20180903 TZHC Mwanza

I IN THE HIGH COURT OF TANZANIA ATMWANZA APPELLATE JURISDICTION CRIMINAL APPEAL NO. 66 OF 2018 {Originating from Criminal Case No. 314 of 2017 of the District Court of Tarime District at Tarime} MURIB!,\ NCHANGWA ISANCHO 'I } MOHERE GENGE BONIPHANCE JOHN GREYSON ••••••• I •••• I •• I.~ ••••••••• APPELLANTS VERSUS THE REPUBLIC11 ■ 1 ■ 11 ■■• ■ ••····I •••• ······••,• I I ••••••••••• I ••••••••••••••• RESPONDENT JUDGMENT Date hearing concluded .. 13/8/2018 & Date judgment delivered .. O3/09/2018 Gwae, J The appellants named herein above and another person called Joseph th Kar~uky Peter (hereinalter to be referred to as "4 accused") stood charged in the District Court of Tarime at Tarime (trial court) with two offences, notably house breaking c/s. 294 (1) of the Penal (Code Cap .16 Revised Edition 2002) and Stealing c;s': 258 (1) of the .Penal (Code Cap 16 ~ _Revised Edition 2002). - 1 • • -- 1. 1 1 . ' ~ At the end of trial, the trial court was satisfied that the charge in both counts was proved beyond reasonable doubt against the appellants however the 4 th accused was acquitted on the ground that the charge against him was not proved to the required standard in law. Eventually; the appellants were each sentenced to five years imprisonment in each count and the imposed sentences were ordered to run concurrently. Initially, the prosecution in the 1st count alleged- that the appellants and another on 26th May 2017_ at day times at Tarime Teachers College· within. Tarime District in Mara Region did break and e·nter into the dwelling house of one Jesca d/o Sosteness Ryatura and committed an offence therein to wit; stealing. It was further alleged in the 2nd count by the prosecution side-that; on the date, time and place aforementioned the appellants and the 4th accused person did steal, one gas container make Oryx valued at Tshs, 92, 000/ = one two plates gas stove make Mr. UK valued at Tshs. :80, 000/= one DVD .. deck make LG with Serial No. MBOO3443 valued at Tshs. 150, 000/= one decoder make star times with serial number No. ·29032815421045878 and star time card with No. 01819001344 and one decoder, remote make star times valued at Tshs ..56,000/== one plies valued at_Tshs. 5, 000/= one bag (IJrJ):r.fY:: .- , . • . • . I . f7f//)J/~fi;I.T \ \- ,· . 2 . . ·. . ~/ valued at Tshs. 25,000/= one pressure cooker make pigeon valued at Tshs. 100,000/= seven saucepans valued at Tshs. 100,000/= one knife . I valued at Tshs, 5,000/= two solar powered bulbs valu'ed at Tshs._ 25,000/= . . eight kilograms of groundnuts valued at Tshs. 20,000/= one power bank valued at Tshs, 10,000/= one mobile phone make tecno . valued at Tshs.30,000/= Cash money Tshs. 705, 000/=, one speaker make ~ony . • ! valued at Tshs. 188,000/= and one propane machine box .. All properties aforementioned valued at Tshs. 1,671,000 / =, the properties of the said lesca d/ o Sosteness Ryatura. However the 4th accused was distinctly charged with' an offence termed "retaining stolen properties" c/s 311 of the Penal Code Cap 16 of the Revised Edition, 2002 (3 rd count). He was also acquitted of this offence. . Briefly, the prosecution evidence was to the effect _thpt; on the material date, time and place. named above, there was discovery by one Merichades . Rwejuna (PW1) of house breaking, entering and stealing from the house of Jesca d/o Sosteness (PW2) ·who was in Mwanza for leave. The matter was reported to- police at Tarime. Investigation started ahd police (Ssgt. . Hilali-PW7) received information that then~ were thugs •with motorcycles . . . nd owned ~y Mabery Magige (PW4) and one Juha which were ·used by 2 l'l-~~t··)·~Wit-"', . • . ,1 . • ~...,_/ _____ ,.I • i . • I • f : 3 . . : . /~ I . • I and 3rd appellant in taking the stolen· articles from the: PW2's residential . . ·house. That the 2nc! and 3rd appellant admitted to have taken part in the . • I . commission of the offences in .question arid that the 1st appellant was· custodian of the stolen articles.· The prosecution side also through its witness, Gweso Mwita (PW3) adduced that to ·the effect that the 1st and 2nd appellant were s~en by the PW3 carrying stolen a~icles to wit; gas container and after three hours later the 2nd ' and 3rd accused were seen by the PW3 gas container and gas cooker, radio and pans. · th That, on 26 May 2017, the PW7 removed the 2nd appenant from the police custody and he took the lead to the 4th accused person where the PW7 and his colleagues namely; Sgt Elisikia (PW6) and an independent witness at the search in the 4th accused's shop and house as well. The 4th accused's shop was searched and the. following articles were. impounded from therein; Pitcher Gas, ('mtungi wa gesi'), decoder make star timed, remote, one small bag, popcorn. It was also the evidence of the prosecution that in the 4th accused's residential house there were -stolen properties owned by the PW2 which were . impounded. from therein, these were;- .two large speakers and three . sm_all speakers, pressure cooker with two plates, home theater, gas stove~- 4 f IC I ! make MR. U~ and on_e gas cooker. The items ·allegedly i_mpounded from the . . th 4 accused together with two certificates of seizure were tendered and · received· collectively as .PE1 after the. appellants and 4th accused had not objected their tendering, equally the receipts of home theater system, pressure cooker and DVD deck, radio .make Sony, gas stove make MR. UK Pitcher gas were admitted ~s PE2 collectively. In the defence, the appellants denied to have committed the offences in the l st and 2 nd counts. However the 2nd and 3rd appellant admitted knowing each other and the 2nd appellant also admitted familiarity with the 3rd · appellant as his co-motorcyclist ("bodaboda") as well as the PW3. The 4th accused in his part denied knowing the appellants and his shop and house having been searched by the PW7 in the presence of the PWS. The 4th accused however when cross- examined if he knew the PWS, he replied that the PWS is his friend that is why he bailed out him. Aggrieved by the trial court decision, the appellants have raised a number of ten grounds of appeal, however essentially they are three grounds of app.eal as other grounds are nothirig in substance but a repetition, these J~' are,- . . ~ 5 1. That, the appellants were. not properly identified or seen carrying some stolen goods 2. That, the trial court erred in law and fact in holding- that the th appellants committed the offence while it was the 4 accused who was evidentially found in possession of the allegedly impounded properties. 3. That, the prosecution has not proved the charge against the appeUants beyond reasonable doubt. In this appeal, the appellants appeared in person, unrepresented whereas the Republic was duly represented by Mr. Karumuna, the learned senior state attorney. All three appellants had nothing substantive to verbally submit while the - learned attorney for the Republic argued that this appeal is meritorious on the following grounds;- a. That, no witness who witnessed the occurrence. b. That, the property stolen was a common commodity this special/ specific description of the property. c. That, the appellants were not named by the 4th accused to have sent the stolen artrcles. d. Contradiction of the evidence 6 I . st _·Regarding the 1 ground of appeal; there is evidence of the PW3 that . . st while at the Ta rime Teachers' College mining stones he saw the 1 and 2nd . . ' . . ·appellants coming from the PW2's h6use while carrying ga~ fetcher and . . . . . 1 . . . . st nd cooker ar:id when they approached -him (PW3) the 1 and 2 appellant told him they had picked properties abandoned ·by the college students, the . . 1 . . PW3 then told the appellants that they lare habitual criminals-and that after ·three hours the PW3 had saw the 11 st and 2nd appellant riding two nd motorcycles, the PW3 saw the 2 appef lant carrying one gas container and 1· gas cooker while the 3rd appellant carrying gat fetchers. . \ Taking into account that the PW3 had testified to have been familiar with i the appellants and the day time that! the PW3 said to have seen the appellants moving away from the seen! of crime while carrying the some I stolen articles, moreover considering the corroborative evidence of the· 2nd . l appellant that he is familiar with the PW3 ("We know each other, I . . l . . know the (PW3)"). In our case the evidence of PW3 that the appellants I' . were seen from the scene riding bicycles is corroborated by that of J • nd Mabery Magige (PW4) in ·that he gav~ the 2 appellant his motorcycle and 3rd appellant was given a motorcycle of one Jaha. 7 .! -\ 1 . . I have closely assessed th~ evidence of the PW3 and that of PVV4 found to . . be credible as no ill ·motive has been established. I have asked myself as to why the PW3 could lie against his friend (2 nd appellant) and Iap.prehended . ; '1 . ! no apparent reason. in Karanja v Republic (2005] 1 EA 78 .. I "Subject to certain exceptions) it is trite I-aw .that a fact may be proved by the· testimony of a Jingle witness but this rule does not I - lessen the need for testing with' the greatest care the evidence of a ! I . single witness regarding identification, especially where it is known that the conditions favouring identification were difficult. In such case, what is needed is other corroborating evidence, whether direct or circumstantial" I j It is trite law . that no particular nurber witne.sses for proof of any particula·r fact is required in law (see section 43 of TEA and a decision of I • the Court of. Appeal in Ally Shenyau vi Republic, Criminal Appeal No.27 ' of. 1993 -unreported) however as a \matter of prudence and judicial I I practice,. it is advisable that identification by- a single witness be corroborated. In our case as earlier! stated, the evidence of PW3 is I nd corroborated with that_ of PW4. Moreover the 2 appellant's act of taking~ 8 I . , · the lead to the qiscovery of some stolen· articles, the property of the PW2 also corroborates the evidence of identification by the PW3. It must be . . I .. . . understood that a person accused of an · offence. can be convicted notwithstanding that he was not seen! at the scene of crime provided that there are pieces of evidence incriminatory to him. · I have also faiJed to· appreciate thJ submission. by the learned state attorney "that the impounded items were not properly identified" simply because the aiticles recovered were hroduced as PE1 without objection I from the appellants above all no one iwho claimed any ownership to the said impounded properties from the 4th accused · person's possession ', namely pressure cooker, star time card session. Furthermore some of t ! impounded articles were identified th~ough production and admission of purchase receipts (PE2) such as star ti~e card with No. 01819001344 and· other receipts. . .I . Regarding the 2nd complaint, I am of the considered opinion that, there is cogent evidence on the possession of s'.ome of the stolen properties found t . in the 4th accused person's shop and in his residential ihouse. The search was-conducted by the PW7 in the pres~nce of the PWS, and independent • I . th witness who is the friend of the 4 accused and the one 'who bailed out the Jff!#/f{f) : 9 l ~-- . I th 4 accused person. In G·eorge E~v,ard Komowski v. R. (1948) · 1 TLR 322: "It is not so strong as to dfsplace the presumption of innocence to the extent of throwing on the accused the burden or'giving 'I legal proof of the innocentlorigin of his possession. He has I merely to give a reasonabl~ probable explanation of how his . . possession originated and if he gives such an innocent I explanation he is entitled t0 an acquittal unless the prosecution I can disprove his story. Eveh if-he gives an explanation which I . does not convince the court of its truth he need not necessarily· be convicted. The true testiis whether his story is one which ' might reasonably be true and if that is the case, it follows that I the crown has not dischargkd ·the onus which lies continuously on it in this as in other crim.inal cases, to prove the accused's j guilt beyond reasonable doubt". . - I According to the prosecution oral evidence, particularly that of PWS, PW6 th and PW7 as. well as the two certificat~s I of seizure (PE1) dated • 29 May 2017, I undoubtedly.of the formed opihion that the _4th accused was found . . I . in possession of the articles seized from his shop and in his house as . ' . ' indicated therein as rightly complained of by the appellants. The I I th certificates of seizure were dlJly signecl bY the PW5, PW6, · PW? and 4 ~ , , . , , Accused taking. into account he gave no explanation as to how _he came into· possession of such properties. To my view, denial by the 4th accused .to have known the appellants and to have ·been found in possession does exonerate the appellants from criminal liability ·provided there is cogent and credible evidence to the satisfaction of a court of law as the case in this present matter. As to the 3 rd ground of appeal, "quite clearly, as a matter of law and logic, the prosecution is always bound to prove itsi charge against an accused person to the requir~d standard that is proof beyond reasonable doubt. In the present case, I am of the considered view that there is credible evidence in favour of prosecution that; the appellants were seen riding motorcycles and· carrying stolen goods, subsequent conduct of leading to . discovery of recently stolen articles at the 4th accused, these pieces of · evidence cannot be defeated by only re~ote defence that the one who was found in possession of recently arti_cles was acquitt~d and that the 4th accused denied to have known them (appellants) (see In Chandrankat Joshubhai Patel v. R, criminal appeal no.13 of 1998, Court of appeal of~]t1t _ ... _· . • )7111 if\ 1· . I 'J_) i I ,?J lJ ~ Tanzania· at DSM (unreported). I again unhesitatingly find that the . .. prosecution ·evidence is credible and is worthy of belief. All- said and done, I conseque~tly. find no reason to interfere with the- trial. court findings save to the imposed sentence of five years which is now reduced to three (3) years imprisonment commencing from the date they were convicted and sentenced by the trial ·court, this is so simply because the appellants are first offenders. 12