20151127 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA AT MWANZA. CRIMINAL APPEAL NUMBER 77 OF 2015 (Original Criminal Case Number 44 of 2014 of the District Court of Misungwi District at Misungwi before Mwambapa Esq DRM) MASHAKA MASUNGA & 3 OTHERS .......... APPELLANTS

VERSUS THE REPUBLIC ...................................... RESPONDENT 16.11.2015 & 27.11.2015 S.B.M.G. Matupa, J. JUDGEMENT This is an appeal that emanates from the decision of the District Court of Misungwi, sitting at Misungwi, where the appellants were charges of two counts of conspiracy to commit an offence and cattle theft, contrary to sections 384, 265 and 268 respectively of the penal code. It was alleged in the particulars of offence that on the 9th day of June, 2014 the · accused persons did jointly and together conspire to steal cattle. It was further alleged that on the night of the said day at Mwasonge village, the appellant did jointly and together steal 1 \ 13 heads of cattle, valued at shillings 3,900,000/= the property of Veridiana d/o Kaliyaya. The facts of this case are as follows. The complainant Veridiana d/o Kaliyaya aforesaid had a head of 13 cows all of which she marked "NK". It was alleged that at about 0200 in the morning of the fateful day, the complainant woke up only to find that the whole head of her cattle comprising 13 cows was missing. She called her son Emmanuel PW2 and informed him about the loss. The latter raised an alarm. Villagers responded. The complainant described her lost cows as having a mark "NK" on their respective hind legs. They started to follow up the lost cattle. One of their number noticed tyre marks nearby, that indicated that

a motor vehicle had made a turn around at the place. It would also appear that one of their numbers informed the police at Misungwi about the theft. In the meantime, the police who had responded to the information went about patrolling. While in the patrol, they were tipped off that there would be contraband meat at Igogo 2 that night destined for a butchery known as Mbogo's. A trap was laid at that butcher. Two persons who happened to be at the butcher at the time were put under arrest. Soon thereafter, a motor vehicle make Toyota Hiace arrived at the butcher, it was rounded up and the commuters therein were all arrested. In the vehicle there was retrieved some meat which happened to be un skinned. It transpired that the meat had marks replying that provided by the complainant. The meat was seized; the persons in the bus and those in the butcher were arrested and were sent to Misungwi police station. As a result of an investigation that followed, the appellants together with two others who were found in the Butchery were charged with two counts of conspiracy to steal and cattle theft. At the conclusion of the trial, the appellants were convicted of the offence of cattle theft but were acquitted of that of conspiracy to commit an offence accordingly; they were each sentenced to a term of imprisonment of nine years. The accused person who was found in the butchery was

acquitted. 3 His colleague who was with him in the butchery died before the conclusion of the trial. It doesn't appear that he was charged. Aggrieved with the decision of the trial Court, the appellant has come to this court in protest of their innocence. They have filed separate memoranda of appeal. However, they all seemed to converge on the following grounds, that is to say, they all impeached their respective cautioned statements as they were irregularly recorded out of time and that they were not voluntary. That the identification of the recovered cattle was insufficient. Three, they have complained that there were material contradictions as regard the number of cattle stolen, the number of those recovered and those slaughtered. Four that the prosecution did not explain correctly, the manner and places the appellants were arrested. Five the trial court did not consider the 3rd Appellant's (Gatson Maximillian) defence. This appellant also complained that the confiscation order in relation to the car which it is alleged that, it was seized with the meat was improper. Six the Court shifted the burden of proof to the 4 appellants and that the Court failed to evaluate the demeanour of the Witnesses. Before this Court, all appellants were not represented by counsel, they fended for themselves. The Republic the respondent herein was represented by Ms Ajuaye Bilishanga, Senior

State Attorney. All appellants were reminded of their respective grounds of appeal in Kiswahili, they adopted them. The appeals were consolidated. It was ordered that for ease of reference, Aaron Zakayo shall be referred to as 1st appellant, Omary Rashid as the 2nd appellant, Gatson Maxmillian as the 3rd appellant and Mashaka Masunga 4th appellant respectively. Having adopted their respective grounds of appeal, the appellants started to submit in accordance with the order as aforesaid. To start with Aaron Zakayo, he invited the court to treat PW8 with caution. He invited the Court to treat as suspect, his conduct of staging arrest alone, given that he had prior information on the impending arrest. Yet he could not 5 arrange independent witnesses. Finally he took issues with the certificate of seizure which was tendered in court without accompanying it with the exhibit seized. The 2nd appellant one Omary Rashid complained that he was not adequately identified. He submitted that any evidence that sought to describe him was unsatisfactory, hence had should be dismissed, as admission of such evidence would be in contravention of section 52 of the CPA. He also took issues with the seizure order contending that it did not comply with section 38 of the CPA. He further contended that the officers of Igogo Police station that issued it were not called to testify on it. The 3nd appellant

Gatson Maximillian sought to impugn his cautioned statement for the reason that the trial magistrate having conducted an enquiry following his repudiation of it; he admitted the statement without assigning any reasons. And lastly, the 4th appellant Mashaka Masunga joined hands with the foregoing appellants as regards the impugned cautioned 6 7 . statements. He also impeached the evidence of PW8 as being unreliable. In reply, the learned Senior State Attorney supported the conviction contending that one; the complainant adequately identified the cows with distinct marks. She contended that the evidence incriminating the appellant is impeccable as the said appellants were arrested ready handed with the stolen meat which as it were, was unskinned, with the marks provided by the complainant on the respective parts of the recovered meat. Going through the grounds of appeal as preferred by the appellants, I am satisfied that given the nature of the present case and this appeal, it will serve practical purpose to deal with the grounds generally. It is apparent that the appellants do not dispute the fact that the complainant's cows were stolen. The major contention by them is their involvement in the theft; in short they are trying to distance themselves from stealing the cows. In resolving this appeal we are therefore enjoined to establish if the evidence on record connects them with

the 7 stealing. The gravamen of the matter is whether in fact the appellants were all arrested on the fateful day in the circumstances as claimed by PW8. We have to approach the appeal in that perspective. The circumstances the appellants were arrested are described by PW8 aforesaid. According to this witness he was informed about the stolen cattle the same night of the incident at' around 3.30. He then contacted his informers about the incident, they informed him that the likely places he could recover the stolen cows could be at Igoma a~d Makuyuni Butcheries, and another butcher at Makanyenye Street at a . certain place called Mbogos. He immediately dispatched police details at the respective places. He led a detail that was destined for Mbogo butchery, at Makanyenye. As he went to the said Butchery, he found it open during that early hour. There were two people in it. They were arrested. Soon thereafter, a motor car arrived. It was an minibus. It stopped at the place. One person from the butcher, who is now deceased, 8 armed with a knife, charged forward ready for a fight. The said PW8 shot the person on the leg. They appellants were arrested and were sent to Misungwi Police station while the car and the meat were left at Igogo Police station. The appellants have urged the court to disbelieve the evidence of this witness. The appellants have contended that it is not true

that they were arrested together at Makanyenye as was claimed. Each one of them has claimed that he was arrested alone. I have considered this claim of the appellants carefully, as against the sum total of the prosecution evidence. I have considered for example the time frame of the incidence. It was at about 2.00 in the morning when the complainant realised that her cows were lost. She immediately raised an alarm. Within one hour, a trap was set and the arrest was claimed to be done. Going by PW2, Emmanuel Robert, the son of the appellant, PW3 Masumbuko Reuben, and PW4 Ngaina Kumalija are all at one that they followed up the stolen cattle, and all are 9 consistent that they saw the meat marked NK in the alleged motor vehicle. It should be appreciated that the complainant is on record that she offered identification marks for the stolen cows. I am prodded to disregard this line of evidence basically for assumed inconsistence's and failure to tender the meat in evidence. Let me dismiss the allegation on inconsistencies. As I have made a finding herein above, contrary to the proposition that the cows were not adequately accounted for, what all witnesses are saying is that whereas the stolen cows were thirteen, there were only eight cows which were recovered. Six were slaughtered and two were alive. The rest' were not recovered. There isn't therefore any inconsistence here. On the

failure to produce the meat, this was not necessary given the strict account that was provided by the prosecution. In the case of Rule Kamwana versus the republic 1972 {HCD} 157 justice Mzavas as he then was said that, production of alleged stolen property can only be dispensed 10 with when there is other cogent and sufficient evidence regarding the identification of the property and where the accused does not challenge the description given by the prosecution witnesses. In the present case the appellants are distancing themselves with the recovered meat. They cannot therefore credibly be heard to contest the description of the recovered meat, unless they wish to blow hot and cold at the same time. The only missing link is the connection between the appellants and the possession of meat. There is contention that the said PW8 should be treated as incredible. Addressing this contention we have to appreciate that the witness responded with promptitude after he received the information as regards the theft. The circumstances of the arrest are well accounted for. This witness was emphatic that he arrested all the appellants in one location. Apart from the evidence of these witnesses, there are also cautioned statements of the respective appellants. I will 11 address the flaws that happened in the cause of the interview. One such flaw is the delay in starting the interview.

The- appellants started the interview late in the· night. The delay is definitely an affront to section 50(1) of the Criminal Procedure Act, as that was done in a time beyond that is available for the investigation. Almost all appellants objected to the admission of their respective statements on the ground that the statements were extracted through the use of torture. They introduced in court PF3s to demonstrate that they were tortured. On close scrutiny, the doctor made a generic comment that they were all tortured three days previous to the medical examination. All the PF3 were dated on 16th June 2014 while the statements were taken on the 10th June, 2014. We are not told the source of this comment. Short of conjecture, the information on the date of injury may as well have been provided by the appellants. Whatever the source, with this time line, it is apparent that at the time the appellants recorded their statements the alleged torture had not occurred. 12 The procedure for exclusion of documents contravening the provisions of the Criminal Procedure Code is outlined under section 169 there under. Subsection (1) directs as follows "Where in any proceedings in any proceeding in a court in respect of an offence, an objection is taken to the admission of the evidence on the ground that the evidence was obtained in contravention of, or of the failure to comply with a provision

of this Act or any other law, in relation to a person, the court shall in its absolute discretion, not admit the evidence unless it is, on the balance of probabilities the admission would specifically and substantially benefit the public interest without unduly prejudicing the rights and freedoms of any person." In exercising its discretion whether or not to exclude a document under this section, the court must be guided by subsection (2) which outlines the seriousness of the offence, the nature and seriousness of the contravention and the extent to which the evidence could be lawfully obtained. We have considered all these guidelines, we are satisfied that the half a day delay was by far outweighed by the public interest to punish the offenders, given the commendable efforts that was made to apprehend the appellants by ambush at that late hour of the day and on 13 the circumstances explained by the said PW8. Had the trial magistrate directed himself to the law and ventured to give reasons he would have arrived at the same conclusion to admit the statements as he did. From the foregoing, I am satisfied that the appellants were all apprehended in the car with the contraband meat as PW8 intimated. They were sent to Misungwi immediately. The defence by the appellants at the trial lacks merit; it is hereby dismissed as was at the court below. I hold that the cautioned statements

were voluntary, and in terms of sections 169(1) of the CPA, I hold that the trial court exercised its discretion properly, not to exclude the statements, although it did not expressly address its powers in terms of that section. Having held that the appellants were found with the meat, there remains the issue of application of the doctrine of recent possession under the circumstances of this case. In my opinion the appellants were apprehended the same 14 • night the cows were stolen. All the witnesses are at one that the meat at the time was not yet skinned. PW1 and PW2 complainants herein, are at one that the cows had marks. Having found that much, we are of the opinion this is a case that falls within the doctrine. The evidence that the complainant's cows were in fact stolen is solid. The identification of the meat was lucidly given by the complainant. Hence, from the principle in Kamwana' case above it was not necessary to produce the meat at the trial. The appellants have not ventured to explain the possession; instead they have . sought to distance themselves from it. This court have found their respective explanations incredible as did the trial Court. To add to it is the haste in processing the meat. The evidence has it that the cows were slaughtered immediately, were cut into pieces apparently for the ease of transportation. This together with the short spell of time

between the 15 alleged theft and the recovery brings this case within the ambit of the doctrine of recent procession. In the upshot, this appeal is dismissed in its entirety. Judge 16 Date: 27.11.2015 Coram: Hon. S.B.M.G. Matupa, J Appellant: 1st present 2nd present 3rd present 4th present Respondent: M/S Ajuaye Bilishanga for the Republic B/C: Shida Mr. Ajuaye Bilishanga: This appeal is set for judgment. All appellants are present we are ready for the judgment. S.B.M.G. Matupa Judge 27.11.2015 Court: This appeal is read in chambers in the presence of all the appellants and M/S Ajuaye Bilishanga Senior State Attorney this 2ih November, 2015. S.B.~a Judge 5 17