20070625 TZHC Mtwara

IN THE HIGH COURT OF TANZANIA

ATMTWARA CRIMINAL APPEAL NO. 127 OF 2005 ORIGINAL LINDI D/COURT CR. CASE NO. 139 OF 2005 RAJABU BAKARI @ MKULA - - - - - - APPELLANT

VERSUS THE REPUBLIC - - - - -RESPONDENT Date of Last Order: 19/6/2007 Date of Judgment: 25/6/2007

JUDGEMENT SHANGALI, J. This appeal arises from the decision of the Lindi District Court in the Criminal Case No. 139 of2005 where the appellant, RAJABU BAKARI@ MKULA was charged with the offence of obtaining goods by False pretences c/s 302 of the Penal Code Cap 16. Upon hearing the prosecution evidence from two witneses and the appellants defence, the trial District Magistrate was satisfied with the prosecutin evidence and convicted the appellant. The appellant was sentenced to serve five ( 5) years imprisonment and to restore to the owner the properties obtained. The appellant was dissatisfied with the decision of the trial District Curt and.hence preferred this appeal. Before me the appellant who looked pale and sick appeared in person while the respondent Republic had the services of Mr. Hyera, Learned State Attorney. Let me, albeit briefly recapitulate the evidence adduced before the trial District Court. PWI MUSSA MOHAMED, the complainant claimed that on 1 12th June 2005 while at Rutamba area with his.friend waiting for Bus transport was approached by the appellant who requested them to be shown the Roman Catholic Church as he was a newcomer from Dar es salaam. In that encounter a short conversation between the trio inssued and the appellant produced some stones claiming to be precious minerals for sale. 1 "\\ PWI was attracted and opted to purchase the same. There and

then he gave .,, the appellant Tsh.1000/=, two pairs ofKhanga and one pair of sandals. PWI collected the said precious minerals believing they were pure gold and both departed. PWI claimed that later on he discovered that the alleged precious minerals were nothing but two small batteries. PW2 ISSA MOHAMED KITENGE, the close relative of PWI claimed that the two pairs of Khanga and sandals were actually parchsed by PWI for their aunt but were trickly and fraudulently taken by the appellant. He claimed that he was the one who arrested the appellant after several days. He also stated that on the date of arrest the appellant was wearing the same sandals deceitfuly obtained from PWI. PW2 testified that when the appellant was questioned he admitted to have conned PWI and pleaded to pay back the 1 properties. Both the sandals and two small batteries were admitted in Court as Exibits PI and P2 respectively. In his defence, the appellant categorically denied to have committed the offence and stated that he was attested on 14th June 2005 at about 9.00 hrs when he was passing near the house of PWI. He claimed that it was the PWI who started to shout" Siyo huyu!" and others replied "ndio hawa hawa matapeli." In his memorandum of appeal the appellant listed several grounds of appeal which in legal sphere may be paraphrased and summarised to only two grounds namely; whether the alleged pair

of sandals (Exibit PI) was correctly identified to be the property of the complainant and whether the prosecution evidence was sufficient to warrant a conviction against him. During the hearing of the appeal the appellant insisted on his innocence and.claimed that the whole case was fabricated against him and that even the pairs of sandals were not identified as the property of PWI and PW2 never witnessed the alleged deceitful transaction. Mr. Hyera, Learned State Attorney for the respondent Republic declined to support the decision of the trial District Magistrate and submitted that the appellant was not correctly identified as the person who actually conned the complainant. He stated that it is not clear how PW2 identified the appellant as the person who conned the PWI. Mr. Hyera argued that there was no evidence to show how PWI managed to prove that the sandals found in possession of the appellant were his properties. He also questioned the allegation of PW2 2 ·• that the appellant confessed to have committed the offence because the , appellant's cautioned statement was not taken by the Police. I entirely agree with the learned State Attorney on his candid and legal position. One more issue which cripples the prosecution case is the apparent contradictions in the evidence of PWI and PW2 regarding to the appellants domicile. PWI claimed that he was with his " friend" at

Rutamba waiting for Bus transport when the appellant approached them inquiring about Roman Catholic Church. At that juncture the appellant told them that he was from Dar es salaam. On the other hand PW2 claimed that the appellant is their neighbour. By any imagination if the appellant was their neighbour as claimed by PW2, then PWI would not have believed the appellant that he was a new comer from Dar es salaam looking for the Roman Catholic Church. It is unclear to me as to why the trial Magistrate decided to believe PW2 that the appellant was their neighbour and decided to pay no attention to the claims of PWI that the appellant was a new comer from Dar es salaam. One more uncomfortable situation in the whole case is that the trial Court record is silent on whether the matter was ever reported at the Police Station. It seems the appellant was arrested by PW2 and marched to the Court without any Police investigation on the matter. Furthermore, it seems the trial District Magistrate was bent to convict the appellant because in his judgment at page I he said and I quote; "It should be remembered that on the preliminary hearing date the accused admitted the fact that on 14/06/2005 at about 09.00 hours the accused was found around Mwenge Ward premises wearing some sandals which he had stolen from PWI whom he met on that day and having been detected by PWI he decided to run away

and entered the dweling house of one Mr. Kapias Mapunda". I have perused the trial Court record of proceedings particularly the preliminary hearing proceedings. With due respect to the trial District Magistrate there is no place in the proceedings to justify his findings or to show that the appellant/accused admitted such facts. The appellant has been all along denying to have committed the offence and in my view, to conclude mid-air that he had admitted such serious facts amounts to see the appellant througb his enemies eyes. 3 / 1 In conclusion and for the foregoing reasons I am satisfied, just like the learned State Attorney that the conviction against the appellant was based on totally insufficient prosecution evidence. The appeal is therefore allowed, conviction is quashed and the sentence of five years imprisonment against the appellant set aside. The appellant is to be released from custody forthwith unless lawfully held on another matter. It is so ordered. Judgment delivered in the absence of Mr. Hyera, Learned State Attorney who is attending an offici3:l, meeting at Dar-es-salaam and in the precence of the appellant in person. M.s.il#. . JUDG:;tal 25/6/2007. 4