jonathan james palangyo vs republic 2014 tzhc 2146 28 july 2014

IN THE HIGH COURT OF TANZANIA AT ARUSHA CRIMINAL APPEAL NO 35 OF 2013 (Originating from Arusha District Court Criminal Case No 427 of 2009) JONATHAN JAMES PALANGYO................................. APPELLANT VERSUS THE REPUBLIC.................................................... RESPONDENT JUDGMENT MWAIMU, J. This is an appeal against the judgment of the District Court of Arusha. The appellant Jonathan s/o James @ Max @ Yasin s/o Rajabu@ Pallangyo was charged along with five others with four different counts of varied offences under the Penal Code. In the first count they were charged with the offence of Conspiracy to commit an offence contrary to section 384; in the second count they faced the offence of stealing contrary to section 265; in the second count with malicious damage to property contrary to section 326 and in the fourth count the first accused was charged with the offence of Neglect to prevent an offence contrary to section 383 of the Penal Code. The trial resident magistrate acquitted all the accused persons except the appellant who was convicted with the offences charged under the first, second and third counts. He was sentenced to serve seven years jail term for the three respective counts which were ordered to run concurrently. The appellant was aggrieved by the decision and therefore preferred this appeal raising five grounds of appeal that is: 1. That the issue of identification was not dealt with at length by the Resident Magistrate. 2. That the trial Court did not properly assess the credibility and wrongly acted on the evidence of DW1, PW1 and PW4. 3. That the trial court erred in law and in fact in holding that the prosecution evidence proved the case beyond reasonable doubt. 4. That it was not correct in law to prefer the conspiracy stealing and malicious damage to property counts in the same charge. 5. That the prosecution case was highly improbable. Before attending the grounds of appeal, I feel obliged to narrate the facts which lead to the charged offences. The complainant one Rev. Sylvester Kahakwa who lived at Makumira, owned a motor vehicle Toyota hiace make with registration No T 645 ABC. It is said that on the 14th day of June, 2009 at around 06.45 hours the second accused, the present appellant went to the house of the complainant to negotiate a car hire agreement at the rate of Tzs. 55,000/= a day on behalf of a person known as Joseph so as to enable the said Joseph to transfer tourists from Tengeru to the Kilimanjaro International Airport. The agreement was meant for two weeks. The complainant handed over the car to first accused one Denis s/o Hosea Mmari who left his home in the company of the appellant. It is said that the first accused went to a place for refreshment and handed the switch of the motor vehicle to the appellant. Later he traced the appellant but could not locate him. The appellant who disappeared with the motor vehicle was hunted until he was arrested. A burnt scrapper of the motor vehicle was found at Mererani. The accused persons including the appellant were arrested at different places and charged accordingly. In his submission on ground 1 the appellant contended that the trial court did not properly evaluate the evidence on record. He argued that at the trial there was no single eye witness who adduced evidence that he saw him stealing the motor vehicle the subject matter of the case. He said, according to the evidence of PW4 is that on the fateful day he met with Max Rajabu and not him. Also he said that the witness did not give the description of the alleged thief. Submitting on ground two the appellant argued that in his testimony PW1 said that on the eventful day his child told him that Max was knocking the door but the child was not called to testify that he went to the house of the complainant. Also he contended that PW1 is living in a fenced compound of Makumira University, hoever no watchman was called to testify that he passed at the gate. On ground three the appellant argued that the prosecution did not prove its case beyond reasonable doubt. He said according to the evidence of PW1 and PW4 is that it was DW1 Denis who was handed over the key of the motor vehicle but the prosecution did not adduce evidence to show that he was handed over the key by DW1. On ground four the appellant argued that the offences were compounded into one charge as the offence of conspiracy was put together with the offence of stealing and none of them was proved against him. I his additional grounds the appellant claimed that when he was arrested on the 6th day of July, 2009, he stayed in remand for nine days until 15th July when he was charged. He said that was in breach of the provisions of section 32 (1) the Criminal Procedure Act. Mr. Kombe learned State Attorney supported the conviction and sentence. He argued that the appellant was properly identified because the evidence of PW1, PW4 and DW1 shows that the appellant was at the house of PW1, the complainant and that he was the person who went to the house requesting to hire PWl's car and that when DW1 was given the key for the car the appellant was present and that it was the appellant who then took the key and disappeared with the car until it was found burnt. As regards to the branch on the application of section 32 (1) of the Criminal Procedure Act, Mr. Kombe ruled out that the appellant misconceived its application as the evidence of PW5 showed that the appellant cooperated and promised to trace his colleagues and that his delay in being taken to the court was caused by his being sick. I have given due consideration the submissions made by both parties and the court record and feel that the nature of the appeal mostly hinges on ground 3 which is on the evidence gathered during trial if it was sufficient to prove the charged offences beyond reasonable doubt. I must say from the very outset that the trial court convicted the appellant basing on the evidence of PW1, PW4, DW1, PW5 and PW6. The evidence of PW1 and PW4 showed that the appellant known by the name of Max went to their home to hire a motor vehicle. He left the home of PW1 and PW4 in the company of DW1. None of the prosecution witnesses saw the appellant stealing and burning the car. It was DW1, his co accused who said that he handed over the key for the car to the appellant who then disappeared with it until when it was found at Mererani burnt. The evidence of a co accused requires corroboration. This was the position held in the case of Abdon Shao a n d 2 O th e rs V ersus The R e p u b lic Criminal Appeal No. 40 & 41 of 2006. The Court said "But the evidence of a co-accused is on the same footing as that of an accomplice; it must be treated with caution and as a matter of practice would require corroboration." Also in the case of A m an yisye M w andiga a n d Three O thers versu s R e p u b lic [1976] TLR 14 the Court held: "The evidence of an accomplice against the other accused persons requires corroboration as a matter of practice before being acted upon". In the instant case I have found no independent evidence adduced by the prosecution witnesses which may have corroborated the evidence of DW1 who was entrusted by PW4 to drive the car with a warning that he should not give the key to anybody else. The fact that DW1 has been acquitted; there was no justification for the appellant to be convicted. DW1 is the only person who purported that he gave the appellant the key for the stolen motor vehicle and disappeared with it until the said car was found burnt. He had a reason to shift liability to his co accused. His evidence then could not be used to convict his co accused as it lacked corroboration. Another piece of evidence which incriminated the appellant was the cautioned statement that he is alleged to have made before PW5. The trial court refrained from admitting it. In that respect there stood no confession. Another weakness on the prosecution case is on the identification of the alleged stolen motor vehicle. According to the evidence of PW4 the burnt car had no chassis number. He said when they saw the wreckage in the first time, the chassis number was there but when they went to see it for the second time it was not there. The only special mark he explained was a refill on the back side of the car. However, there was confusion on where that special mark was located. It is my opinion that the identification of the alleged stolen car was not water tight as the description was not cogent enough to establish that the wreckage was for the stolen car. Taking the evidence as a whole I agree with the appellant that the evidence on record did not prove his guilty beyond reasonable doubt and I hereby allow the appeal by quashing the conviction and setting aside the sentence imposed against the appellant. The appellant should be released from custody unless otherwise lawfully withheld for another lawful cause. SGD: M. P. M. Mwaimu JUDGE 17/ 07/2014 Judgment delivered on this 17th day of July, 2014 in the presence of both parties. SGD: M. P. M. Mwaimu JUDGE 17/ 07/2014 8