luciana fataki vs republic 2006 tzhc 261 28 july 2006

THE UNITED REPUBLIC OF TA N ZA N IA IN THE HIGH COURT OF TA N ZA N IA A T SUM BAW ANGA DC C R IM IN A L A P P E A L NO. 13/2005 (Original Criminal Case No.16/2005 Sumbawanga District Court) LUCIANA D/O FA TAK I — APPELLANT VERSUS THE REPUBLIC — RESPONDENT (Dated 01.06.06 And Dated 28.07.06) JUDGMENT B E F O R E : H O N . B. M. M M IL L A . I . On 01.06.06, I quashed the appellant’ s conviction, set aside the sentence imposed on her by the trial court and ordered her immediate release from custody unless otherwise lawfully detained. I reserved my reasons for doing so, and the same are contained in this judgment. The appellant, Lusiana d/o Fataki was charged together with her husband one Pasta s/o Gabriel @ Edwin of two counts; burglary c/s 294(1) and stealing c/s 265 both of the Penal Code. On conviction, they were each sentenced to a term of five (5) years’ imprisonment in respect of the first count and a further term of six (6) months in respect of the second count. While her husband has not appealed, the appellant’s appeal is against conviction. The facts of the case were simple and straight forward. On the night of 11.1.2005, P W l Gaudioza d/o Funga closed the doors of her two rooms at a house in which she was living at Chanji area in Sumbawanga township and went to sleep. On waking up the next morning, she found that the door to one of her rooms was broken into and several items stolen from therein. She immediately reported the incident at Sumbawanga Police Station. On 17.1.2005, she was informed that the police had recovered several properties which they suspected to have been stolen. They invited interested persons to go and identify the said properties. She did go. On arrival there, she identified nine (9) cushions for coaches which had their covers on as hers. Other things she identified included four (4) table clothes and a compact radio cassette. It is on record that she positively identified them. She testified though that she had no knowledge who perpetrated the theft, and that she came to know the accused persons later. In view thereof, the appellant and her husband were charged in a court of law. The appellant’s memorandum of appeal raises six (6) grounds. The substance of them all is that the prosecution side did not prove the charges against her beyond all reasonable doubts. Learned state attorney Mr. Rwabuhanga represented the respondent Republic. He declined to support conviction and sentences. In his view, the evidence which was received by the trial court did not reveal appellant’s participation in the alleged crime. He submitted that because the first accused told the court that the property which was seized from his home was his, there was no basis for holding the appellant responsible for the charged theft. He also said that the police neither interrogated her nor were they called to testify in court. In his view, there was substance in her allegation that the prosecution did not prove the case against her beyond all reasonable doubts. I have carefully gone through the proceedings and judgment of the trial court as well as the grounds of appeal raised by the appellant. I hasten to say that I share the view expressed by the learned state attorney Mr. Rwabuhanga that the appellant was convicted against the weight of evidence it received. In the first place, none of the witnesses said they saw her committing the offence. Besides, the police did not interrogate her, nor did they appear in court to testify as submitted by Mr. Rwabuhanga. No explanation was given. On top of that, the first accused before the trial court told the trial court that the properties which were seized by the police were his. This means that he exonerated the appellant. This is the reason why I hold the view that the trial court misdirected itself in holding that the prosecution had proved the charges against her. It is on this basis that I allowed the appeal, quashed her conviction, set aside the sentences and ordered her immediate release from custody unless otherwise lawfully detained. B. M. Mmilla Judge 28.7.2006. I certify that this is a true copy of the \al. District Registrar High Court (T ) SU M BAW ANGA. L