ten cells leader HAMISI S/O JAMBI, (PW6) by PW4 and PV✓ 7 No. C. 4524 DSgt Diary. A record of search was prepared and duly signed by witnesses and the 2 same was admitted in court as exhibit P3 while PWl's property was admitted in court as exhibits Pl and P2 respectively. When the 14th accused person RICHARD S/O CHARLES was arrested on 10/12/2008 he confessed that the appellants herein and other accused namely YUSUF MOHAMED, RICHARD LUCAS, GODFREY LUCAS, and ELFAS MARCO had visited him on 05/12/2008 at 5.00 am where they had in possession of exhibits Pl, P2 and· other electronic items for sale. That, since he had bought other items from them in the past, he agreed to buy some of the brought items as he had a shop and video show business. Therefore, he bought some of the items which were found in his home on 7/12/2008. The 14th accused person's Caution Statement was written and tendered in court as exhibit P4 while his Extra Judicial Statement in

the like effect was received as exhibit PS. RICHARD CHARLES'S evidence in his defence was a replica of Exhibits P4 and PS. The trial court ruled out that the 2 nd , 3 rd , 4 th , 5th , 6 th and 15th accused persons had no case to answer and were accordingly acquitted interms of section 230 of the Criminal Procedure Act, 1985 Cap. L20 Revised Edition 2002. The appellants herein and others gave their defence where they categorically denied the allegations where each accounted what they were doing at the 3 material day and the date the alleged stolen properties were found. At the end of the trial the appellants herein were convicted as charged and sentenced to seven (7) years and five (5) years imprisonment for. the 1st and 2nd counts respectively and the sentences were ordered to run concurrently. The l 5 \9 th , 10th , 11th and 13 th accused persons were found not guilty and were acquitted accordingly while the 14th accused person RICHARD CHARLES was found guilty of the offence of Being in Possession of Goods Suspected of Being Stolen or Unlawfully Acquired contrary to section 312 of the Penal Code Cap. 16 Revised Edition 2002 and was sentenced to one (1) year imprisonment. Having been dissatisfied with the trial court's decision the appellants filed this appeal. In their joint memorandum of appeal the appellants rais·ed seven grounds of appeal where they essentially complain

that their case was not proved beyond reasonable doubts. When the appeal came before the court for hearing, the appellant adopted their grounds of appeal and had nothing more to add. The respondent Republic was represented by Mr. Malimi learned State Attorney who opposed this appeal. Mr Malimi was of the view that there was no issue for identification of the 4 appellants at the scene before the trial court since the appellants were convicted on the basis of the co-accused's evidence. Thus, Mr. Malimi strongly argued that the evidence against the appellants though from the co-accused had proved the case beyond doubts as rightly provided under section 33 of the Evidence Act. Also, the stolen property was satisfactorily identified by the complainant. In the rejoinder there of the appellants complained that the then 14th accused was responsible for the theft since the property was found in his possession; And that he did not prove that the appellants sold him the property. That, there ought to have been a witness to the alleged sale transaction. On the part of this court it is agreed with the learned State Attorney that identification of the appellants at the scene was not an issue before the trial court. This is so because the only evidence against the appellants is their co-accused's confession and his evidence before the court that the appellants sold him the stolen property.

Now, the issue to be decided here is whether the evidence of co-accused RICHARD CHARLES had proved the case against the appellants beyond reasonable doubts. This court has no doubts that the stolen property exhibits Pl and P2 was satisfactorily· identified by the complainant PW1 due s to its special mark '42' inscribed on them. What the court is asking itself is whether the appellants sold the property to the then 14th accused person so that a doctrine of recent possession could be applied in that respect. The trial court found that the evidence of the co-accused was watertight and it had warned itself on its dangers before it used the same to convict the appellants. This court has gone through the original record and found that the 14th acucsed's Caution Statement and Extra Judicial Statement, exhibit P4 and PS respectively were photocopies which were certified true copies of the original. However, the trial court's proceedings do not show why the court received certified copies of the original copies. There was no any explanation from the prosecution which was believed by the trial court as to why the original copies of these statements could not be tendered in evidence. Thus, these exhibits were not good evidence against the appellants and are hereby expunged from the record. Now, the only evidence against the appellants is their co- accused's evidence in court. The law

under Section 142 of the Evidence Act Cap. 6 Revised Edition 2002 says; "An accomplice shall be a competent witness against an accused person; and 6 conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice" And in the case of ROZER V R [1971] H.C.D No. 42 Biron, l (as he then was) had this to say; "There is no rule of law that evidence of an accomplice requires corroboration, but rather the contrary as expressly laid down in section 142 of the Evidence Act, 1967............................................ It is however a salutary rule of practice to require corroboration of the evidence of an accomplice" Therefore, although the law does not say that it is necessary for an evidence of co-accused to require corroboration and although the trial court warned itself on its dangers; but in this case corroboration was wanting. The evidence of the ten 14th accused shows that the appellants and others knocked at his door at 5.00 am and when he opened the door he found them with various properties. Any other reasonable and innocent man must have not accepted anything offered for sale at that awkward hour of the day. The then 14th accused must have known that the 7 properties were stolen items and then he shouldn't have accepted the same for any transaction. This is where a third party was necessary in the alleged sale transaction if at all

the said RICHARD CHARLES was a 'bona file' buyer. That is why the law says that it is unsafe to uphold a conviction based on the uncorroborated evidence of a co-accused (see PASCAL KITIGWA VR [1994] R.R 65). Since the alleged sale transaction was doubtful the evidence of the appellants' co-accused needed corroboration in order for the same to be used. to convict. Otherwise, the co-accused was the one who knew how he came about the stolen properties and actually he was the one to be charged with breaking the office and stealing. This court wonders how the police believed his story and more so because he was found in possession of many stolen properties from different complainants including a police officer CPL GABRIEL as PW7 had explained. RICHARD CHARLES was either himself a notorious thief or he was a master minder of theft incidents in town; thus the police ought to have dug deeper to unveil his true colour. In the event thereof, I find that the case against the appellants was not proved beyond reasonable doubts. I therefore allow their appeal, quash the respective convictions and set aside the sentence in their respect. 8 • ' It is hereby ordered that the appellants be released from prison unless otherwise lawfully held. It is so held . . .-----1•1! . ..- <-~-----·-·- --------·-·::::::> (M. A. K RIKO)

JUDGE 05/8/2011 Court:- Right ' of Appeal fu~~~18i~:~~~ ~ . -- ( M. A. . ARIKO)

JUDGE 05/8/2011

AT DODOMA 05/8/2011 Appellants: All present. For Respondent: Mr Malimi State Attorney. C/c: Ms Komba. ~~~ -----•····---,:;,,.-, . ! .T . ;.,,- . -·----...... .' '.f-~t~. . ··!,t.-r\T WARIKO) 1,:. ~;,\Y~ . J;:\-· --;.._J(:i\-.:? ' .

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