20150520 TZHC Mbeya

IN THE HIGH COURT OF TANZANIA AT MBEYA DC. CRIMINAL APPEAL NO. 98 OF 2014 (From. Churiya District Court, at Chunya, Original Criminal Case No. 183 of 2013) SEKION S/O MOSSES @ MWASOTA ................. APPELLANT Versus THE REPUBLIC ............................................ RESPONDENT JUDGMENT Date of last Order: 2810412015 Date of Judgment: 2110512015 HON. A. F. NGWALA, J. The Appellant was charged with and convicted of Stealing money on transit c/s 269 of the Penal Code, Cap. 16 R. E. 2002. The trial court sentenced him to serve a term of 5 years in imprisonment. He was further ordered to pay the victim a sum of Tshs. 194,400/= as compensation. Aggrieved with both the conviction and sentence imposed upon him, the appellant preferred this appeal. The appellant's Petition of Appeal contained eight Paragraphs which are summarized into four grounds of Appeal as follows:- 1 That the Hon. District Resident Magistrate erred in law and fact when he convicted him relying on un corroborated circumstantial evidence. That the Learned Trial Magistrate erred in law and fact when he convicted him basing only on the prosecution evidence without considering the defence evidence. That the charge against him was not proved an beyond reasonable doubt. That the sentence five years imprisonment was excessive taking into consideration that the appellant is a first time offender. The facts depicted from the trial court's record have established that. On 25. 11. 2013, Sarius Charles (PW2), Faustin Chombe (PW3) and the Appellant (DW1) were travelling to Mbeya from Qua Village in Chunya. They boarded a motor vehicle with Registration No. T. 995 ANT make Toyota Hilux Double Cabin (Exhibit PE 1) that was driven by Yoackim Sanga (PW1). When they arrived at Songambele Street in Gua Village, they met PW4 (Mashaka Fredrick who stopped the car and gave PW 1 a sum of Tshs.800,000/= so that PW1 could take the money to one Mr. Tweve, a whole seller at Mbeya. The money was kept in a nylon bag when handled to PW I. Upon receiving that money in the nylon bag, PW1 kept it in the draw of the motor vehicle's dash board. At that material time the appellant was seated behind the driver's seat. When they arrived at Mkwajuni area, PW1 parked the car. 2 All the passengers except DW1, the appellant disembarked from the car or got off the car for a cup of tea. On going back to the car they could not find the Appellant. They traced him to no avail. The money which PW1 had kept in the drawer of the motor vehicle's dash board went missing. The incident was reported to Chunya Police Station. Following such information one of the passengers namely Sanirasi Chale who had dropped at Mkwajuni boarded a bus to Chunya town. On the way, when they reached at Makongolosi area near Chunya Town, he saw the appellant and arrested him. The Appellant/accused was then sent to the Police Station. The Police arrainged him. Consequently he was charged with and convicted of the said offence by the Chunya District Court. When the Appeal was called on for hearing, the Appellant asked the court to adopt his grounds of appeal as indicated in his Petition of Appeal. Mr. Baraka, learned State Attorney who represented the Respondent, Republic, supported the conviction. Opposing to the ground that the alleged stolen money had no marks; the learned State Attorney submitted that, the ground is baseless since the stolen money was not a trap money. 3 He insisted that the appellant stole the money when the passengers had disembarked from the car to get a cup of tea when they reached Mkwajuni Village. The Appellant did so after telling them that he had no money and remained in the said car, only to disappear after stealing the said money in that car. On the sentence imposed by the trial Magistrate, Mr. Baraka submitted that it was fair because the offence with which the appellant was convicted of attracts a sentence of ten (10) years imprisonment with no option of fine. He averred that the trial Magistrate was so lenient because the offence does not fall within the offences stipulated in the Minimum Sentences Act, 1971 under schedules Nos. 1, 2 and 3. On the ground that the evidence was not well corroborated, Mr. Baraka's contended that the circumstantial evidence was well corroborated. The appellant was found in possession of stolen money. He failed to give an account for that money. The learned State Attorney contended further that of all the monies, the appellant claimed to possess had no proof as to how he got the said money. 4 Regarding the ground that the defence evidence; was not considered, it was submitted that the same was considered as shown in the Judgment. The case before the trial Court was proved beyond reasonable doubt. In rejoinder the Appellant added three other grounds. In his explanations, only one ground has a spot on. That is witnesses were not called to testify. He lamented that it was the OCD and OCS who compelled the Magistrate to convict him. In disposing this appeal, his grounds shall be resolved in seriatim. On the first ground, the appellant lamented that, he was convicted based on uncorroborated circumstantial evidence. The Law on circumstantial evidence is now well settled and trite. A court of Law will not ground a conviction solely based on circumstantial evidence unless the evidence irresistibly point to the guilty of the accused person. In other words such evidence must lead to the accused as the person who committed the offence charged with no possibility of another person having committed the offence. (See Sarker on Evidence, Fiftieth Edition, Reprinted 2004 at pages 66 to 61, The above principle was also emphasized in the cases of R. V. KERSTIN CAMERON [2003] T.L.R 84 and NATHANIEL ALPHONCE MAPUNDA AND ANOTHER V. R [2006] T.L.R 395. In both cases it was stated that where circumstantial evidence is relied on, the principle has always been that facts from which an inference of guilt is drawn, must be proved beyond reasonable doubt. The immediate question to be asked here, is whether the facts deposed and evidence against the appellant irresistibly lead to the guilt of the accused and not any other person? Going by the record of the trial court, at page 12 PW1, Yoackim Sanga is quoted saying:- when we arrive (sic) at Mkwajuni village, I park (sic) my motor vehicle and each of the passengers went to have lunch. Accused did not drop from the motor vehicle; he remained inside of the motor vehicle. Even though, I hesitated to leave accused person alone. Your honour, on return, I did not seen (sic) accused person inside the car, also the money was missing inside the drawer". The above piece of evidence entail that, non other than the Appellant was suspected of having stolen the money, since the Appellant was the only person who had remained in the car when the other passengers disembarked from it for lunch. Le Worse he left the car without informing the other passengers of his whereabouts. This piece of evidence was corroborated by PW4, Mashaka Fredrick, who gave PW1 a sum of Tshs.800,000/= on the way. PW4 is quoted to have stated:- on the material date, and on arrival of PW1, I gave him Tshs. 800, 000/ = kept onto the 'soft Rambo'. . At the same time PW2, Sarius Charles who was one of the passenger on the material day gave the following version of evidence at page 14 of the proceedings:- - - I recalls (sic) on 2511112013 I was going to Mkwajuni village via the motor vehicle Toyota Hilux. - - - - That on arrival at Songambele Street, Mashaka Fred rick gave PWJ his money kept on to the rambo. Upon receiving such amount of money, PW1 put or kept them into the draw of his motor vehicle and every one of us we saw such sachet and the place it was kept. - - - - and all us (sic) went together to have lunch to the nearby grocery by accused remained inside the motor vehicle - - - -". The evidence of PW2 therefore was well corroborated by that of PW1 as well. It follows therefore that, the appellant's allegation that the circumstantial evidence was not corroborated is baseless. 7 The second ground, too is baseless. I hold so because 5 it is clear from the Court's Judgment, that the learned trial Magistrate evaluated the defence evidence. It surfices to say that, this ground is devoid of merit as well. The second ground of appeal is therefore dismissed. The fourth ground of appeal is straight forward. The Appellant contended that the case against him was not proved beyond reasonable doubt. It is the principle of law that in order to ground a conviction, the prosecution must prove its case beyond reasonable doubt. As for circumstantial evidence as stated in the case of RV. KERSTIN CAMERON and NATHANIEL ALPONCE MAPUNDA AND ANOTHER V.R (Supra), facts from which an inference of guilt is drawn must be proved beyond reasonable doubt. As I have pointed out the evidence adduced by PW1 at the trial irresistibly pointed to the guilt of the appellant. Further more, the evidence was well corroborated by PW2 and PW4 who were fellow passengers in the car that was also used by the Appellant. The Appellant was the only person who remained in the car when the other passengers disembarked from the car. It was either not disputed that PW1 kept some money in the drawer of the car's Dash Board. N. The other obvious evidence to that effect was the fact that the Appellant disappeared with that money, and he was found with that sum, when he was arrested on the following day. This circumstantial evidence was correctly found to be watertight. The case against him was proved beyond any shadow of doubt. Consequently, the fourth ground is dismissed. The 5th ground of appeal is in respect to the sentence. The appellant contended that the sentence of five years imprisonment was excessive taking into consideration that the Appellant is the first time offender. The Law on interference of sentence by an appellant court was well stated in the case of R V. MOHAMED ALl JAMAL (1948) 15 E.A.C.A. 126. It was stated inter alia that an appellate court would interfere with a sentence of a trial court if it imposed a sentence which was either patently inadequate or manifestly excessive. The above principle was adopted with approval by the Court of Appeal of Tanzania in the Case of BERNADETA PAUL v. R [1992] T.L.R 97. More over, Section 269 of the Penal Code, Cap 16 R.E. 2002, under which the Appellant was charged provides :- "269. If a theft is committed under any of the following circumstances, that is to say if- (a) N.A. (b)N. A. (c) The thing is stolen from any kind of vessel or vehicle or place of deposit; (d)N.A. (e) N.A. CO N.A. the offender is liable to imprisonment for ten years". The trial Court in this case sentenced the Appellant to serve five (5) years imprisonment. In my considered view the principles set in the above cited authorities, appears to have been considered by trial Magistrate who was very lenient. As rightly submitted by Mr. Baraka, learned State Attorney the Appellant should have otherwise been awarded a stiff sentence. For this reason I see no reason to disturb the sentence imposed because the trial Magistrate was keen in considering the mitigation factors and the general circumstance of the case. For the aforesaid reasons, this Appeal is dismissed in its entirety. A.F. NGWALA JUDGE 20/05/2015 10 Date: 20/05/2015 Coram: HOn. A. F. Ngwala, J. Appellant: Present For Republic: Ms. Tengeneza State Attorney Court: Judgment delivered in the presence of the Appellant. Court: Right of Appeal to the Court of Appeal of Tanzania explained. Sd!4;Lof A.F. NGWALA JUDGE 20/05/2015 11