19950913 TZCA Mwanza

..... IN THE HIGH COURT OF TANZANIA AT MWANZA APPELLA'lE JURISDICTION (Mwanza Registry) HIGH COURT CRIMINAL APPEAL NO. 294 OF 1993 --- Original Criminal Case No. 155 of 1992 of the District Court of Sengerema District at Sengerema ~ Before J. K. Mzonge, Esq., District Magistrate APPELLANTS (Original Accuseds) versus: THE RPUBLIC a e . 0 0 e e • <I • e e • 0 e e O O • e e e O e O e Oe e • e e e ~e O • O e O O' 0 RESPOND~ . . ( Original. Prosec~~ The two appeal cases before me are in respect of H.C. Criminal · and relating to . Appeal No. 114/94.lH•C• Criminal Appeal No. 294/1993, both t_· the Original Case _No. 155/J.992 in the District Court of Sengerema District, at Sengerema and the appellants are Kaswaguzi s/o Migoi Mang' ombe Paulo and Shula s/o Chasama, respectively. The latter two appellants filed a joint appeal, • H.C. Cr. Appeal No. 294/1993, ·and Kaswaguzi' t.ilhd his own separate· appeal but as a matter of convinience both the appeals have been consolidated because the three appellants were the subject of the same charge arraigned jointly and together in.the district court. They were alao all convicted of the charge of stealing cattle c/s 268 (1) of the P.C, Cap.16 of the Laws, and each wae sentenced to five (5) years impr:i.sonnent. Befor& this court they are challenging.both the convictions and sentences. Their memoralld.a of appeal appear general and in this regard the appellants' ground 2 - of appeal will_al.So b~ discussed generally _in this judgement. ill the three appellants expressly stated in their memoranda of appeal that they would not wish to be present during the hearing of their ,· ; . ". respective appeals. _Mr. Feleshi, ·teamed state attorney, appeared for the Republic/Respondent and argued the ·appeal. · .The ·facts of the case as narrated before the di•$trict court can be retiapi tulated in ·a summary form before I consider arl:l deterinine the !sBu~s involved~ It. was in the mo~ning ;of 7/8/92 (81!00 a'..m~) wheh Prosper Edward {PWl) was in a hotel at Se_ngerema~ He is a tradi tionai guard · eommaru;ler ( chi~f of 1isungµSUilgllir) in that are a. He saw . two youths, ' . 1st -~ . ~ aJ¥i second ~ccuseds (Shule Chasama and Kaswaguzi s/o Migo)~ driving 1;wo r.ed cows. JAB a sungusungu man, PWl suspected them and wanted to, verify frdm them if they were the owners or they possessed them l_awfull,1:.•. . Thus he a-topped them and meanwhile the· third accused Mang' ombe appeare_d and joined- the two accused (co-appellants). !A purported docUI1Jent in the •.. the . . . . .•·1· : 1 name of ; JOSEPH ANTHONY'' was produced to PWl but /_ : said doc~~-~~. rose more suspe~ion on PWl because none of the three accused persons was called 11 Joseph Anthony!''· nor could they say where Joseph Anthony was. Worse still ' . ' the purported document indicated a:- 11 perrr1it" of driving 3 heads of. ~attle to . ·.~ ~- . . .. . , . . ~- . Sengerema cattle dwlt:ion m'arket but the a:ppellMts · had only t~o heads -~f ··' . . '. . .... ··. cattle. PWl arrested of cattle to sungusungu' offic~:~ . There· it is .said~ ~ccorci:i'~ to the evidence of PWl, that they· all admi tteci. to PWl that they s·tole the cows from their owner one Paulo John of Kasomeko village. JameftKigongo (PW2), wh; at the time of this case was working with the Ministry of Land & Survey at Sengerema., :::-,··. • ,· # .. • attended the gathering .at the sungusungu offic~ after hearing a whistle. Kigongo (PW2) claimed in evidence that.he is felated t~.Paulo John of Kasomeko village and that he knew his heads o~ cattle. PW2 identified the two heads of cattle as among heads· of cattle belo~ing to Paulo Johne ~- . ~ i"lds witness also confirmed that he was present when the three appellants / \ \ >- 3 ... were interrogated about the animals and that h-e -heard·-them admitting to 'j ... '0 C have stolen them from ~he homestead of Paulo John. PW2 then wrote a letter to his relative Pa~o John (PW3) to inform him of the theft of his cattle. ' . ~ ' Pauio ·(PW3) confirmed in. ~vidence that the two heads of cattle were· among· #.; ,, ,.- the lot of his 33 heads of cattle. He furthe~ sa.id.th~t when h~ got a . ·t . letter from PW2 telling him ab~~t- the seizure ~f hi~ cattie, by -~ungusungu he sought'·to counter ·check the .irrl:ormation by counting his cattle 'in the kraali ' 'Ile -got 31 heads of c'attle. instead of 33 ahd thi:s confirmed to him ·:of-~hat. PW2 told' him~ . He. approa"ched· his ten cell· leader Kaswaguzf Kaduk~ (PW6) and the vill~e chairman Charles Maiongo .. (PW4) and informed them ·of the theft.·· Each of these two-witnesses gave ·a chit ·to·PW3 to confirm that thfs cattle kraal w"as·broken into and two heads of-his cattle were.stolen and that he was free to go in. search of· thein~. ,The evidence· that -PW3~s cattle kraal was·-'broken at its rear $ide · was· corroborated by PW4. · The complainant . identified the two ·heads of cattle 'through their' red colour:·and ·one ·of them had white colour on·· the right hind .leg. He .:alscf saw the three ·appellants at sengerema sungusu.ngu\office~: ··-. ·:aut on the· evi~'ent record the evide~ce 'of Kanye~ere Maswiri (PW5) appears to ~ontr.adict ·the evide~ce of his coileagtie su"ngus~~ com~~e~ (PWl)·, ~so. th~: evide-~ce o; the eye. wi ~n~~ses. S.~es' Kigo~~ ·(:PW2). ~- Ali •.,. •, :• ",f:}•. \:. "I• . • '• PWl, PVi2 and I!vJ7 all testified and confir~e-d th~{ the . . . : 1•• ,·. ~\ • • ,: : • • • , • ,, • ·, • r\, I ,• • • • •: • !. ~ • • .• : • • • • • ; : • • :-:. • ,: • IC • :• • i • r .' ' • three accu.seds ·(appellants) were apprehended together while driving·two . • . - •· -•.. , ' .. 'i "' j_ .;· .... :•• heads ·of ca.ttle fo 'sengerema market. They also explained as how they ., . ·! . :· g~t the animals ~nd e~ed up -ended up ad.mi tting' that they· stol~- them from 1 the home~t~ad ~f one Paulo ·John;·. But PW5 had..this to ·sey i n ;'espe~c1tof the second ~c~used Kaswaguzi s/o ~i'igo, · and I quote: >~ . . . ', . ,i'(. f. PW5 • • ••• o • • • • o • ~ • • • • • I am a ( sungusungu) 11 , commander a:t Ibbndo villag·e. I -'ltno\,;--'the' : -~ 2nd 8:ccused _pyrs.on. • He, is .a .reside:p.t oJ Ibondo village also. On ?/8/92 at about 7/8/92 at about 8.:oo· a~m. ·r· ~as at home. -· 4 .· ~ ;;;(' .. Whil.e there, another sungusungn commander of Nyampulukano appeared. ··1ie is o~e\,,\•, .p;oaper F,dward (?Wl)_. -He ~as with otJ-ier .. sungusungu soldiers. He told me that Migo (2nd accused) had stolen cattie. ·He requested me to arrest him.· I went with. .,.· •·. those sungusungu up to 2nd accused's house. I arrested 2nd iccus.ed and handed him o-ier ·: to PWl. I was told that those herds (sic) of cattle were stolen·at Kasomeko~- Th~ .?ame we-re apprehended. at Nyampulukano" • Svea· on ~ross-examination ..by the appellant . . Kaswaguzi PW.5 reit~rat'ed that ' I they\~ested him_ in ·the mohrl.ng at. hl~;~P~~, Ibondo viiiag~. But ·as I - : ./ . . . ,: ~ ! "i :.,•. :: -·? . . . . ,; . : .. .... ~ ~ ·hav~ said ,13.bove, the evid~rice of ·PWl, PW2 and F'w7 is vo~chl.ng for .one thing, .. -:.:::··• al;\d that i~ that the appellant Kaswagu,zf was_ arrested jointly and 'together with. the two other app:ellants in ·Township of Sengerema. I have ..noted from the'judgement·ot the Learned trial district magistrate. that he di~ not refer to this inconsistency in evid~nce, ~twas left unresolved. Nevertheless, I will revisit this issue in due. course~ ;,. .... ",':.· ID10ther piece of evidence·i$ the alle~ed confession of the 1st accused Shule s/o Chasama to detective colp. Ermnanuel (PWB). According to I this witness he took 1st accused's caution statement, which he said was made_voluntarily by the accused. It would appear from the record that all the threa appellants did not attack the caution statement ~f the 1st accused . . . (i~e, appellant Shule Chasoma), nor did they raise any objection to its . p,roduct_ion (~.e. exh_. P.3) to imply. that the statement was not a volun~ary one,. The record explicitly shows that all the three appellants are down on record to.have indicated that they had no quarrel (objection to) with . exhibi t:J?~3, henc~ its. . tendering as. part. of the evidence ·against·. . them, · ' We then have the defence case in respect of the three appellants. The lst· accused Shula Chasama claimed in evidence that on the date material • !' to the· case he went to Mission area~ in Sengerema township, with a view to ··. ·attending a. funeral, him having left his home at· 7.00 a.m. There he met 5 - a group of people and he joined them. He noted that one Joseph Anthony was under arrest by sungus-µngu on the ground that he was being suspected . . ~~ to have stolen some head:S of cattle •. That on being interrogated joseph Anthony claimed he was a cattle d~aler and that if they wished to verify they could ask the appellant Shule Chasama. . This accused~appellant denied that s:tatement but sooner than not Chasama: was apprehend.ad and taken to the police st.ation. Fihail:v he was charged with the present. offence. He had no witness to vouch for his· :evidence• He denied having any past grudge or ill-fe~ling with the porsecution witnesses PWl, PW2 and PW? whose evidence was quite incriminating :~ainst •him• He further claim~d that ·the: alleged Joseph Antho,ny was released by the surigusungu 0 But then comes a ·question mark as why this ·appellant never cross-examined the ~uhgusungu . . _rel.ea.sing · . . commander (PWl) .:as to- th& ~asan, f-OV Lthe said; Joseph Antliony. ·rt also seems curious -as. why he said nothing about the caution ·state~ent (exh~P.3) allegedly made by him to PW8, nor is there evide.nce purporting 'to show as' w'hether the said statement was obtained fr6m hiln involuntarily. The case for the appellant Kawagazi is also that of complete denial. ' He also·raised an alibi. In short, it;is his evidence that b~fore his ·arrest th~,re was a m:lsunderstand.ihg between him and the sungusungu commander The alieged friction occured on 3/5/92 at :· the -: appellant•·s home~tead • I where there was a local brew commonly referred to.,:··,as "mapuya11 .: On that da;t1,, according to the appellant, PWl was refused to be sold. 1 pombe 1 because he 1 did not have money. Then he threatened the appellant telling him that sooner ♦ ' 11 consequences11 • . . or later he ( the appellant) would face the Then on 7/8/92 •PWl effected the appellant's arrest at· the:appellant•s home and brt>ught hiin to Sengerema at sungusungu office wher,r the a::ppellant met the· 1st and third accuseds (rest· of appellants). · That · the appellant ivas · fiogg~d for two days and then he was taken to the police station, and.:'then to court. Two witnesses, S~buso ~uya (DWV and ,rrancis Ncheye (bW2), bot.h testified to the effe~t th~t sometime in August,. 1992 there was an alarm raised in ti the "fillage apparently comming from the home of the sungusungu c.ommand._er •. 6 They· w~nt there apd they found the appellant Kawaguzi under arrest, They• =learnt. tl).a,t the appellant was arrested on suspecibn that he had stolen sdme heads of cattle and then fled away. That the sungusungu commander requested them.to take the appellant to mission area in , Sengerema, ~hich they did. Muna Pascal (DW3) did testify similar evidence aS DWl and DW2. The third accused Mang 0 ombe had no witness to call but testified • alone in defence •. He very shortly stated that on 7/8/92 at about 2.00 p.m •. · sungusungu men arrested him and brought him to Sengerema. There he was shown the 1st and 2nd accuseds whom he denied knowledge of them, nor had • •·· he had any conne~tion with them. But on cross-examination he changed the .. story and- admitted that he knows the appellant Shule C~ama (1st accused) who·.·. ·hai~s from the village of Nyamatongo, and that Warig' ·ombe knows -cShule very well as they. were attending disco dance together. He said ..., :- . he, has no. bad heart or grudge with PW1 1 PW2 and I'W7 who appeared to have give.~Jncr:i,ipinating evidence against them. However, he stated that his •,,· . . i=ny:olvement in the case stemmed from the statement the 1st accused made to the police. The crucial question that this court must consider and determine is whether the evi,de_nce against the three appellants left no rc,om for and . .... , speculationL_;t;h~refore incapable of raising doubt as to their g~lt. · At ·first, Mr. F~les};tj. 1 Learnerl .state attorney,. ~as aJ.:L out not to support conviotion against the :appellants_ for twq main reaso:qs: first that the complainant PW3 did not giye special brand marks· of his ·cattle which would confirm beyond,.reasonable doubt that the two heads of cattle . belonged to him; secondly that the doubt ·as whether the two heads of cattle were PW3' s property vlaJ3 not resolved by the evidence of PW2 and PW3 because the· owner PW3 had not yet kno~ that he ._had lost any head of ·cattle unt!i.1 alerted· by his _relative PW2 throug·h a, lefter. ~fore his ·.--2:,, conclusion. however, the Learned state attorney state~ that their office . was riot in pos~ession. of the ls.t =accused's caution statement and he prayed . 7 . the court to read out the contents of exhibit P.3, which was done~ Mr. Feleshi then changed his mind and stated the caution statement of the 1st accused amounted to confession, and that as the statement mentions all the appellants as havingjointly and t~gether participated in the theft of-PW3's -. . . . .. .. ·. . . . . . ~ cattle that was enough corroboration to the endence of ·pw1, PW2 andPW7• Accordingly he prayed that the appeal be dismissed. I propose to deal first with the case for the appellant K<;lwaguzi (~econd accused). There are two versions of the story touching his ca:se. The first version eminates from the prosecution case by PWl, PW2 and PW? who strongly testified that the appellant Kaswaguzi was arrested red-handed with the 1st a.Irl 3rd accused persons in possessio~ fer two red head·s of cattle. The eantradicting story was heard fro~ Kanyere~ (PW5) and the thr~e d~f'~nce ' ' witnesses for the second accused from Ibondo village, all testified to show that oh the 7th of August, 1992 the second accused was arrested at· Ibondo - . village and not at the Mission area as claimed by PWl, PW2 and PW7~ Although DWl., DW2 and DW3 t·estif:i.ed to the• effect that they w~i-~ told th~; the second accused had stolen heads of cattle and then escaped• however t:he trial court's record is silent in that it reveals nothing as whether the• appellant Kaswaguzi ever escaped from the lawful custody of IWl, or even of a police offcer after his arrest at Mission area, in Sengerema towns~tPo I see no reasonabie justification as why the two key w1tnesses for.prosecution, viz PWl and PW5, each should testify differently from the other., And more than that :OWl, DW2 and DW3 cogently corroborated the testimony of PW5. I see · ·nothing from the e'V'idence· showing or tends to show ·that the· prosecution ,, ' ende'avoured to challenge the defence case. No doubt, it is the law that the burden to prove each allegation beyond reasonable doubt,· in most of criminal trials·rests on the prosecution. The fact that the evidence of PW5, DWl, :DvJ2, Dvi3 and that of the appellant having remained undis·turbed, it cannot be s,Md in my view . . . _ ... posi tively~hat the case for prosecutj,on ·is-:w'ater -tight. ·rn other words,-~, 'from the evidence, it was 'not impossible to say th~t the appellant ·-was 'EI.rrested in the village of Ibondo M allegEbci' by the defence, or was also possible that 8 he was arrested at Mission-area with.the two other appellants as claimed I : by PWlt PW2 and PN7. With such dtvergent pt>ssibilities, I think• the law ·. demands that· the doubt must be r_esolved in fa'.V'9ur of· the accused (appellant)•· But there i~ ~ther ey.idence yet to be considered and that is .the evidence I . .of PW8, the . detective . copral, . based on the alleged confession of the first accused Shl.1;le s/o Chasama. The gist/substance of Shtiie' s caution statement .,. . of PW8 runs as follows: n_.o••••o••••••••• tarehe 7/8/92 saa 23.00 . . za :µsiku mimi na weniangU Charles s/o Mayeka ,. ·na Mangt ombe s/o Kalegea tuliondoka nyurnba;ni kwenda Kasomeko kwa ajili ya kuiba ng 1 ombe kwa Paulo s/o Jo~ baada (sic) ya kufika. huko nyumbani kwa Paulo tuliiba ng'ombe wawili baada ya kufungua mlango wa zizi. Tuliwaswag;a ng' om:00 mpaka, eneo la Mission ambako tnkakamatwa na sungusungu na baadaye .. tulipigwa vibao. Tu.likamatwa wawili mimi · . ·na Mang' ombe s/o Kalegea na mwenzetu C.h~les .s/o Mayeka alikimbia. Baaday.e t:ukaletwa ki tuo cha Palisi Sengerema na kuwekwa ndani., Ni kvreli ng 1 ombe hao ·tuliwaiba kutoka kwa Paulo John wa kijiji cha Kasomeko"•· The statement quoted. above talks of three persons,. namely Shule ,ff!,/o Chasama, t•i'ang•'·ombe s/o 'Paulo ~ -Kaleg.eya and Charles Mayeka. The appellant.Kaswaguzi mentioned 's/o Migo (second accused) is not .f. · . in• the~~tement,, nor; .. <ioes the :evidence talk anything about 17 Charle Mayeka.1 1 • The lf:lt c;1.qcused Shule, as I_ have ·mentioned above, never referred to. the above statement, whether in his examination in Chief or cross examination•. This means,. I. think, that the evidence against the appellant i(aswaguzi .was . that of. Pwl,. PW2 and PW7 which. appear_ed to be destroyed by the evidence PW5, ,the appe.llant. himself, · · , those : , · ·· . DWl,. DW2 and DW3. ·Int_ circumstances it is ·not :impossiblej that th~ sungwsµngu commander ,. ' Pwl had p~ecipi ,; tated .. a grudge. . against the _·appellant (second accus~d) on· the account that ;,on 3/5/92 the appell~t,.had ~-· ... . refused . , ~ , ·to offer local brew to PWl free of charge. I. am-the·refore sat~sfied.,_that 1 . in the light of what has been observed above, b.¢~ the Learned trial district 9 : ·. f' ·. ' magistrnte painstaking~y analysed th~ case properly- he would hav:e come to the same conclusion as :t ·do. In the result I give ·the appellant the benefit _of doubt and accordingly I allow his appe~. In the· .result I quash.' the . conviction and s·et aside the sentence agains't him. He is to be, s~t free · from the .Prison forthwith unless oth~rwise lawfully held. ,;,. Now coming to the appeal in respect of the.1st accused Shule.s/o Chasama and the third accused Mang 1 ombe ~/.o Paulo_ s/ok~egeya, at a quick glance I wou'id have shared the same view •13,s initially expressed by the Learned State attorney that there was not any proper identification of the alleged' stolen heads of cattle to vouch for·the fact that they belonged complainant . to the L. . PW3.· The evidence of PtJ3 does not state with precision, ' ' as what are the special marks of his heads of cattle. To simply say that his two stolen cattle were ilred in colour; 1 and .one of them had a 11 a white spot on the right hind leg0 , in my view, this. is a too general prop9si tioh and such evidence· does not exclude the possibility of · the two heads of cattle t:f/S beillg · . be the property of another person other than the compl.ainant . . . ! ·- ' Paulo s/o John. This is even more· so becau·se Pvv3 ( complainant) never comp~ained about the theft of his cattle until PW2 wrote to him from Sengerema ·- township. It is not also easily understood as how PW3 cou;Ld have. failed to note · the breaking· c:if his cattie . ~aal . .~, ( boma) on its rear side. until . alarmed . ·.. ; =by a letter from PW2. Be that as it may, however, the complainant _(PW3) . ' remained the sole claimant of the two heads of cattle. Moreover, Prll would not have known that the animals were stolen from one Paulo s/o John unless told, as indeed was told, by the two appellants (1st and third accuseds) • The revealation a~· who was the Qwner of the. two heads of cattle also a1weared to have struck the mind of PW2, PW3' s rela:fi.ve, who. ·. just happened .to be ~ around ·when' the appellants .:were . QJ'.'.rested a~ thus he recognised the two a~ima1s as being part df\the lot of :PW};s he.a,ds of cattle. PW2 ·then for acted swiftly to notify PW3 in the:· village . and the Latter ,l9st ,no time ,lhe took ' .. :r:e.quisi te st~ps to inform his· ten, cell l~.a,.der.,and then t:qe ~":illage Chairman (PW4) who visl'ter the scene and confirmed that he s~w PW3 1 s cattle kraal " lO broken • .As the animals were seized from the appellants in a broad day light and in the presence of the members of the public, I think that Wa/5 . concerning the enough publication :.l recovery of the two stolen heads of cattle ani had there been a claimant other than PW3 I believe he would have surfaced. &nd it is more so h~ving regard to the fact that the publication concerning the seizure of the cattle from the appellants was not only punctuated by the of alarm raised at Mission area (Sengerema township) put also ahe fact that news of the recovery of the two animals went as far as the villages of ' . Kasomeke and Ibondo .-- . vide the evidence of PW3i PW4~ PW5 and PW6. Besides, the 1st accused's confession (caution statement) w/3:3 never retracted or repudiated and this further corroborates the evidence of PWl, PW2 and N7, though in my view the case for prosecution could have been adequately proved beyond reasonable doubt on the basis of the evidence of FW1 1 PW2 and. PW?. These witnesses had no justifiable cause or reason to testify against the two appellants. In the up shot I uphold the conviction ~ senten6e against the appellants Mang' oinbe s/o Paul6 and Shula s/o Chasam~· :rn the result i dismiss their' appeal as it lacks merit. The sentence of 5 years imprisonment is within the statuto:i:-y mirtiinum sentence and I have no reason to. interfere, ;ns for the appellant Kaswaguzi s/o M1go (second accused) his appeal has been allowed, conviction quashed and sentende set aside aS hereinabove stated. I have also directed that he be released forthwith f~om the · ·i,rison. unless otherwise lawfully held. ,, ·.. \\ .,,,,..,v Delivered at Mwanza, A . ~ · MREMA . ' 13/9/95 JUDGE Mr. Lymo, Principal State attorney for the Rep(Respondent), present Appellants - Did not wish to appear. ~-r A. C. MREMA JUDGE 13/9/95 //