MISHEKI AND ANOTHER final

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA CRIMINAL APPEAL NO. 18628 OF 2024 CASE REFERENCE NO. 202407072000018628 ((Arising from District court of lleje at ltumba, Criminal Case No. 14/2023) MISHEKI SIMITON MWASHILINDI…………………………………1ST APPELLANT ENOCK WILSON MASEBO....................................................... 2nd APPELLANT VERSUS THE REPUBLIC ........................................................................... RESPONDENT JUDGMENT 14th & 17th February 2025 NONGWA, J. The two appellants named above together with two others not part of this appeal were charged for the offence of burglary, theft and being found in possession of goods suspected to have been stolen or unlawfully acquired contrary to sections 294(1)(b)(2), 258(1)(2) (a) read together with section 265 and section 312(2)(b) of the Penal Code Cap 16 R.E 2022. The particulars of the offence were that on 17th Day of April 2023, at night hours at Msiha Village within Ileje District in Songwe Region the appellants unlawfully did break and entered into the dwelling house of one Hussein s/o 1 Mohamed Sharif and did steal one Flat Screen Television of 41 inches make Star X valued at TZS 700,000/= and one Radio make Sea piano valued at TZS 100,000 properties of Hussein s/o Mohamed Sharif. They pleaded not guilty. During trial, prosecution side summoned three witnesses; Hussein Mohamed Sharif (PW1), E.4106 D/Sgt. Cuthbert (PW2) and Pauli Mwampashi (PW3). They also tendered one flat screen television and one radio collectively marked as exhibit P1. On defense, the appellants exercised their right under section 231(3) of the criminal Procedure Act, Cap 20 R.E 2022 as they are recorded to have nothing to state as defence. It was PW1 testimony that on 17th day of April, 2023 around 21:00 night hours while at the center of Msia Village met with the appellants hailed each other and he proceeded with his business. Around 22:00 night hours returned back home only to find his flat screen television and radio commonly known as Subwoofa missing. He reported to the police and to his neighbors while continuing with private investigation. On 22nd day of April, 2023 got information that people are selling the items at Ikumbilo Village within Chitete Ward, Ileje District. Upon arrest they admitted to have broken 2 into the house and stole the items. PW1 also identified his properties exhibit P1. PW2 interrogated those who are not part to this appeal and they explained how they got the items similar to what PW1 stated. Upon full trial the appellants were convicted on the first two counts and sentenced to ten and five years respectively, sentences were to run concurrently. Aggrieved they have filed appeal on the following grounds: one; that the trial court erred in law when convicted and sentenced the appellant without taking into account that the prosecution failed to proof its case in both counts as per law. Two; the trial court erred in law when convicted and sentenced the appellants without taking into account the doctrine of recent possession of the stolen properties of PW1 that was not found with the appellants. Three; the trial court erred in law when convicted and sentenced the appellants without taking into account that failure of the appellants to make defence was not the warrant of convicting them as in criminal trials the burden of proving the charges lies on the prosecutions not defence. Four; the trial court erred in law when convicted and sentenced the appellants relying on hearsay and suspicious evidence from PW1 and it failed to evaluate the evidence of PW2 DW3 and DW4 which in fact did not 3 establish the guilty of the appellants. Five; trial court erred in law when convicted and sentenced the appellants an excessive sentence against section 170(1)(a) of the CPA cap 20 RE 2022. Since none of cautioned statements tendered and no witness testified that appellants confessed and showed where they sell or hide PW1’s properties. They prayed that the appeal be allowed conviction be quashed the sentenced be set aside and they be set free. When the appeal was placed for hearing, the appellants appeared in person, unrepresented. The learned State Attorney Mr. Elibariki Mpinga, represented the respondent, Republic. When called upon to argue his appeal, the appellants, standing for themselves did not have more than to request for the adoption of the five grounds in the petition of appeal earlier filed, in its totality suggesting that the prosecution side did not prove the case beyond reasonable doubt. They opted to hear the response of the Republic. At the very outset of his response, the learned state attorney maturely, supported the appeal. His concession to the appeal was not nailed exactly on all five grounds of appeal but on the point of law of which was disposing all other grounds. The learned State Attorney submitted that, after 4 going through the appeal grounds and record, the Republic was hesitant in convincing the court that the offence was proved beyond reasonable doubt, as such he found wise and prudent to concede with the appeal. It was the submission by the state attorney that upon going through the records, found no certificate of seizure that was tendered proving that the stolen properties were found with the accused persons, the attorney supported his contention with the case of Kulwa Ramadhan Nassoro vs Republic Criminal appeal no 94 of 2022 - HC Morogoro, at page 18, that failure to tender certificate of seizure creates doubt on part of the prosecution case. Another issue he stated the identification of the exhibit TV, that the victim PW1 named the property stolen to be TV make Star without details as star TV Black are so many. He sheltered his argument with the case of The issue of stating the serial numbers, in Gift Briton @Mwakasunga and Another vs Republic, Criminal Appeal No. 534 of 2021 [2024] TZCA 1258 (11 December 2024; TanzLII) the court gave direction as to how such identification of stolen property should have been done. It is an elementary position of law under section 3(2)(a) of the Evidence Act [Cap 6 R: E 2022] that, in criminal cases, the burden to prove the 5 allegation by the prosecution is beyond reasonable doubt. The phrase ‘prove beyond reasonable doubt’ was discussed in the case of Magendo Paul and Another v. Republic, [1993] TLR 219 where the Court stated as follows: ‘For a case to be taken to have been proved beyond reasonable doubt its evidence must be strong against the accused person as to leave a remote possibility in his favour which can easily be dismissed.’ I have given consideration of the respondent’s submissions, the shortcomings on part of the prosecution evidence as stated by the state attorney are clearly notable from the proceedings. The reasoning by the trial magistrate is that the appellants mentioned where the stolen properties were taken and the same were recovered and these two were seen at Msia village few hours before the stealing then they are the ones who broke into the house and stole the properties. Now since there was no direct evidence of appellants breaking in the house and steal the items, the court based its decision on the principle of recent possession. However, no certificate of seizure was produced in evidence and the state attorney is of the view that the conditions for proving recent possession were not met. In Gift Briton Mwakasunga and another vs Republic (supra) the Court of Appeal 6 discussed the conditions for the principle of recent possession to apply that are; first, that the property was found in possession of the suspect; Second, that the property is positively the property of the complainant; third, that it was recently stolen from the complainant and lastly, that the stolen thing in the possession of the accused constitutes the subject of the charge against the accused. It must be the one that was stolen or obtained during the commission of the offence charged, same position in Alex Joseph Kasharakoro vs Republic, Criminal Appeal No. 156 of 2013 [2014] TZCA 2175 (3 March 2014; TanzLII) and Joseph Mkumbwa & Anmother vs Republic, Criminal Appeal No. 94 of 2007 [2011] TZCA 118 (23 June 2011; TanzLII). According to the provision of section 38(3) of the CPA, it is mandatory that the officer seizing the property must issue a receipt not only acknowledging that he has seized the property but also bears the names and signatures of those present during search and seizure, the question is, did the police fail to issue a certificate of seizure or no property was seized from the appellants. More in this matter the complainant did not give the details of his Television screen, the State Attorney has conceded on this that the complainant did not describe the properties, that it the Television screen 7 make Star X black in colour by stating its special mark or description. Through the records, nowhere the complainant described the television screen. Evidently, at the trial court the prosecution side failed to prove all the conditions laid above hence supported this appeal. It has been a practice of courts to accede to the republic’s view when the Republic admits to the grounds of appeal unless there are sufficient and serious reasons to hold otherwise. In the case of Abel Kayusi Mchengesi & Germanus Venus Libweha vs Republic, Criminal Appeal No. 39547 of 2023 & 12166 of 2024) [2024] TZHC 8280 (28 August 2024; TanzLII) Mruma J. stated; ‘... in my opinion where the Republic (i.e. the prosecution) concedes at the appeal level that it did not have sufficient evidence to support the conviction during the trial, unless there is any good, sufficient and serious reasons, to hold otherwise, court must accede to the Republic or complainant's view. To hold otherwise may make put the impartiality nature of courts in jeopardy.’ The shortcomings noted by the prosecution suffices to dispose of the appeal, as stated earlier dwelling on other grounds of appeal will only amount to a wasted effort. 8 Consequently, I allow the appeal and nullify the proceedings, quash the conviction and set aside the sentence knotted on the appellant. I further direct that the appellant be released from prison custody unless he is held there for some other lawful cause. V.M. NONGWA JUDGE 17/2/2025 Dated and Delivered at Mbeya this 17th February 2025 in presence of the Appellants and Mr. Elibariki Mpinga State Attorney. V.M. NONGWA JUDGE 9