20040514 TZHC Bukoba

. r IN THE HIGH COURI' OF TANZANIA AT BUKOBA (HC) CRIMINAL APPF.AL NO. 40/?002 (Arising from Criminal Case 140/?001 et BihPrP-mulo D/Court) PAUID FEUX • • • APPELLANT VRSo THE REPUBUC •• RESPONDENT JUDGMENT LUANDA 1 J. On YJ/4/2004 I quashed the proceedings, set aside the conviction and sentence and I_ ordered the release of the appell~nt. I promised to give reasons for doing so at "l 1-?ter di!'.lte. I now give the re"'~ons .. The tri 'll court record shm,,s th~t, the ch"rge sheet, the b~sis of this appe~l,contnins three counts involving five persons including the nppell.,,nt one P"lulo Felix. The other four were cb":'rged with ste~ling by serv~nt c/s 271 ~nd 265 of the Pen~l Code. And alternrtiv~ to this cml.l'.t·t, three out of those four were cb"'rged withn·eglect to prevent an offence ~nd not~ felony as per ... mendement ~ffected by Act No. 14 of 1980. The ... ppen~nt alone W?S ch~rged with receiving stolen property c/s 311 (i) of ·the Pen"l Code. However, .::t t the close of the prosecution C<'lse the four ch~rged olong with the appellnnt were '3C~uitted under s_ 230 of the CPA> 1985; the re~son being the prosecution side f.,_iled to est~blish ... primo f~cie c~se. The oppell~nt W3S called to give his defence 3fter the court had found out th!'lt he h'.'ld a Mse to answer. At the end of the triol the r1ppell'.mt w,e,,s convicted ,'3S cb!'rged. He w~s sentenced to 5 yeors imprisonment. Aggrieved with both the conviction ond sentence, hence this 2 \ i 2 The "l'Pell ·mt r"'ised seven grounds in his memor~ridum of 'lp-per<l, ' I In ti nutshell he· .is ch~lleng:ing the finding of the t:rit::tl court in th.,t it convicted him without sufficient evidence. In other words he is• s1ying the prosecution side didnot prove its cos.e beyond the standli.rd required i.e~ beyond re~sonable doubt. · Mr. Vithlis le~rned State Attorney who nppeared for the Republic; rightly so, d1dnot support the conviction~ The prosecution C"Se is to the following effect::.. Some unknm,m d?.y but between 28/10/2000 ruid 27/2/2001 D. pressure pump the property of Ch~to Ginne:ry W!lS stolen by unknown persons. Following th1t incident, investig~tion commenced. The fitst suspects were wntchmen guarding the ginnecy. The "i'· ginnery was gu~rded twenty four hours. The watchmen were querried, All denied •• On ?8/2/2001 the matter wns reported to Ch~to Police St.,;ition. Some WDtchmen were 1:lrrested. On 3/7/2001 Mulome M-isorne (PW 3) Acting Gener<>l M"nnger of the s~id ginnery received~ telephone c~ll from someone in th~t the pump wns sold to one Indicin in Mwnnza. He reported to the OCS Ch~to Police. The OCS wrote !I. memo ,ddressed to OCS Mw"nza. .. On 4/7/?001 I • PW 3 in accompany with Seni Mtarti (PW 2) Chief Engineer of the ginnery left for Mwanzn. They went to Mw:mz"I without ~ police officer. The ginnery Ddministr~tion were doing investig~tion on their O\'mi Be th:1t ns it m~y, in Mw-:lnzn one D. 8217 D/Sgt Selemnn (PW 4) wns assigned to accompany.the two to the pbce where the pump w1s. They went to one person c~ lled luge b ._. ~hey didnot meet him. But while in the office of Lugeln, PW 4 opened o. visitors book ruid saw a message in a chit of p~per indic!tting th'1t the appellant would like to meet with Lugela. PvJ 2 and PW 3 cl"'!imed to identify the hnndwritting of the ~ppellant. The ,p~ell.,nt w~s their Genersl Wmr.iger. At, the time the pump---!r!~ ·stolen, the ~ppe1l"'nt was~. interdicted. 3 I", •• ., I 3 - PW 4 seized it. They traced Lugel'a.,. :Fortunately,: t-hey managed to ' . ' I ,' I get him. When asked about the pump he told .them that the appell,nt ., had the pump ond th,t he wns iooking ofter a buyer. Finolly, t~e pump lnnded in the h~nds of Vijohi Kh~nD, the buyer, Lugel~ told them .. They thus went to Vijohi Kh~ma. Vijalu Khnn~ '=ldmitted buying the ' pUmp frorri the ~ppell"lnt;, The pump w.,s seized. It w~s duly identified by PW 2 ~nd PW 3. But Lugel~ ,md Vij~hi Kh~n~ who were ocruci~l witnesses in this C':tse didnot testfy.. However, the st~tement of Vijohi Kharrn was produced in court under s. :31+ (b) (2) (c) of the Evidence Act, 1967 bec!.!use of ill hen.1th. Mr .. Vit!'..llis submitted th-:1t since the evidence of Vijnhi Khbno. and Lugela is vit~l to the prosecution c,se ~nd they didnot testfy, the conviction connot st'lnd. In otherwords what PW 2, PW 3 r:md PW 4 testified in respect of the rec~very of 'the pump is he-,rs:iy. Further, he s.,id it is not proper to rely on S., 34 (i) (2) (C) of the Evidence Act, 1967 only; the entire Section should come to pl~y. He cited RV Hnssnn Jutnftnne (1983) TLR 432. This cou,rt through Lug~kingir~, J~(as he then w~s) held inter Olio, th3t the provisions of s. 34 (B) (2) of the Evidence Act, 1967 are cumulative and oll the p~rb.graphs (a) to (f) h~ve to be s~tiRfied. As the conditions were not s~tisfied, the st~tement of ViJ~hi Khan3 wos then inadmissible. Before, I p"llrt with this file, let me soy, word or two ~bout the wo.y this case W'lS hondled., The ov~iloble evidence on record show th~t the pump in QUeRtion wos found with Vijahi Kho.na and not with the ~ppell~nt. And when querried he s':lid he bought from the ,'lppellant. If that is true,_ then on the bDsis of the doctrine of recent possession, the oppro- priate charge ought to h~ve been preferred ~goinst the appell~nt 4 --- • i •' f - - ,· ~ . . wo.s steb.ling and not receiving stolen properly.. And as ste~ling is hot a minor offence to receiving stolen property rather it is the'other way round, this court W:lS un~ble to enter conviction in lieu of receiving stolen property... The case W"S not properly investig~ted nnd prosecuted~ ' In view of the foregoing·, hence the au~shing l'lnd reie~se order.; AT BUKOBA 14/5/2oo+.