muksin ally nassoro vs republic 2007 tzhc 109 4 december 2007

IN THE HIGH COURT OF TANZANIA AT MTWARA CRIMINAL APPEAL NO. 30 OF 2007 --------FROM LINDI DISTRICT COURT CRIMINAL CASE NO. 192 OF 2005 BEFORE: I. ARUFANI, ESQ: RM MUKSIN ALLY N ASSO R O ......................... APPELLANT VERSUS THE R E P U B LIC .................. ................... RESPONDENT DATE OF LAST ORDER - 7/11/2007 DATE OF JUDGMENT - 4/12/2007 JUDGMENT MJEMMAS, J. The appellant Muksin s/o Ally Nassoro and three others were arraigned before the District Court of Lindi for different offences/counts. The appellant who was the second accused person together with the third and fourth accused persons were charged in the first count with the offence of burglary c/s 294(1) of the Penal Code and in the second count with the offence of stealing c/s 265 of the Penal Code. The first accused person was charged in the third count with the offence of receiving stoj^n property c/s 311 of the Penal Code. At the end of the trial the first and fourth accused persons were acquitted. The appellant who was the second accused and the third accused person were found guilty of both counts of burglary and stealing. They were convicted and sentenced accordingly. Perhaps, it is important to mention that the second l accused person (Appellant) was sentenced to serve a term of five years imprisonment in the first count and six months imprisonment for the second count. Sentences were ordered to run concurrently. As io the third accused person he was-diseharged under section 38 of the Penal Code for health problems. The appellant was aggrieved hence this appeal. The background of this case is that on 20/8/2005 in the night at Wailes area in Lindi Town the house of Ndatulu Samike (PW.1) was broken into by thieves who stole various items including a television set, electric stabilizer, hot pots, torch and electric kettle. PW.1 reported the matter to the Police. In the course of their investigations the Police were led to the house of the first appellant where they searched it and found various items including an electric kettle which were suspected to have been stolen. The first accused person mentioned the appellant as the one who sold him the electric kettle which was later identified by PW.1 as his kettle stolen a few days ago. The appellant and other accused persons were arrested and charged as shown above. At the hearing of the appeal the appellant appeared in person, unrepresented while the respondent - Republic was represented by Mr. Luena, learned State Attorney. The appellant did not have anything to add or elaborate to his pefHion of appeal in which he challenges the evidence of the first and third accused persons. On his part, Mr. Luena, learned State Attorney for the respondent - Republic did not support both the conviction and sentence imposed on the appellant. To justify the position which he has taken, Mr. Luena said that the appellant was convicted from three types of evidence which he (Mr. Luena)~did not support. First, he said, the appellant was convicted because of his cautioned statement, second, the cautioned statement of the third accused person and third, the cautioned statement and evidence (defence) of the first accused person. With regard to the appellant’s cautioned statement, Mr. Luena said that the appellant repudiated it when it was produced in court. According to Mr. Luena the court received the said cautioned statement of the appellant as exhibit P2 without conducting an inquiry to satisfy itself whether the statement was made voluntarily by the appellant. Mr. Luena went on to argue that the trial Magistrate discredited the appellant’s cautioned statement as unreliable in the course of his judgment. On the cautioned statement of the third accused person, Mr. Luena said that although the third accused person mentioned the appellant that he was involved in the commission of the offence, the third appellant repudiated his cautioned statement. It was the view of Mr. Luena that since the cautioned statement of the third accused person was or amounted to a confessiorTof a co-accused it was supposed to be corroborated by an independent evidence. Mr. Luena went on to argue that the trial Magistrate did not conduct an inquiry to establish whether the statement of the third accused person was voluntarily made. Mr. Luena went on to add that the cautioned statement of the third accused person was also discredited by the trial Magistrate as unreliable. With regard to the cautioned statement of the first accused person who said that the electric kettle was sold to him by the appellant Mr. Luena said that it needed to be collaborated because it was a confession of a co-accused. Mr. Luena submitted also that the said electric kettle was not properly identified by PW.1. He also said that there was contradiction in the evidence of PW.3 and PW.4 with regard to the source of information which led to the arrest of the appellant and implicating him with the offence charged. From the available evidence there is no dispute that the first accused person was found to be in possession of an electric kettle exhibit P1 which was suspected to have been unlawfully acquired and later on identified by PW.1 as one of the items which were stolen from his house. Mr. Luena is disputing the identification but I will come back to it later. Let it be settled here that the first accused was found with the kettle and there is no dispute about that. Another thing not in dispute is that the first accused person wrote or made a cautioned statement which was recorded by PW.4 F.168 D/SGT. Frank. That cautioned statement was received in court as Exh.P3 and the first accused person did not raise any objection. In that cautioned statement the first accused person said that the electric kettle - Exh.P1 was brought to him by the second accused person. Even in his defence, the first accused person said that the second accused person (appellant) sold the kettle to him for TShs.4,000/=. Of course the" appellant denied to have~~sold the kettle to the first accused person. In his judgment the trial Magistrate said: “Also the court has been persuaded to believe the evidence of PW.3 and that of PW.4 that the second and third accused persons participated in the event of burglarying the house of PW.1 and steal his prooerties after the first accused person gave his defence that exhibit P1 which was found in his house was sold to him by second accused person who was together with other people who were not familiar to him.” As stated before, Mr. Luena expressed the opinion that the evidence of the first accused person together with his cautioned statement needed to be corroborated because he was a co-accused. What is the position of the law in that regard? Section 142 of the Evidence Act, 1967 provides: “An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.” In the case of Pascal Kitingwa V. Republic [1994] TLR.65 the Court of Appeal held that: “Evidence from a co-accused as in this case is accomplice’s evidence and a court may convict on accomplice’s evidence without corroboration if it is convinced that the evidence is true, and provided it warns itself of the dangers of convicting on uncorroborated accomplice’s evidence." I am convinced that the first accused person was an accomplice. The'record of the case“ shows that he was tried and convicted in Criminal Case No. 195/2005 in respect of the other properties which were found in his house together with exhibit P1 in this case. The learned Magistrate acquitted him in the present case because he was of the view that it would be unjust. Let him speak for himself. “Even if the court would have find there was a sufficient evidence to prove that when the first accused person received the said electric kettle he had reason to believe that the same had been obtained unlawfully but the said electric kettle was found in his possession together with other properties which as mentioned by PW.3 and PW.4 are diesel and iron rods and the first accused person was charged to have been in possession of the said properties unlawfully in the Criminal Case No. 195/2005 where he was found guilty and convicted and sentenced in the said offence. He went on to hold that:- “Therefore to severe some of the properties from the other properties is not proper because it will amount to multiplicity of charge and may cause the court to punish him twice while the law is against double punishment in the same event.” In my opinion the trial Magistrate was justified to base the conviction of the appellant on the evidence of the first accused person who was an accomplice. Let me say something about identification of the electric kettle or jug. Mr. Luena, learned State Attorney said that the jug or electric kettle was not properly identified. With respect I am unable to agree with him. PW.1 reported to the -----Police a few days before the arrest of the accused persons about his properties which had been stolen including the electric kettle. The witness described it as written Tokyo Japan and a mark of cutting it with a knife on its base. It is only unfortunate that the receipt which he produced earlier in court as exhibit P1 [receipt from Ebenezer Marketing Group Ltd of P.O. Box 1338 Dar es Salaam] was not incorporated in the new proceedings after the first proceedings were withdrawn. I am however convinced that the description which he gave was sufficient and no one else claimed the kettle which he reported earlier to the Police as one of the items which were stolen from his house. With regard to the other grounds raised by Mr. Luena I quite agree with him that the said confessions of co-accused persons required corroboration. Another thing is that the learned trial Magistrate discredited them as unreliable but went ahead to consider them in convicting the appellant. I also agree with Mr. Luena that the trial Magistrate did not conduct an inquiry to determine whether the said caution statements of the second and third accused person’s were made voluntarily. Of-course in his judgment he made a finding that there was no evidence to show that the statements were made voluntarily. Let me quote him: “The caution statement which the court has find they are not reliable because were repudiated by the said accused persons and no evidence was made to prove that the same were made by them and voluntarily or in their defence.” However, as I have shown hereinabove, apart from those cautioned statements of the appellant and the third accused person there is sufficient evidence to prove that the appellant committed the offences as charged. His appeal therefore fails and it is dismissed accordingly. Judge/ 1/2^ 4/12/2 O07 Date: 4/12/2007 Coram: Hon. G.J.K. Mjemmas, J. For the Republic: Mr. Hyera, State Attorney Appellant: Present B/C: Nanyanga, RMA Mr. Hyera: This appeal is coming up for judgment. Order: Judgment delivered in chambers this 4th day of December, 2007 in the presence of Mr. Hyera, learned State Attorney and the appellant.