19930205 TZHC Dar es Salaam

t. IN T BE H ~ GH COU. IT OF TJ.tNZANii-l. AT Dli.H ~S Sf.l.L!l.M APPELLh rz Jl, 11.SDICTION HIGH COU:kT Cl:H'iil'~J...1 li.PP.L.iii.L NO., 74 OF 1992 ORIGINAL ClU 1INAL C1~E NOo .§_10 OF 1990 OF THE DISTRIC:I COU.kT OF IL,~LA DISTRICT AT KIVUKONI ' . BJ:!$0RE Wo Mo Sj(QNGi-i. DISTRICT MAGISTRATE MOHAMED MAGURli' & 2 OTHERSo., o o o. o .. o.o o •• o o o • ., .APPELLANTS ~- (Original Accus~d) versus THE REPUBL!Co~oeoeooaoooooooooooo•OOooooooRESPQNDENT ' (Original Prosecutor) JUDGMENT 14S QEEE f ~ 10 B~fore the District Court of Ilala I:iatrict at Kivukoni the ' . three fppellants were charg~d with and convicted of the offence of ~respassing .on burial place c/s 127 of the Penal Code, Cap.16. /' Briefly stated the following is what happened. . On 4/2/1990 one/ Rashid Hamisi of Mbagala, Dar es Salaa.Jn died. This deceased was a relative of one Athumani Habibu (PW.l). As ·usual after the death . in qti~stion a number of people assembled for the funeral which took place on ,12;1990. On this date just after people had assembled ' . . for· the said funeral the lat appellan:t is quoted as having uttered the following words i.n.Swahili i.e. 11 Mbona mmechimba kab,uri njiani? ,Iwapo mtamzika marehemu pale _baai kaburi halitadumu·. 11 These words looeely translated in English eould mean something to the following effect i.e. 11.,Why did you make the grave along the path? If you bury the deceased there then the grave will not last." The a~sembltd people ignored the utterances and went,on with the funeral rit s a&~l. After a number of days had passed PW.l arranged to 7 have the· gr~\re properly built'up with oonorete and cement. To his . surprise howeYeP on. l't/5/90 .aomeone came to his home to say that what had_been bUi1t on the said grave had b~n destroyed. On recell!ling this information, . which naturally must have shocked him,· he quicklY. ran to the site to witness for himself what had happenedo After seeing it, he thought it a good idea· to report the matter , with a near!..y CCM Office and later the -police. He quickly got ·the he.lp of the pol~ce wh.o as.signed PWo4 B 7840 D/Sgt. Baa:thromew· to look into the matter. A.ccordingly they ?oth went to the grave site ahere this time the 2nd appellant was seen, alongside othe·r villagers "',-:7~\:;'~"'.;_:-t,:;_ . ) l., - 2 ,•• \ cleaning a path~ It is si 0nificant to mention however, that the pa.th the 2ncl a1~pella11t was workin 6 on, had been in existence even before the alleged incident., '.l'he path this appellant was work~ng on was·therefore not a new one. The only evicience ·agains-1: the 3rcl appellant is contained in the testimony of PW.4. On page 8 bf the typed copy of proceedings .PW.4 is on recur,J as submitting as follows in re-examination:-" "Your house has been built just behind the 1st accused house of where the wny you are passing towards your house from the lst accused house you have made a way there for the passine throuGh those cemetries in- the issue." The appellants wPre therefore convicted solely on what• is mentioned above. Followin[:'; thG closu,re of case fc,r the prosecution the appellants were duly,address~d in terms u_f o. 231 of the Criminal Procedure Act after which each dex:ided to keep quiet thereby leaving it upon the court to decide the case aeainst them in any manner-it would deem fit ·' and justo OnEB basic issue that calls for- consideration and decision by this court is whether the conviction of the appellants by the trial court is sounu in law. In other words can it be safely said that the case against them w~s proved beyon<.l reasonable doubt'.2 With respect the proseoution case against them was not ~)roved beyond reasonable doubto .Indeed no witness specifically testified to the effect that he/she saw any of the ~aid appellants actually destroyin 6 the grave in question. In convicting the app<::llants the trial.court seem~ to I havd relied on circumsfantial evidence i.e. since the 1st appellant made the said utterances coupled. with the· allegation that the 2nd . n and 3rd appellant made the path-throu~h the cemetries then it could .safely be inferred that the appellant Emst be the people who destroyed the g~avel With respect the trial court should not haae convicted them selely on the said utterances and the act of making the path through the cemetry without concrete evidence that these were th~ ,same peqple who destroyed the grave 1 For the benefit of the trial magistraye it is worth mentioning the four basic essential which are necessary before :oun<ling a conviction ae circumstantial evidence:- (1) The· circurastnces from which the guilt is estab1ished must be fully established, (ii) All facts must b9 cunsistent with the hypothesis of guilt of an accused· (iii) Circumstnnca.s must be of conclusive nature ·• •••• /3. ~J;p .• -) - '- (iv) The circumstances should t0 a moral certainty actually excluse ev1-;;ry hypothesis except the one proposed to be proved. A wo.rd or two about the trial court juc.gment.., .On page 3 of the said judgment the trial magistrate is recorded as saying as follo~s:- 1 "It was the same stcry tha~ came out from PW.3 for the case . who was uf different not to that say or ad<lucement of his eviu.ence to that pf "I_.;W.2 and PW.l that corroboration of - the evidence adtluced mend as to the Evil intention that these people he·.cl intended to do what had been in their mind. In that case a mens rea plus actus reus had in their mind that is what made them to <lest~oy the· g~ave as thought it to be in their mindo 11 With respect to the learn(;;d trial magistrate the above comment was n_ow-· here supported by th0 eviC.::.ence on recordo 1 t follows therefore that no actus reus nor mens rea w~s establishedl On the 2nd paragr.aph to page 3 of the judgment the trial magistrate is acain on recoru as sayinG as follows:- \ "ln this i.,_ct the Court fell very sad for what thes;e. accused dido i\s reasonable people they could be very respective people for the pluce of burial rather than what they did. Goel too is p3.rdoner to all who does livine; but for thes_~ people wno c..,_ic1. respect the burial place are seen or thought to be in.sane I am very much 0 satisfied with the prosecution that the charge they are facing has been proved. All the accuse:d are hereby convicted as charc:ed .. 11 Except for th~ last two sentences the other references made. in the above paragr~ph should not have· ~orr.ied part of the trial court . ... judgment. One would have expected this kind of references to be made when passing sentence just after hearine; the accused in mitigationJJ As sai~ above the pros~cution side,failed to prove the case against the three appellants hence their conv;tction 1 which is not supported by the Hepublic either, is certainly bad in law. The same is accoru.inGly quashed anu sentenees set .stsicle., The· appellants should therefore bo released frum prison forthwith unless they are otherwise lawfully held tharein in connection with other offences. \- Ssd .. J. H.Msoffe, PRM Ext&Dded jurisdicti,on • • • ,• • • 0 • • /4. - 4 - I Judgment delivered this 17th day of M&rch, 1993 in the presenc~ Mr. Senguji for the llepublic and in the absence of the appellan counsel for the appellantsc S gdo J., 'H. Visoffe, PRM. Extended Jurisdiction. 5/2/1993 -- This is the certified true copy_ of· the orieinaL,.