SAID JUMA

IN THE HIGH COURT OF TANZANIA DODOMA SUB - REGISTRY AT DODOMA DC. CRIMINAL APPEAL NO. 120 OF 2023 (Originating from the District court of Iramba at Kiomboi Criminal case No. 133 o f2022) SAID JUMA @ SHABANI............................................................. APPELLANT VERSUS THE REPUBLIC.........................................................................RESPONDENT JUDGMENT 24* October, 2024 HASSAN, J.: The appellant, Said Juma Shabani and one, Lazaro S/O Ndetaule @ Kaaya were jointly charged before the District Court of Iramba at Kiomboi for the offence of Cattle Theft contrary to section 258(1) of the Penal Code [Cap 16 R. E 2022]. It is in the particulars of the offence that on the 11th day of October, 2022, at about 1800 hours at Singa village, Kinampundu Ward, Nduguti Division, within Mkalama District in Singida Region, they wilfully and unlawfully did steal one cow red and white in colour valued at Tshs 1,000,000/- the property of one Daniel S/O l John @ Silili of Singa village. At the conclusion of the trial, the appellant was convicted and sentenced to serve fifteen (15) years imprisonment, while the then other co-accused was acquitted. Aggrieved, the appellant preferred six (6) grounds of appeal for resoluteness in which he essentially argues that the prosecution case against him was not proved to the required standard of proof. When the appeal was called for hearing, the layman appellant appeared in person while the respondent Republic was represented by Ms. Magreth Bilal, learned State Attorney. The appellant adopted his petition of appeal to form his submissions in support of the appeal. On her part, the learned state attorney supported the appeal on its entirely by firstly submitting on the 2nd ground of appeal that the appellant was convicted without seizure form being executed which establishes that, the appellant was arrested with a stolen cow. She went on submitting that looking on the proceedings, there is not a single witness who testified about seizure of the stolen cow. That, this flawed the prosecution's evidence since the law requires that, whenever item is seized, a seizure form has to be filled under section 38 of the Criminal Procedure Act, Cap 2022, 2 She submitted further that, PW2 and PW3 were the persons who allegedly arrested the appellant and the other accused with the cow, and they surrendered them to Village Executive Officer of Mhunda village. And the next morning, they escorted them to the police station at Mhundi where they left them and returned to their residence. Thus, looking on the proceedings there is nowhere seizure has been conducted. Either from the scene or at the police station when they surrendered the appellant. For that note, the learned state attorney conceded that prosecution case was flawed. On the 3rd ground of appeal where the appellant contended that he was convicted while chain of custody was weak. The learned state attorney also conceded that there is nowhere in the records where the evidence shows after the exhibit was surrendered at the police station, how it was managed and how it came into the hands of the court. She went on submitting that she is alive of the requirement of the law that evidence has to reveal by whom the exhibit was arrested, stored and how it ends up to the court. She stressed her submission by citing Leonard Felesiano vs Republic, Criminal Appeal No.238 of 2020 (unreported). She therefore conceded that prosecution evidence was weak and cannot prove the charge to the required standard. 3 On the 5th ground, where the appellant contended that the trial Magistrate erred in law and fact to admit exhibit cow while it was improperly identified. The learned state attorney also supported that PW1 who tendered the cow had not identified it properly. For instance, at page 5 of the proceedings, PW1 had not identified the exhibit before it was tendered in evidence. He just said that 'This is a bull; I pray to be admitted as exhibit". She went on submitting that, the law requires proper identification of exhibit before it has been admitted in evidence. That, PW1 should have identified the bull with its identification mark before he prayed to tender the same. The learned state attorney supported the 1st ground of appeal that prosecution has failed to prove the charge beyond reasonable doubt. She added that omission of all the attributes submitted earlier creates doubt if it is true that a bull which had allegedly been stolen is the same bull admitted in the trial court. And that, as we are alive that the burden of proof lies to the prosecution, therefore, the evidence adduced lacks proof of the charge. The learned state attorney finally supported the appeal. I appreciate the submissions by the learned state attorney as regards to the flaws observed in the trial court. Indeed, section 38 of the 4 Criminal Procedure Act, Cap 20 R. E 2022 provides for the procedure search and seizing exhibits, thus: "38. -(1) Where a police officer in charge o f a police station is satisfied that there is reasonable ground for suspecting that there is in any building, vessel, carriage, box, receptacle or p/ace- (a) anything with respect to which an offence has been committed; (b) anything in respect o f which there are reasonable grounds to believe that it will afford evidence as to the commission o f an offence; (c) anything in respect o f which there are reasonable grounds to believe that it is intended to be used for the purpose o f committing an offence, and the officer is satisfied that any delay would result in the removal or destruction o f that thing or would endanger life or property, he may search or issue a written authority to any police officer under him to search the building, vessel, carriage, box, receptacle or place as the case may be. (2) Where an authority referred to in subsection (1) is issued, the police officer concerned shall, as soon as practicable, report the issue of the authority, the grounds on which it was issued and the result o f any search made under it to a magistrate. (3) Where anything is seized in pursuance o f the powers conferred by subsection (1) the officer seizing the thing shall issue a receipt acknowledging the seizure o f that thing, being the signature o f the owner or occupier o f the premises or his near relative or other person for the time being in possession or control o f the premises, and the signature o f witnesses to the search, if any. (4) Whoever, being empowered by law to order, authorise or conduct the search or any person, place, building, vessel, carriage or receptacle, vexatiously and without having reasonable grounds for doing, orders, authorises or conducts such search commits an offence and upon conviction is liable to a fine not exceeding three thousand shillings or imprisonment for a term not exceeding one year. (5) No prosecution against any person for an offence under subsection (4) shall be instituted except with the written consent o f the Director o f Public Prosecutions." Subsection (3) of the provision directs that when seizing anything, the officer seizing the thing has to issue a receipt acknowledging the seizure of it, that is a certificate of seizure bearing the signature of the owner or occupier of the premises or his near relative or other person and the signature of witnesses to the search, if any. In the instant case, looking at prosecution's evidence in the trial court, nothing was done in compliance with the said mandatory requirement of the law. There is no evidence of any police officer seizing the stolen cow and issuing a certificate of seizure which was ought to have been tendered and admitted in the trial court. The only evidence is of Amos Robert (PW2) and Stanley Antony (PW3) who allegedly 7 apprehended the appellant with the said stolen cow, exhibit PI and handled them over to the police station. No police officer testified on how the exhibit seized and the evidence is silent on if the mandatory procedure of seizing exhibit as provided by section 38 of the Criminal Procedure Act was adhered to. Another flaw observed in the prosecution's evidence is that, there was no chain of custody established on how the alleged stolen cow was handled to the police officers, how it was stored and finally tendered in the trial court. The evidence is silent on the same. The rationale behind the principle of chain of custody was established in the case of Paulo Maduka and 4 Others v. Republic, Criminal Appeal No. 100 of 2007 (unreported) where the court made an observation:- "The idea behind recording the chain o f custody is to establish that the alleged evidence is in fact related to the alleged crime rather than; for instance, having been planted fraudulently to make someone guilty. The chain o f custody requires that from the moment the evidence is collected, its very transfer from one person to another must be documented and that it be provable that nobody else could have accessed it ”[Emphasis added] 8 See also Makoye Samwel @ Kashinje & 4 Others v The Republic, Criminal Appeal No. 32 of 2014 and Kashindye Bundala and Another vs The Republic, Criminal Appeal No. 349 of 2009 (both unreported). In the instant case there was no chain of custody to show if the alleged cow found with the appellant was the same cow tender in court and admitted as exhibit PI to ensure that it has not been planted or tempered with. This shakes the prosecution's evidence considering the fact that identification of the exhibit PI by the alleged owner, Daniel John (PW1) prior to its admission is also questionable as he did not identify the unique marks of the cow to match the identification stipulated in the charge sheet, indeed, he did not identify any marks when praying the same to be admitted in evidence, to make it clear as to whether the alleged stolen cow belonging to him is the same cow taken to the police station and later tendered in court. There is also another irregularity not addressed by the parties on the part of the appellant being denied his right of defence contrary to section 231(1) (a) and (b) of the Criminal Procedure Code, Cap 20, R. E 2022. In the record of proceedings the appellant only answered to one question that, he would call only one witness. He was not address whether 9 or not he would testify on oath or affirmation contrary to section 231 of the Criminal Procedure act, Cap 20 R. E 2022. The court has given its direction on the importance of informing the accused of his right before defending himself in Ally Juma Faizi @ Mpemba vs Republic, Criminal Appeal 401 of 2013 (unreported) where the court held:- 'We think the failure by the trial court to address the appellants in terms o f section 231 was highly irregular" Also in Namashule Ndoshi v. The Republic, Criminal Appeal no. 120 of 2005 (unreported) the court addressed section 231, thus:- ... a trial magistrate must inform an accused that they have a right to make a defence or choose not to make one in relation to the offence charged or to any other alternative offence for which the court could under the law convict Not only is an accused entitled to give evidence- in their defence but also to call witnesses to testify in their behalf. So, the section is an elaboration o f the all-important maxim- audi alteram partem and that no one should be condemned unheard. " 10 That said and done, considering the omission by the trial court and the doubtful and flawed evidence by the prosecution, I am of the firm position that the prosecution's evidence in the trial court was short of proving the case against the appellant beyond all reasonable doubt. The appeal therefore is allowed accordingly. Conviction quashed and sentence set aside, at the end, the appellant shall be set at liberty forthwith if he is not detained for other lawful cause. DATED at DODOMA this 24thday of October, 2024 Judgment delivered this 24th day of October, 2024 in presence of the appellant and Ms. Bertha Kulwa, learned State Attorney. 24/10/2024 11