lutenganija so ngelea guta vs republic 2006 tzhc 198 11 august 2006

THE UNITED REPUBLI OF TANZANIA IN THE HIGH COURT OF T A N ZA N IA AT SIJMHAWANCA DC GUIM INAL APPEAL NO. 2 / 200 6 . (O rigin atin gfrom Criminal Case No. ]37/2005 Siunbawanga District Court) LUTENGANIJA S/O NGELEA @ GUTA ............ APPELLANT VERSUS THE REPUBLIC .................................... RESPONDENT (Dated: 27.07.2006 And Dated: 11.08.2006) JUDGEMENT Before B.M.Mmilla. Judge. The appellant Lutenganija s/o Ngelela @ Guta and another person who did not appeal were charged in the District Court o f Sumbawanga with the offence of cattle theft c/s 268 and 265 of the Penal Code as amended by A ct No. 12 of 1987. On conviction, each of them was sentenced to fifteen (15) years’ imprisonment. The appeal is against conviction and sentence. The facts of the case are not complicated. Sometimes in March, 2005, PW1 Samuel Ndigira had his herd of cattle stolen. He had no knowledge as to who the thieves could have been. On the morning of 25.4.2005, he happened to go to the home of Konoradi Kanyam a in whose kraal he saw a herd of cattle which he identified to have been the one which was stolen from him. It was brownish in colour with, according 10 him. ? wli.itc spot on the facc. On quest ioimi<: him how he came about 1he said herd of cattle, Konoradi Kanyam a told him that it was brought to him two days earlier by Sanka, his brother in-law. P\V1 contacted Sanka. The latter told him that he bought the said herd of cattle from a person known as Albro, a Somali. He contacted Albro who told him that he bought the said cow from a person known as Aloyce Masangala. This person was the second accused before the trial court. Efforts by P W 1 to trace Aloyce Masangala proved futile. It was then that he reported the m atter to the police. Investigation was commenced, subsequent to which the appellant and his colleague were arrested and charged in court. The appellant appears in person while the Republic is being represented by learned state attorney Mr. M alata. He declined to support appellant’ s conviction on what he said his conviction was grounded on insufficient evidence. The memorandum of appeal has raised five grounds, the first two of which allege in com m on that there was no sufficient evidence to support conviction. Mr. M alata submitted that the evidence of P W 1 Samuel Ndigira and P W 2 Hussein A lly Yusuph was, as against the appellant, weak and unreliable. So was the evidence of P W 3 , Isack Nandi, he added. In essence, he said, P W 2 and P W 3 said that they bought the herd of cattle in issue from Aloyce Masangala who was the second accused before the trial court. Helving on the cases of Gilaru v. K ( 1 9 7 J) MCI) 100 and Hiihlmi Am ir v. K. (1992) T .L .R . 05, Mr. Malata said that identification of tlie herd of cattle, the snbjecl of theft, was unsatisfactory. As for the evidence of P\V4 Em m anuel U laya, Mr. Malata submitted that his too was unreliable because he did not describe the appellant. His basis is that because he never mentioned his name, it was doubtful that he had known him before as alleged. In his view, he did not name him because he did not know him. A careful scrutiny o f the evidence of P W 1 , P W 2 and P W 3 leaves no doubt of appellant’s non-involvem ent in the transaction. In particular, P W 2 was categorical that he bought the herd of cattle in issue form Aloyce Masangala. Like P W 1 and P W 3 , he never mentioned the appellant. The only evidence which to an extent touched the appellant is that of P W 4 Em m anuel U laya. This witness was the Village Executive Officer of M kam ba Village who was allegedly requested by the appellant and his colleague to issue them a permit to enable them drive the said herd o f cattle form M kamba Village to Sumbawanga. He purported that he had known the appellant before that day, a person he alleged was his neighbour. As correctly subm itted by Mr. Malata however, this witness did not ever mention the appellant’s name, nor did he describes him. I share Mr. M alata’ s opinion that this creates doubts on whether he had actually known him before as lie related in court. It does not appeal to me that this witness could have failed to name a person lie allegedly knew as his neighbour. In view of the fa cl that his evidence is the only evidence which louchcd the appellant, and there being 110 other evidence to corroborate his evidence, it cannot be said with any certainty that such evidence was reliable. As is always the case, any doubts in the case are required to be resolved in favour of the accused/appellant. The appellant thus gets that benefit. The question of identification of the allegedly stolen herd of cat tle, for which the cases of Gitaru v. R and Bushiri Amir were cited in support, is in m y opinion insignificant in the circumstances of this case. It is not one of the basis in which appellant’s conviction was ground. As such, 1 find no need to pursue it. In the third ground, the appellant challenges th at the trial court misdirected itself in permitting itself to be influenced by appellant’ s election to remain silent as proof of his involvem ent in the charged offence. I do not share Mr. M alata’ s view that this ground is vague for what he said it is not explicit. To the contrary, the trial court appears to have been influence by the fact that he elected to remain silent. On page 1 of the trial court’ s judgm ent, it is reflected that, I quote:- “ On the careful consideration o f the evidence I note that all the prosecution witnesses are very trueliful (sic) witnesses. I have seen and assessed their demeanour. As for ownership o f the animal (sic), no dou 1)1 they are property of P W l. (sic). Furthermore considering the accused persons silence, this makes it abundantly clear that accuseds (sic) are nothing hut thieves (sic)” In m y view, I do not think that appellant’ s election to remain silent justifies any adverse inference being drawn against him that because of that it was obvious he committed the alleged crime. I need not repeat to state the basic requirement that the prosecution were duty bound to prove their case against the appellant beyond all reasonable doubts. The appellant had no duty of proving his innocence. The trial court’ s inference of appellant’s guilt by the mere fact that he elected to remain silent amounted to shifting the burden of proof to him. T hat was improper. The appellant’ s complaint therefore has merits; it succeeds. The fourth ground alleges that the sentence of fifteen (15) years’ imprisonment was manifestly excessive. I share Mr. M alata’ s view that the complaint is insubstantial because the punishment complained of is what is prescribed under section 268(1) o f the Penal Code. That section provides th at:- “ I f the thing stolen is any of the animals to which this section applies the offender shall be liable lo imprisonment for fifteen years ’ . For avoidance of doubt, subsection (3) of that section provides tliat:- “ This section applies to a horse, mare, gelding, ass mule, camel, ostrich, bull, cow, ox, ram, ewe, whether goat or pig.” In view o f this, I hold that this ground lacks merits and is dismissed. In conclusion, in so far as I have held that the prosecution did not prove the case against the appellant beyond all reasonable doubt, the appeal as a whole has merits and is hereby allowed. In consequence, appellant’ s conviction is quashed and sentence which was imposed is set aside. It is ordered that the appellant be released from prison with immediate effect unless he is being held for some other lawful cause. Sgd: B. M . Mmilla, Judge. 11.08.2006. Court: Judgment delivered this 11th day of August, 2006 in the presence of Mr. M alata, learned state attorney who represented the Republic and the appellant who appeared in person. 1 certify that this is a true copy of/ll e \ O r i;n n a l Dislricl Registrar High Court (T ) SUM BAW ANGA