paulo felix vs republic 2004 tzhc 56 14 may 2004

IN THE HIGH COURT OF TANZANIA AT BUKOBA (HC) CRIMINAL APPEAL NO. ^0/p002 (Arising from Criminal C*se i^O/^OOl e t Bih^r^mulo D/Court) PAUIO FEIIX ... APPELLANT VRS. THE REPUBLIC .. RESPONDENT JUDGMENT LUANDA, J. On J>0/k/200k I quashed the proceedings, set aside the conviction and sentence and I ordered the release of the **ppell*nt. I promised to give reasons for doing so at «* l^ter d^te. I now give the re^Pons, The trial court record shows th-'t, the charge sheet, the b-'sis of this appeal^contains three counts involving five persons including the appellant one P^ulo Felix. The other four were charged with stealing by servant c/s 271 nnd 265 of the Pen^l Code. And alternative to this coiJVt, three out of those four were charged withn-eglect to prevent an offence *>nd not a felony as per *mendement effected by Act No. 1*f of 19B0. The nppell'nt alone v n s charged with receiving stolen property c/s 311 (i) of the Pen-1 Code. However, n t the close of the prosecution c nse the four charged along with the appellant were acquitted under S. 230 of the CPA, 1985; the reason being the prosecution side failed to establish * prim? facie case. The appellant wns called to give his defence after the court had found out thot he had a case to answer. At the end of the trial the ^ppell'mt v n s convicted as charged. He was sentenced to 5 years imprisonment. Aggrieved with both the conviction snd sentence, hence this appeal. The ''ppell'^nt raised seven grounds in his memorandum of "ppe^l. In a nutshell he .is challenging the finding of the triol court in th*t it convicted him without sufficient evidence. In other words he is spying the prosecution side didnot prove its cose beyond the standard required i.e. beyond reasonable doubt. Mr* Vitalis learned State Attorney who appeared for the Republicj rightly so, didnot support the conviction. The prosecution c^se is to the following effect:- Some unknown d?y but between 28/10/2000 and 27/2/2001 a pressure pump the property of Ch^to Ginnery wns stolen by unknown persons. Following thnt incident, investigation commenced. The first suspects were watchmen guarding the ginnery. The -i“ ginnery was guarded twenty four hours. The watchmen were querried. All denied.. On 28/2/2001 the matter was reported to Ch^to Police Station. Some watchmen were arrested. O n 3/7/?001 Mulome M^some (PW 3 ) Acting General Manager of the said ginnery received telephone c^ll from someone in th^t the pump was sold to one Indian in Mwanza. He reported to the OCS Ch*to Police. The OCS wrote a memo ^ddrersed to OCS Mwanza. On k/7/^OCrt PW 3 in accompany with Seni Mtani (PW 2) Chief Engineer of the ginnery left for Mwanza. They went to Mwanza without n police officer. The ginnery administration were doing investigation on their own! Be th”t as it m a y t in Mw-mza one D. 821? D/Sgt Seleman (PW k ) was assigned to accompany the two to the pl^ce where the pump w^s. They went to one person cnlled Luge I**. They didnot meet him* But while in the office of Lugela, PW k opened a visitors book and saw a message in a chit of proper indicating th~t the appellant would like to meet with Lugela. PW 2 and PW 3 claimed to identify the handwritting of the appellant. The ‘ jp-oell^nt vns their General Manager. At. the time the pump stolen, the •sppell^nt vns' interdicted. PW k seized it# They traced Lugela. Fortunately, they managed to get him* When asked about the pump he told them that the appell?nt had the pump and th^t he was looking after a buyer. Finally, the pump landed in the Trends of Vijahi Khana, the buyer, Lugela told them. They thus went to Vijahi Khana. VijaEd Khana admitted buying the pump from the appellant. The pump was seized. It wns duly identified by PW 2 *>nd PW 3* But Lugelr* «and Vijahi Khana who were acruci^l witnesses in this c*>se didnot testfy. However, the statement of Vijahi Khana was produced in court under S. (b) (2) (c) of the Evidence Act, 1967 because of ill health. Mr. Vitalis submitted thnt since the evidence of Vijahi Khana and Lugela is vital to the prosecution crse ~nd they didnot testfy, the conviction connot stand. I n otherwords what PW 2, PW 3 ^nd PW 4 testified in respect of the recovery of the pump is hearsay. Further, he s^id it is not proper to rely on S. 3^ (i) (2) (C) of the Evidence Act, 1967 only, the entire Section should come to pl^y# He cited R V Hassan JumRctne (1983 ) TLR kj>2* This court through Lugakingir^, J. (as he then w^s) held inter alia, that the provisions of S. J>k (B) (2) of the Evidence Act, 1967 are cumulative and 2 1 1 the paragraphs (a) to (f) h*ve to be satisfied. As the conditions were not satisfied, the Statement of Vijahi Khana was then inadmissible. Before, I p~>rt with this file, let me say a word or two about the way this case was handled. The available evidence on record show that the pump in nue^tion was found with Vijahi Khana and not with the nppell^nt. And when querried he said he bought from the appellant. I f that is true, then on the basis of the doctrine of recent possession, the appro­ priate charge ought to have been preferred -’ gainst the appellant k was stealing and not receiving stolen properly. And os stealing is not a minor offence to receiving stolen property rather it is the other way round, this court vns unable to enter conviction in lieu of receiving stolen property* The case w*s not properly investigated and prosecuted* In view of the foregoing, hence the rm*>shing snd release order* \ / \ \ JUDGE AT BUKOBA 1V5/20C&.