CRIMINAL APPEAL CASE NO 82of 2023 MOHAMEDMUDI NEWNEWNEW

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MTWARA SUB-REGISTRY AT MTWARA CRIMINAL APPEAL CASE NO 82 OF 2023 <1 J (Originating from Criminal Case No 81 of 2022 in the District Court o of Newala at Newala) MOHAMEDI ABDALLAH @MUDI................ ,. APPELLANT VERSUS THE REPUBLIC ....... .......................... .........RESPONDENT JUDGMENT Date of last Order: 3'! November 2023. '? Date ofJudgement: 22th November2023 LALTAIKA, J. V J- The appellant herein, MOHAMEDI ABDALLAH @MUDI was arraigned in the District Court of Newala at Newala charged with two counts ,4 £ "•$ namely 1. House breaking c/s 294(1) (a) of the Penal Code Cap 16 RE 2022 and 2. Stealing c/s 258 and 265 of the Penal Code (supra). In the alternative, the appellant was also charged with Being in possession of stollen property c/s 312(1) (b) of the Penal Code (supra). Page 1 of 9 When the charge was read over and explained to the appellant (then accused), he pleaded not guilty. This necessitated the conducting of a full trial. To prove the allegations, the prosecution paraded 6 witnesses and tendered 2 exhibits. Having been convinced that the prosecution has proved the case at the required standard, the learned trial magistrate convicted the appellant as charged. He proceeded to sentence him as follows 1st count 5 years jail term, 2nd count 3 years jail. The sentences.Mere ordered to run concurrently. Dissatisfied, the appellant has appealed to this court by way of a petition of appeal containing 6 grounds. I take the liberty to reproduce them as hereunder: 1. That, the prosecution side didn't prove its case beyond reasonable doubt.: 2. Thafthetria! court having failedproperly to examine, evaluate, and analyse evidence on record. 3. That, the trial court erred in law and in fact by convicting and sentencing the appellant as it did, basing on unreliable evidence. 4. That, the trial magistrate erred in law and in fact in failing to make a finding that the evidence on record do not establish the offence charged. Page 2 of 9 5. That, the manner in which the proceedings at the trial court were conducted, was irregular or/ and improper. 6. That, the manner in which the possession was wrongly invoked to implicate the appellant with the offence charged. ..... When the appeal was called for hearing on 3rd of November 2023 the appellant appeared in person unrepresented. The respondent Republic, on the other hand, appeared through Mr. Steven Aron Kondoro, learned State Attorney. ■ _ K, ’''■■•'A::., L-J Not being learned in law, the appellant had nothing substantial to add to his grounds of appeal. He. however, reserved his right to a rejoinder in case the need arose. That opened the way for the learned State Attorney. ’'Sy. On taking the stagez Mr. Kondoro announced boldly that he objected the appeal. He proceeded to address the first group of grounds, stating fKJ that the prosecution case was not proved beyond reasonable doubt. 4^, Referring to page 2 of the trial court's judgment, Mr. Kondoro highlighted that PW1, an eyewitness named Lightness Rumisha Meela, testified that on 13/08/2022 around 21:30 (3:30 and 4:00) night hours, she returned home from conducting census. Page 3 of 9 Upon arrival, she discovered a broken door lock and missing properties, including a TV, a laptop, a mobile phone, and cash. The husband of PW1 reported the matter to the police on the next day. The mobile phone was later identified as belonging to PWl's husband and admitted asrfjlbit KM1. .A. Mr. Kondoro emphasized that the testimony aligned^ViJri that of PW6, X a police officer, who stated that he was ordered to arrest the accused person found with a stolen phone. The seized phone yvas identified as one of the stolen properties, and a seizure certificatexvas admitted as Exhibit KM2. Mr. Kondoro concluded that there was no doubt that the appellant committed Xi. the theft. f "V He continued^yXreferencing the testimony of PW3, Mukhsini Mohamedi Said;who:stated that the appellant brought him the phone and t requested it to be unlocked. PW4, another technician, testified that he ,x%-r received'the phone from the appellant, "flashed" it, but the appellant failed ttrpay the agreed amount. The technician called the informer, who identified the phone as his property stolen from his house and recognized the appellant as the thief. The appellant was subsequently reported to the police and Page 4 of 9 arrested. Mr. Kondoro argued that based oh the evidence, it was sufficient to conclude that the appellant was the perpetrator of the stolen property. The learned State Attorney reiterated the general principle that the prosecution is required to prove the case beyond reasonable doubt .and , % y emphasized that being found with stolen property and an inability to explain h A L':/J its acquisition indicated the appellant as the perpetrator.^r. Kondoro prayed for the dismissal of these grounds of appeal. z Shifting to the 6th ground, Mr. Kondoro referred to the case of ABDAHAM SPIA @MUSHI AND 2OTHERS V. R. [2017] TLR 5. He presented the court with the elements of the doctrine of recent possession and argued that, consideri|gThe testimonies of PW1 to PW4, the important elements were met. Mr. Kondoro informed the court that they had already addressed thejssbejraised in the first ground of appeal, focusing on the rKJ inability to prove the case beyond reasonable doubt 4( X <The learned State Attorney explained that PW1, Lightness Rumisha Meela, had testified, as indicated on page 2 of the impugned judgment, describing the phone as INFINIX SMART FIVE in black. She also provided the EMEI numbers 350536334254403 and 350536334245411, and the Court Page 5 of 9 admitted the same as an exhibit marked as KM1. Mr. Kondoro asserted that, in this regard, the matter had been adequately addressed. Concerning the assertion that the appellant was not found with the phone, Mr. Kondoro pointed out that on pages 3 and 4, both PW3 d®ljBW4 mentioned the appellant as the individual who brought the phone/to them. He expressed the request for the grounds to be dismissedfHe'concluded by praying for the entire appeal to be dismissed. z The appellant, in a brief rejoinder submission, stated that the exhibit was intended to demonstrate that the phone belonged to him. He argued that the description provided was inadequate, as he only claimed it was a black phone without offering further details. He mentioned requesting to be shown the receipt, but^this request was not fulfilled. The appellant expressed his lack of legal expertise and urged the acceptance of his ground. & Vt .8 He further contended that the technician ("fundi simu") was not x. C infojmed^about the EMEI; instead, only the colour description was provided. He emphasized that the EMEI was not mentioned before it came to court. In conclusion, the appellant prayed for the appeal to be allowed, leading to his release. Page 6 of 9 X have dispassionately considered the grounds of appeal and the rival submissions pursuant to the same. I must state outrightly that criminal law is a unique area of law that touches upon the liberty of an individual. It is also an area that requires strict adherence to the teij^’of fairness. f It appears that the prosecution's case relied heavily^tne testimonies of PW1 (Lightness Rumisha Meela), PW3 (Mukhsjni flohamedi Said), and PW4 (fundi simu/technician). PW1 testified abotdtthe theft and identification of the stolen mobile phone. However, there are inconsistencies in the testimonies regarding how the phone was identified and connected to the appellant. </ The phone (ExhibitKMl) and the seizure certificate (Exhibit KM2) were ' w3* pivotal pieces qf'eyidehce. The prosecution argued that the phone was stolen f- KJ and later, found in the appellant's possession. However, the appellant contended’that the description of the phone was inadequate and that the EMETnumbers were not initially mentioned. I totally agree with the appellant that the IMEI description came late and even if we assume it didn't, the gap between the stolen item and the identity of the alleged culprit is too wide. Page 7 of 9 To narrow the above gap, the prosecution opted to invoke the doctrine of recent possession as an alternative count. I don't think that was necessary. To invoke this doctrine, the prosecution must prove that the appellant was in possession of the stolen property shortly after the theftand that he failed to explain how he came to possess it. . The evidence presented by PW3 and PW4, who daimed the appellant brought the phone to them, lacked sufficient corroboration and detail to A conclusively link the appellant to the theft. / I, J The inconsistencies in the witnesses' testimonies and the lack of detailed evidence regarding the identification and possession of the phone cast doubt on the prosecution's case. The trial court failed to Critically examine these inconsistencies and the reliability of the evidence. v AX aM In the upshot, I allow the appeal. I hereby quash conviction and set aside the- sentence. Further, I order that the appellant, MOHAMEDI ABDALLAH @MUDI be released from prison forthwith unless he is being w held for any other lawful cause. Page 8 of 9 It is so ordered. 27th day of November 2023 in the presence of Mr. Melchiori Hurubano Page 9 of 9