Ndila

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA SUB REGISTRY AT TABORA DC CRIMINAL APPEAL NO. 20 OF 2023 (Originating from Kaiiua District Court in Criminal Case no. 162 of2021) NDILA S/O LUCHALANGA.........................................APPELLANT VERSUS THE REPUBLIC....... ........ ....RESPONDENT JUDGMENT Date ofLast Order: 12/02/2024 Date ofDelivery: 07/03/2024 Z.D MANGO, J. The Appellant Ndila Luchalanga was arraigned before the District Court of Kaiiua for the offence of animal stealing contrary to section 268(1)&(3) of the Penal Code [Cap 16 R.E 2022]. He was accused of stealing three (3) cows at Ugansa village the property of Chanzi Lutema after giving biscuits suspected to contain poison/drugs to Gegu Chanzi Lutema who was supposed to deliver the said cows to his i father, Chanzi Lutema. After full trial, the Court convicted and sentenced him to serve fifteen (15) years imprisonment. Dissatisfied with the decision of Kaliua District Court, the Appellant preferred the appeal at hand challenging conviction and sentence. He raised five grounds of appeal which read; 1. That, the case for the prosecution was not proved against the appellant beyond reasonable doubt as required by the law. 2. That Hon. Trial Magistrate erred in fact and in law to predicate conviction of the appellant on suspicions only 3. That, PW3 did not medically examine PW2, rather PW2 explained to PW3 what had happened to him then PW3 referred PW2 to the District Hospital. 4. That, Exhibit Pl is not in respect of PW2. 5. That, Hon. Trial Magistrate did not address her mind to the issue of the Appellant' acts after the alleged commission of the offence namely taking PW2 to his (Appellant's home) in order to take care of him is at per with his innocence. During hearing, Ms Idda Rugakingira, learned State Attorney, appeared for the Republic while the Appellant prosecuted the appeal in person. Hearing proceeded viva voce. The appellant opted to adopt his grounds of appeal for consideration by the court. Ms Idda Rugakingira supported the appeal on the ground that, prosecution's case was not proved beyond reasonable doubts. She pointed out weaknesses 2 in the prosecution case to be discrepancies in the names of the victim of the offence as they appear in the PF3 and in Court proceedings. She submitted that, the names of the victim in the proceedings appears as Gengu Chanzi Lutema while in the PF3 which was tendered as Exhibit Pl the names of the victim appears as Jengu Charles. The difference in names between the name of the victim of the offence and the names of the person whose particulars appears in the PF3, establishes that the particulars and findings filled in the PF3 do not have any relationship with the victim of the offence alleged to have c lifted by the Appellant. The learned State Attorney submitted further on the irregularities during tendering of the PF3. In this she submitted that, the document, PF3, was not read out after being admitted. Thus, the PF3 is liable to be expunged from Court record. She added that, the effect of expunging exhibit Pl, leaves the prosecution without proof of intoxication which is vital in proving the offence alleged to have committed by the Appellant in the matter at hand. The Appellant had nothing to rejoin. Having heard the parties and considered Court record, I agree with the learned State Attorney that,, the prosecution did not prove the case against the Appellant beyond reasonable doubts. I hold so because the offence with which the Appellant was charged with was animal stealing contrary to section 268(1)&(3) the Penal Code; [ Cap. 16 R.E 2022] and not stupefying in order to commit an offence contrary to section 221 of the Penal Code. Court record does not contain any piece of evidence that establishes it was the Appellant who stole the alleged cows. What is contained in the proceedings is mere suspicion that the Appellant stole the three cows. 3 Suspicions against the Appellant can be extracted from the testimony of PW1 Chanzi Lutema and PW2 Gengu Chanzi Lutema. PW1 suspects the Appellant to be responsible with the offence because he was the only person who was aware of the movement of the said cows. PW2 suspects the Appellant because few minutes before he lost his consciousness, the Appellant gave him a biscuit which he suspects it was poisoned. Suspicions of PW1 and PW2 are not that much strong as they are not supported by the Appellants conduct after the incident. It is in record that the Appellant after being aware of what happened to PW2, he took him to his home as it appears in the Appellant's defence before the trial Court. His defence is supported by the testimony of PW1, who stated clearly that he found PW2, the victim of the offence, at the Appellant's house. Moreover, it was PW2's testimony that, when the Appellant handled over the cows to him, there were other two persons who were grazing their cows. Unfortunately, PW2 stated to be incapable of identifying the two persons. In such circumstances, it is not clear who exactly stole the cows from PW2. Even if the suspicions against the Appellant would have been strong, the same could not have supported his conviction. It is trite law that, suspicion however grave, cannot lead to conviction of the accused person. It is the duty of the prosecution to prove their case beyond reasonable doubts. See the case of Hakimu Mfaume Versus Republic [1984] TLR 201. Coming to Exhibit Pl, I agree with the parties to this appeal that it is not relevant to this case. This is established by the fact that, Exhibit Pi bears the name of a person known as Jegu Charles while the victim in the matter at hand is Gengu Chanzi Lutema. The document was also not read after 4 being tendered as evidence. It is a well-established principle that an exhibit must be read after its admission as evidence, failure of which, the document will be liable to be expunged from record. This principle was observed by the Court of Appeal in a number of cases including the case of Lack s/o KiHngani vs Republic (Criminal Appeal 402 of2015) [2016] TZCA 688 (29 July 2016). I am of a considered view that, exhibit Pl is not relevant to this matter and it was not properly tendered. Therefore, it is hereby expunged from record. Given the fact that there is no any piece of evidence that establishes the Appellant's responsibility to the alleged crime, I allow the appeal, quash the conviction and set aside the sentence meted against the Appellant. I further order for immediate release of the appellant unless held for other lawful reasons. rch 2024 D MANGO JUDGE 5