CRIMINAL APPEAL NO

IN THE HIGH COURT OF TANZANIA ARUSHA SUB-REGISTRY AT ARUSHA CRIMINAL APPEAL NO. 3956 OF 2023 (Arising from Criminal Case No. 51 o f2020, in the District Court o f Longido, at Longido before Hon. A.E TEMU PRM date 19th day o f May 2021) MAHADHI MUSTAPHA......................... ........................................APPELLANT VERSUS THE D.P.P..............................................................................RESPONDENT JUDGMENT Dated: 13/06/2024 & 11/07/2024 Before: D. NDUMBARG, 3 : The appellant Maadhi Mustapha was convicted by the District Court of Longido (trial court) of the offence of breaking into the shop with intent to commit a crime contrary to section 296(a) of Penal Code Cap 16 RE 2002 and stealing contrary to section 265 of Penal Code Cap 16 RE 2002 and sentenced to five years imprisonment for the first count and three years' imprisonment for the second count, to run consecutively. It was claimed that Mahadhi Mustapha on 1/08/2019 at about 03:00 hrs at the Kisongo Kati Namanga Village within Longido District in the Arusha Region did broke into the shop of Faraja William and stole 265 Jeans trousers, 50 cadet trousers, and 6 Jeans shirt, 4 Jeans Jacket,100 boxers underwear, 13 pair of shoes, 22 pair of sandals, 4 bags and cash TZS 1,275,000, all total value of 12,410,000 the properties of one Faraja William contrary to law. Dissatisfied with the Judgment of the trial court, appealed before this Court against conviction and sentence by lodging a petition of appeal with 7 grounds as follows; - 1. That, the trial court erred in law and fact when convicted and sentenced the appellant in contravention of section 38(1) and (3) of CPA which require to be issued receipt after search. 2. That, the trial court erred in law and fact when convicted and sentenced the appellant while there was no search warrant during the search and the appellant was not present 3. That, the trial court erred in law and fact when based on prosecution evidence and prosecution witnesses whose testimonies were incapable of sustaining the conviction as in the light of available testimonies, all the evidence is totally hearsay. 4. That, the trial court erred in law and fact when relying on exhibit to convict and sentence the appellant which(exhibit) was not in his possession. 5. That, the trial court erred in law and fact when convicted and sentenced the appellant while the prosecution case was loaded with contradictions, inconsistencies and discrepancies, incapable of proving the case to the required standard of the law. 6. That the first court grossly erred in law and fact when it failed to accord no weight to defence evidence. 7. That, the trial court erred in law and fact when convicted and sentenced the appellant while the prosecution did not prove the case against the appellant beyond a reasonable doubt. The appellant sought to set aside conviction and sentence and move the Court to set the appellant at liberty. At the hearing of the appeal, the parties agreed to dispose of the matter orally. The appellant Mahadhi Mustapha was self-represented whereas Ms Naomi Mollel Senor State Attorney represented the Republic. The appellant did not submit the ground chronologically. He started to argue on the 5th ground on variation in the charge sheet and 3 evidence on the amount stolen. The evidence shows TZS 2,175,000/= while the charge sheet shows TZS 1,175,000. Agued, the charge sheet was supposed to be amended for it to be valid as per section 234(1) of the Criminal Procedure Act, failure to amend lender charge sheet void. In support of the argument cited a case of Kilian Peter Vs R Criminal Appeal No. 508 of 2016 page 13. Further argued because the charge sheet was not amended the conviction accrued from the defective charge sheet therefore sentence and judgment also become defective. In support cited a case of Mashaka Bashiri Vs R Criminal Appeal No. 242 of 2017 pages 10,11,12,13, and 14. He argued on the issue of being delayed to being brought to the court, the offence was committed on 2/08/2019 and he was brought before the court on 18/02/2020 a delay of 6 months, contrary to section 32 of the Criminal Procedure Act and Article 13(6) of Constitution as to the right to be heard. On 1st and 2nd grounds Argued search was conducted contrary to law. Faulted, a search was conducted in his absence, with the presence of the victim, 10 cell leaders and a police officer. Faulted further that, his wife was in the house however she was not brought before the court to testify. On the third, fourth and fifth grounds argued, no one identified him to be involved in the commission of theft in the victim's shop, no direct evidence on the same, and the stolen item was not identified by the victim. Furthermore, nothing was tendered as an exhibit to prove ownership of the stolen properties. On 7th ground argued, victim claimed to be a businessman but he did not tender any evidence to show him as a businessman, or any receipt to show he owned the claimed stolen items. Therefore, the offence was not proved reasonable doubt. On the sixth ground faulted that his evidence was not considered no caution statement was taken before convicting him, and no reasons were analyzed in the judgment, contrary to section 312(1) of the Criminal Procedure Act, he prayed to this court to consider his appeal and release him from the custody. In reply, on the variation of amount stated in the evidence and charge sheet, Ms Naomi State Senior Attorney considered it to be a typing error. In justifying the error argued, PW1 on page 9 of the trial court proceeding testified the amount to be 2,275,000 while the in charge sheet 5 was 1,175,000. However the total value shown in the charge sheet is 12,410,000 the same value also is also shown by PW1 on page 2 of the proceedings. On the issue that, he was delayed in being brought to the court, faulted that, there was no delay. It is true that the offence was reported the same day, however after being reported, it was brought before the court, the accused was not found, and he was arrested on 21/09/2019, one month later, because the offence involved more than one accused the investigation was ongoing, the accused No. 4 was arrested on 27/01/2020, and on 12/02/2020 all accused were brought before the court. That investigation was completed within 15 days. Section 23 cited by the appellant says the accused should be brought before the court as soon as practicable, argued 15 days is considered to be practicable. In support of the argument cited in the case of Ally Athuman Vs R Criminal Appeal No. 151 of 2021 CAT Arusha, the accused was delayed for 21 days, court considers it reasonable based on the circumstances prevailed. On the issue that the search was conducted in his absence, argued, the search was made under emergence as per section 42(l)(b) of Criminal Procedure Act Cap 20 RE 2019 the evidence of PW1 and PW10 on pages 9 and 36 respectively shows the search was made in presence of ten cell leader, PW5 and in the presence of her wife the trouser was found and identified with special mark No.4, and the said form was admitted before the court without objection. Argued failure to cross-examine means admission, in support of argument cited a case of Nyerere Nyangue Vs R Criminal Appeal No. 67 of 2010 CAT Arusha. On the argument that, the wife was not called to testify faulted that, the wife is a non-compellable witness against the husband as per section 130(2) of the law of Evidence Act Cap 6, further, no number of witnesses is required to prove the case. The respondent agreed that, it is true that no eye witness witnessed the stealing but the circumstantial evidence tendered by PW2, PW3 and PW4 proves none committed the said offence but the appellant. PW2 on pages 11,12, and 13 in the trial court proceedings testified to have seen the appellant on the material day 1/08/2019 during night, 10 meters near a broken shop taking the parcel. PW3 testified to take the appellant to his car from Namanga to Arusha, the appellant was with language having trousers Cadet and shoes. PW4 saw the appellant goes to Kwamtoro with cadet jeans and trousers. One trouser was found at the appellant's house and it was identified by the victim. Argued the circumstances behind connecting the appellant with the offence herein. In the issue that the victim did not issue a business license, argued it is immaterial on proving the offence. However, if the appellant found it to be material he could cross-examine the victim. On the third, fourth and fifth that evidence was hearsay argued, PW2, PW3 and PW4 witnessed as previous stated. On the issue that a search was conducted in his absence, faulted that, the stolen property was found in his house, considered to be constructive possession, in support of the argument cited a case of Moses Charles Deo Vs R TLR 1987 page 134. The issue that the appellant evidence was not considered on the issue of ALIBI, argued the defence was not considered because no notice was issued before the court contrary to Section 294 of Criminal Procedure Act Cap 20 RE 2019. The respondent faulted that the judgment was proper as per section 312 (1) and there is the point of determination, referring to pages 8,9,10,11 and 12. 8 On the issue that no search warrant and no receipt were issued in the search. Argued, the search was under emergency therefore no need for a search warrant as per section 42 of the Criminal Procedure Act Cap 20 RE 2019 and argued it is a legal position that when the search certificate was tendered with no objection there is no need of issuing receipt, in support of the argument cited a case of Paapa Olesikadai Vs R Criminal Appeal No. 47 of 2020. The respondent argued all grounds to have no merit and pray this court Having gone through the evidence of the trial court and the appellants' submission drawn from 7 grounds of appeal, 5th and 7th grounds look similar and will be analyzed together, the rest will be treated as per the appellant's submission. On the 5th and 7th grounds, as to whether there is variation between the charge sheet and evidence which can affect the conviction of the accused. Visiting at page 9 on the evidence of PW1 in trial court proceedings and charge sheet I agree with the appellant that there is variation, however, the said variation does not go to the root of the case. In support of his argument a case of Dickson Nsamba Elia Shwapata Vs R Criminal Appeal No. 92 of 2007, page 7 that, "In evaluating 9 discrepancies, contradictions and omissions, it is undesirable for a court to pick out sentences and consider them in isolation from the rest o f the statements" In my view the discrepancies was due to a typing error, taking into consideration that the total value in a charge sheet and the total value testified by PW1 are the same. It is a normal discrepancy which cannot affect the conviction. As it was further stated in the case of Dickson Nsamba Elia Shwapata Vs R supra that normal discrepancies do not corrode the credibility of parties' case. Material discrepancies do. Issue that prosecution delayed for six months to bring the appellant before the court. Going through the court record, accused committed an offence on 1/08/2019 and was arrested on 21/09/2020 and was brought before the court on 12/02/2020, the respondent claimed that the investigation was not complete, and the matter involved more than one accused, the last accused was arrested on 27/01/2020. I agree with prosecution side that, the delay was reasonable considering the nature of the case which involve more than one accused. In the 1st and 2nd grounds that search was conducted contrary to the law and it was conducted in his absence, but in the presence of the victim, 10 cell leader and appellant's wife, however the said wife was not 10 called to testify. The respondent faulted that, the search was under emergence, made under section 42(l)(b) of the CPA Cap 20 RE 2019 and faulted that, the stolen property was found in his house, considered to be constructive possession, in support of the argument cited in the case of Moses Charles Deo Vs R TLR 1987 page 134. The general rule is any search must be done with a warrant however in case of emergency no search warrant is issued section 38 of CPA RE 2019. Going through the court record it is clear that the offence was committed on 01/08/2019 and the search was conducted on 02/08/2019 to my view the search was made under emergency which is justifiable under the provision of section 42 of CPA. Considering the search was made the next day. In support of this view, I wish to reproduce the provision of section 42 of the CPA. 42.-(l) A police officer may- (a) search a person suspected by him to be carrying anything concerned with an offence; or (b) enter upon any land, or into any premises, vessel or vehicle, on or in which he believes on reasonable grounds that anything connected with ii an offence is situated, and may seize any such thing that he finds in the course of that search, or upon the land or in the premises, vessel or vehicle as the case may be— (i) if the police officer believes on reasonable grounds that it is necessary to do so in order to prevent the loss or destruction of anything connected with an offence; and (ii) the search or entry is made under circumstances of such seriousness and urgency as to require and justify immediate search or entry without the authority of an order of a court or of a warrant issued under this Part. Despite the fact that the search was made under emergency as above the seizure certificate was not supposed to be issued. However, it is my view that the appellant's wife who was in possession of exhibit trousers claimed to be stolen supposed to be considered a key witness to prove that the trouser was seized from the appellant's house. This makes the 12 ownership of the exhibit questionable. See the case of Said Hemed v. Republic [1987] TLR 117 which held that, it is the duty of the prosecution to prove beyond reasonable doubt that the things were seized from the accused person. The position insists on proving ownership of the things seized from the accused person whether were under actual or constructive possession. In the instant case, the prosecution relied on one trouser seized in the appellant's house as constructive possession, the trouser was seized in the hand of the appellant's wife, and the victim claimed to identify the trouser through a special mark. Considering that the appellant was a businessman buying the stolen item and was supposed to be issued with a purchase receipt no receipt was tendered by the victim to show ownership of the stolen properties. Despite the respondent's faulted that, that fact was not necessary to prove the offence, in my view, it was important to prove the ownership of stolen properties belonged to the victim. This was not done at all. Going through trial court proceedings PW5 and PW10 on pages 20 and 36 respectively testified to have participated in the search of the 13 appellant's house on 02/08/2019 and to have signed the search warrant on the same day, PW6 testified to participating in the search on 01/08/2019, and the certificate was tendered in page 37 of trial court proceedings. During submission in this case respondent argued the search was not issued because was made under an emergency. The proceedings show Search warrant was issued and signed by Faraja William, Nuru Hamadi and Inspector Lameck but no receipt was issued to acknowledge the ownership of the seized item. The police investigators failed to comply with the mandatory provisions of section 38 (3) of the Criminal Procedure Act, Cap 20, that anything seized as per section 38(3) shall be issued with a receipt acknowledging the seizure of the thing, the receipt to be signed by the occupier of the premises or his near relative or other person for the time being in possession or control of the premises, and the signature of witnesses to the search, if any. I expected the appellant's wife to sign a search warrant and be issued with a receipt to acknowledge the seizure of the item and to be called to testify as to the seizure of the item found in her possession. The reasonable doubt raised by the accused needed to be cleared by the 14 prosecution. The position is supported in the celebrated case of Pascal Yoya @Maganga Versus Republic, Criminal Appeal No. 248 of 2017(Unreported), it was held that: - "It is a cardinalprinciple o f criminal law in ourjurisdiction that, in cases such as the one at hand, it is the prosecution that has a burden o f proving its case beyond reasonable doubt. The burden never shifts to the accused. An accused only needs to raise some reasonable doubt on the prosecution case and he need not prove his innocence". The evidence related to the search and identification of the exhibit tendered before the court found in the house whereby the respondent claiming the wife witnessed the seizure would add weight to prosecution evidence if the wife was called to prove that the item was seized in the appellant house considering that no seizure certificate or receipt was issued. In the case of Boniface Kundakile Tarimo v. R, CriminalAppeal No. 350 o f 2008 (unreported) it was held that: "So, before invoking section 143 o f the TEA regard must be to the facts o f a particular case. I f a party's case leaves reasonable gaps, it can only do so at its own risk in relying on" 15 Extracting from the case of Boniface Kundakieli Supra, I consider that in the absence of a seizure certificate or receipt acknowledging the seized item, the wife was to be summoned as an important witness filling in gaps in a particular case or in a better position to explain some missing links in the case to testify that the exhibit comes from nowhere by the appellant house. I am aware that, the general rule under Section 130(1) of the Law of Evidence Act Cap 6 is the wife is not compelled to testify against the husband, however, Section 130(2) (b) lays down an exception as;- 130.-(1) Where a person charged with an offence is the husband or the wife o f another person that other person shall be a competent but not a compellable witness on behalf o f the prosecution; subject to the following provisions o f this section. (2) Any wife or husband, whether or not o f a monogamous marriage, shall be a competent and compellable witness for the prosecution- (3) ..................................................................... - .................................................... 16 (b) in any case where the person charged is charged in respect o f an act or omission affecting the person or property o f the wife or husband, or any o f the wives o f a polygamous marriage o f that person or the children o f either or any o f them. Based on the above provision the wife was competent and comparable to testify in this case. I Agree with the respondent that, no particular number of witnesses is required to prove any fact as per section 143 of the Evidence Act, Cap 6 R.E. 2019, however, the law is very clear, where a crucial important witness who is within reach is not called to testify in court, failure of which may entail court to draw adverse inferences. The position is supported by the case of in the case of Aziz Abdalla Vs. Republic [1991] TLR 71. Which was also cited by Justice Mkuye, Korosso, and Kihwelo In their decided case of Omary Hussein © Ludanga Hashimu Abdallah @ Simba Criminal Appeal No. 547 OF 2017 page 15 has this to say. "Much as we are aware that in terms o f section 143 o f the Evidence Act, Cap 6 R.E. 2019 no particular 17 number o f witnesses is required for the proof o f any fact, the taw is very dear where a crucial witness who is within reach is not called to testify in court, failure to call such material witnesses entails the Court to draw adverse inferences where such witnesses are within reach but are not called without sufficient reason being shown by the prosecution". Based on the fact that the wife who was in the search was conducted with a search warrant and no receipt was issued to the wife to acknowledge the ownership of the seized item, the wife was a competent witness and capable of being compelled and was not called totestify on seizer of the tendered exhibit, this court drew an inference that, the offence was not proved beyond reasonable doubt. On the 3rd and 4th grounds that, the appellant was not identified to have committed a crime no one witnessed him committing a crime. The respondent faulted that PW2, PW3 and PW4 identified the appellant. PW2 on pages 11,12, and 13 in the trial court proceedings testified to have seen the appellant on the material day 1/08/2019 during 18 the night 10 meters near a broken shop taking the parcel. PW3 testified to take the appellant to his car from Namanga to Arusha and PW4 to have bought a trouser from the appellant. Going through the court file pages 10-14 of trial court proceedings, PW1 testified that knowing the accused used to visit his shop without buying anything, than on material day morning when entering her shop found the chair inside his shop on the table. The roof was open and things were stolen. PW5 police on page 23 testified to have inspected the scene of the crime and found the wall was drilled and open so such an adult person could pass. Going to the trial court file the sketch map shows they drilled from the wall, the evidence contradicts with one of the victim that, the roof was drilled and opened. PW2 bodaboda rider testified when he was on the way during the night to pick up his customer, he met two people one carrying a big parcel and the other walking behind the one holding the parcel, identified by the voice and face of one working behind without the parcel to be appellant herein, who told him to carry his luggage to somewhere but refused because he was going to pick up a customer. PW3 picked him up from his bus he was with a parcel having fabric. 19 Despite the fact that the offence was committed during the night it is hard to find eyewitnesses as most people under asleep, but circumstantial evidence surrounding the matter needs to be sufficient and directly connected to the guiltiness of the appellant. The PW2 testified that the parcel was taken by someone unidentified and not the appellant. PW3 claimed to have boarded the appellant in his car with big language, None claimed to see the accused to have committed the offence. On the 6th ground, no caution statement was taken before convicting the appellant and no reasons were analyzed contrary to section 312 (1) of CPA. The respondent faulted that judgment were analyzed. Going through the record from the court file it is true no caution statements were taken by the prosecution. However, it is my view that no rights of the accused as to taking his evidence were undermined. Considering that a caution statement aims to protect the accused from the moment of arrest and throughout the interrogation process. Going through the trial court proceedings nothing was infringed. That being the case, I conclude that the offence was not proved in the required standard. I, therefore quash and set aside the judgment of the trial court on conviction and sentence imposed against the 20 proved in the required standard. I, therefore quash and set aside the judgment of the trial court on conviction and sentence imposed against the appellant. The appellant be released from prison unless lawfully held for any other lawful cause. It is ordered accordingly. D at ARUSHA this 11 day of July 2024. JUDGE OF HIGH COURT 11/ 06/2024 21