saidi ahmadi selemani kidudu another vs republic 2008 tzhc 326 23 july 2008

IN T H E H I G H C O U R T OF T A N Z A N I A AT M T W A R A C R I M I N A L A P P E A L NO. 63/2005 (c/f Cr. App. No. 64/2005) (O riginal Kilwa M usoko D/Co<irt Cr. Case no. 6/2004 Before: S.G. Cleophas I'SQ District M agistrate SAI DI AMIV1 ADI S E L E M A M @ K I D U D l .................. A P P E L L A N T S & MOM AM ED Z A H O R O MZE E VERSUS T H E R E P U B L I C ........................................................................ R E S P O N D E N T 22/7/2008 & 23/7/2008 Ju dg me n t R w c v e m a m u J., */ * 'This decision consolidates Cr. appeal 63 and 64 01*2005 by Said Ahmadi Kidtidu and Mohamcd Zalioro Mzec respectively. 1he two appellants where l bl and 2nd accused in Kilwa District Court (DC) Cr. Case 6/2004 where they were arraigned on a charge with two counts - buriilarv c/s 294 and stealing c/s 265 o f the Penal code. They were convicted and each sentenced to concurrent sentence o f 5 years and 6 months. 'Their conviction in the DC was premised on the following facts. P w 1 learnt vide a phone message that on 25/1/2004 a theft had occurred at Pw3,s house -where they usually rent a room and a number o f articles stolen including Shs. 300.000/=, The information was that the house was broken into while the owner was in deep sleep. They had information that the 1st appellant who was a known th ie f might have been the culprit. On 26/1/2004 they saw the two appellants at a bus station with a bag, they suspected them-took them to the VEO where the 1st appellant admitted that he had a mobile phone-admitted as P. Exh. 1. The second appellant had a charger and line o f the mobilc-P.3. They searched them and recovered shs.221.340/= from the l sl accused and shs. 17.235/= from the 2 ndcollectively tendered as P2. The evidence o f Pw2 was in substance similar to that o f P w 1. It would appear the two were together when they arrested the appellants hence reference to 4th ey\ in the DC record o f evidence. Pw 3 testified that his house was broken into on 25/1/2004. He did not witness the break in but was informed by M faum e Rashid who was also sleeping in that house. Pw3 E vidence on ihat went as follows; "therein slept M faum e R ashid . in the m orning he was the one who told me that the m entioned properties are stolen and that he fo u n d the door already broken. ” In defense, the appellants denied the offence and denied to have had PI and P3 on them. They claimed that the money tendered as P2 was theirs. It is not surprising that in their M em orandum o f Appeal (MA) the appellants complain in brief that; there was no evidence to prove that the complainant -Pw s house was burgled; that there was no p roof that they were found with stolen property- given the person - (VEO) w ho allegedly conducted the search was not called to testily; that there was no evidence that the alleged recovered properties belonged to the complainant; and that the DC erred to confiscate monies found on the 1st appellant and to order the same given to the complainant. Declining to support conviction, Mr. Mkude state attorney submits a n um ber o f grounds in support o f his stance among them that; there was no evidence that a burglary occurred from an investigator and indeed 1 may add not even from the complainant Pw3; that the two witnesses were tenants in the com plainant’s house as such they were not neutral witnesses (1 am not sure I follow his logic., but 1 assume he meant that they were also possible suspects, but explained that in such capacity their evidence could not be acted on without corroboration; that the purported complainant did not give any description o f his alleged stolen properties. I le invites me to make a negative inference on the prosecution’s failure to call the VTX) an otherwise important witness to testify and concludes that the prosecution's case was based on mere suspicion and suspicion however strong can not be regarded as truth, citing the CAT decision in I) Mapunda v. R, Cr. Appeal 2/99 (DSM -unreported). The issue for decision is whether there was sufficient proof that the appellants burgled the house o f Pw3 and there after stole his properties including PI, P2 and P3. To sustain conviction, the following ingredients needed to be proved: a. That the two appellants broke and entered a building with intent to commit a lelony namely stealing. b. That they broke into the building on the stated date i.e 2 5 /January 2004. c. That the offence was committed at night. d. That they stole properties including P I , P2 and P3. e. That they committed that offence jointly and: f. That the stolen articles belonged to the complainant Pw3. It is clear from the summarized facts above and as rightly submitted by the appellant and conceded by Mr. M k u d e for the respondent that key ingredients were not proved on the required standard in the DC. Particularly wanting was p ro o f on the fact o f the break in; p ro o f that the recovered property belonged to the complainant or that the properties PI, and P3 were found on the appellants. There is yet other gaps in the prosecution case. It is not clear on the evidence how P w 1 and Pw2 got information that Pw3,s house was burgled. Second, the complainant Pw3 deposed that he got information about the break in from Mfaume Rashid but the latter was not called as a witness, as such it is not known how he knew that Pw3 sthouse was broken into. I also find it strange that the complainant testified to have ‘got information’ on the break in, did he not notice anything when he got up from the alleged 'deep sleep,’ if he did not, could it be that there was no break in at all? In view o f all that, I agree with the submission o f both parties in this case and find the appellants’ appeals merited. Their conviction is quashed and sentences set aside, they are both to be released forthwith unless otherwise lawfully held. Since there was no p ro o f that P2 belonged to the complainant Pw 3, the DC order handing over the monies admitted as P2 to P W 3 is hereby reversed. It is so ordered.