19960605 TZHC Dar es Salaam

.\:: :-9 / . i R.e1~ ~ ~~ 1 ~ ~ct.J. ~ ~ cl,.h_ .:s-(' ~ ~ IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO. 40 OF 1995 ORIGINAL CRIMINAL CASE NO. 238 OF 1994 (OF THE DISTRICT COURT OF ILALA DISTRICT AT KIVUKONI BEFORE MAPUNOA.ESQ., RESIDENT MAGISTRATE) 1. MAGANGA EDWARD MWIGA 2. AMBROS KOMBO . ; ••..•...•••••.••• ; • APPELLANT VERSUS THE UNITED REPUBLIC .......•......•... , .. ;... RESPONDENT J U D G E ME N T KALEGEYA, PRM (Bxt. Jurisd.) The Appellants, Magariga s\o Edward Mwiga and Ambrosi s\o Komba (hereinafter referred to as 1st and 2nd. Appellant respectivelly) were jointly charged and convicted in count one with Being in Possession of property suspected to have been stolen or unlawfully acquired c\s 312 (l)(b) o( the Penal Code and sentenced to 3 years imprisonment each. Aggrieved by this conviction they have pr~ferred this Appeal. As regards the 2nd count in the charge, thoUgh the 3rd accused was acquitted and hence not subject of this appeal, as I will haVe an occassion lo comment on the charge sheet as a whoie later on I find it ProPet at this stage to touch him as well. The 3rd accused Kat.ale Mombasa, was alone charged with office breaking and stealing c\s 296 (1) of the Penal Code. The suspected property ih count one was said to be a weighing Bridge Computer valu~d at 45 miiiion (~SHS.) while the 2nd count maintained that Katale had broken into TAZARA offices and stole various properties including the weighing Bridge Machine forming the subject matter of count one. After hearing the evidence of four witnesses the leatned t.r ial Magistrate acqu1 t tec1 Ka tale on count 2 and convicted Appellants on Count one, The Appellants in their joint memq of Appeal which they adopted in whole during the hearing of their appeal challenged their convictions on 3 grounds - that the ttJai Magistrate should not have acted on the evidence of a sin.gle witness (PW1) without corroboration and cited the case of Tinga KeleJe v R (1974) TLR No. 6; that the magistrate.should not hav~ reliecl on the evidence of PW2 and 3 for none testlfied as havii:ig. 2 seen any of the Appellants with the alieged property, and finaily that the magistrate did not direct himseif properly on whether the arrest was lawful and that the offence was hot proved beyond all reasonable doubts. In reply Hiss Mkwawa; iearhed State Attorney for the 1 Repubiic\R•spondent; brushed aside ili the~~ claims as baseless in that PW1; a police officer arr~kted th~ Appellints in his hormai coutke of duties; thaf P~1 and 3 ca~i in as witnesses · to prove ownership of the weighing Bridge Computer and that the offence was proVed beyond doubt.as requited by the iaw. · I should start by saying that this is an interesting btit unfortunate case as it suffered various tiricalied for irregularities right from the time of arrest; investigation; ,prosecution up to the Coutts of ia~i While the Appellantsi argtimetit that the Couit should hot have acted oh the evidence of PW1 without corr'oboraticiri is unfounded because this is not the type of a case where corroboration is teqLlited a~ guidedly bionotinc~d ih thj case o! TJpga Kele le which principie concerns offences. c:ofnmitteci when powers of vis ion are impaired; the other grounds ·ie. that the I trial magistrate relied on the evidence of PW2 and 3 se~m to have substance. In order to appreciate the picture ih ehtitett let me reproduce the charge as presented even at lhe danget of makind lhis·judgement unduili 16nd: · · ' 2. 1st count fb~ 1st ac~Used ~hd 1hd ~cc~sid Q.f.f'.ENCE; SECTION AND i.AW Being in possession of property of having been stolen or unlawfully acquired c\s 3t2 (l)(b) of the Penai Code {doted emphasis mine). PARTICULARS 0~ OF~E#CE! That Maganga Edward Mwiga ~hd Ambrose s\o komba are jointly and together chatged on 16th dai of ~ebtUrit¥ 1tj94 it abotit 16.00 hrs at Kurasini area; within Temeke District Dar es Salaam Region, .wete fouhd ih Uniawfui possession of ~eigb_ing Bridge Computer valUed at Tshs. 45,000;000/= the p_JQP.~rty of the said Tanzania Zambia Authority the property which_have been stolen (emphasis mine), ing Count for 3rd Accused OFFICE BREAKikG AND ST~ALI»G c\§ 296 (i) or Tkk ~E~At bobi cA~.i6 OF THE f.,AWS. PARTICULAR~ OF THE OFtENCE ; That Kataie s\b Hamisi Mombasa charged on iath day of February 1994 at night time at kurasini Railway station; Tanzania - Zambia Railway Authotity, within Temeke District; bat es S~laam Region did break and enter into an office and ste~l weighi~g 3 bridge computer, one Air condition and Battery charger valued at Tshs. 50,000, 000/= the property of the said Tanzania Zambia Railway Authority". Now turning to the evidence - PW1 is a police officet who testified that in the.coUtse of investigating theft of a weighing Bridge computer belonging to BP Shell he got inf~rmation from an informer that at Kurasini there were peopie who had a weighing bridge Computer in their possession. He duiy left for the scene in Company of 2 police officers and that (let his own wotds paint what transpired). "On our way we saw a tnotor vehicle heading to the same place and at a back seat we saw the 1st and 2nd accused holding weighing bridge Computer and we stopped the driver infront and we arrested the accused person namely the 1st and 2nd accused ii. Finally this witness said that ~t the police station the TAZARA people (who turned out to be PW2 and 3) identified it as their stolen weighing Bridge Computet. PW4 was simply handed over a police case file ·as an investigator. He found Appellants already arrested. That was all the evidence adduced by prosecution. All ih all therefore the only evidence linking Appellants with the offence as framed is that of PW1 and the question is whether this evidence proved the offence beyond all reasonable doubts. At the outset of this judgement I called this case interesting and unfortunate. To start with the charge sheet, one really wonders whether its author paid it another eye-cast after drafting! Count one is so mixed Up and it is surprising i:hat. eveh the trial court went head on fail with the ~tosecui:oris presentation1 Once you say that the property is stis~ected to have been stolen or unlawfully obtained the question of knowing the owner is automatically excluded for if the owner is known then it becomes a different offence altogether. On the other hand the particulars of the offence are at variance with the offence charged. At most the particulars would come closer to ah offence; section and law under s. 311 but hot 312 Pehai code I ft has . indeed buffled me that the charge sheet ~as dtafted ~hd ~tes~hted in the form it isi It'is not of insignificanc~ also to not~ that while Appellants ate alleged t.o have been found in uhlawftil possession of the TAZARA stolen weighing Bridge machine ori 16\2\ 94; in the same charge it is indicated that the office breakage and theft look place on 18\2\94! One of the Appellants 1 complaints against the trial court is that it relied heavily bn the evidence of PW3 and 4 when this didn't concern the offence with which they were chatged. I think there is substance ih their complaint. The trial Court having admitted a defectiv~ charge (at least ih count on~) ~ent oh to 4 rely on wrong principles not applicable to offences under S. 312(1)(b) of Penal Code. As I have stated above the onlr televdhl evidence is that of l?W1 but in convicting; the trial cotirt, omnibusly considered other evidence as well~ At ohe stag~ the trial court stated.in _the jtidgement; · · · ·, "The prosecution wi l:nesses and the accused ·haci si:atad in court that it Was the 1st time to see each oihetj and under this circumstance I find no reason why the __P.rosecution witnesses should fabricate evidence against the two accuseds" (emphasis mine). What prosecution witnesses is he referring to apart from PW1! Not only the above, talking on the weighing bridge machine as referred to by PW! the trial court had also this say, "This piece of evidence was. iat:er clatif ied by PW2 who identified the property as the property bi TAZARA and thete is anothet ~Vidence from P~2 dhd PW3 to the effecl that one of the TAZARA offic~s had been broken into and a ~eighing Bridge Computer machine had been stolen. By producing the said weighing Bridge Computer machihe in ~ourt, put weight to evidence of PW1, PW2 and PWJ": (emphasis mine). support on Appellants' cry need hot go far th art this complete misdirection. As regards wrong principles of the la~ 5 let the ttia1 cotitt speak for itself, "The law in this offence is clear. The prosecution side is only required to show the following a) A police officer must suspect the c~rpril ~ho has d property that the property is a stolen property. b) The curprit with the properly must be atresl~d ahd put into custody. c) Later; property ~Uspected to have been ~toi~ti must be identified by a person ~ho claims to be his property or her property. , As mentioned earlier, the accused persons had beet) suspected to have stolen property and they were arrested and put under custody and later the ssme propert~ was identified by PW2. This evidence was not challenged by the accuseds during cross examination nor in their defence"! 5 He did not end there - in sentencing he said, "The property found with ... , is the property of a special authority and the law has prescribed a minimum sentence under this circumstance I have no alternative but to comply with the law., •... ;· ..... accused are jailed for 3 years"! Glaringly therefore the trial Court acfed on wrbhg principles. Thats not the law. The prerequisites fot a conviction under S. 312 of the Penal Code are - a) Accused should have been detained by a ~olice officer in exercise of his powers under s.25 CPA. b) Accused should have been in the course of jourhey, i.e. whether on street, private land or building. c) Should have in his possessioh the suspected property upon being detained. d) From its nature or circumstances the sUspecled property should reasonably be suspected to havd been stolen or unlawfully obtained. , e) The accused should have refused to give an account to the court on how he came by the property or gave an account which was so improbable as to be unreasonable or which was rebutted by the prosecution. That is the law as far as it concerns property suspected to have been stolen or unlawfully obtained but ~hers the owner of the property is known as is the case here (propetti ot TAZA~A) s. 312 cannot apply at all. "A conviction cannot be maintained under s. 312 Penal Code if the articles in question can be identified as the property of any known person. If the owner is identified, it is no longer a question of suspicion, and the charge should be laid under a section of the Peha! code dealing with stealing or possession or receiving stolen property" (Jackson James v. R. (1967) (HCD) 273): The authorities on this are abundant, ie. : Rv Misengi Abdailah {i952} I TLR (R) io7; Mussa s\o Mgonjwa v. R (1968) HDC iOB). On the other hand even if all the above displ~yed had not tainted the convictiohs, the evidence of PW1 as quoted in para 9 of this judgement is not free from suspicion - being able to identify the weighing Bridge machine in a moving Vehicle and the Appellants naively holding it as if oh display when they knew the same to be stolen property or to have no colour of.tight over it! f 6 I Be that as it may, as detailedly explored above the convictions and ensuing sentences having been found on wrong principles of the law let alone shaky evidence .they can 1 t be left to stand and they are accordingly quashe·a · and set aside. Appellants are t6~be set at libetty unless othetwise i~wfU11y held. . ([.;, B. KaJ.egeya) PRINCIPAL RESIDENT MAGISTRATE WITH EXTENDED JURISDICTION. AT DAR ES SALAAM 15TH MAY; i996. - 1. vered Del - - to ell J;).L . · day th· e , ✓-,,..., .•• ,•ffCf( ' th·· ...• 1n ' l, Mis Mvli.v1<£')... t. e presence Or.............. state Attorney fot Republic/Respondent and ~sefteeiptesehce of Appellant. (tJ. B. kale eya) PRINCIPAL RESIDENT MAGISTRATE AT DAR ES SALAAM WITH EXTENDED JUR!SDlCT!ON s/t/1~