Moja CRIMINAL APPEAL 116 OF 2023

THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA (MBEYA SUB-REGISTRY)

AT MBEYA CRIMINAL APPEAL NO. 116 OF 2023 (Originating from the decision of District Court of Mbarali at Rujewa in Criminal Case No. 279 of 2022) SENI S/O LENGE................................................................. APPELLANT

VERSUS THE REPUBLIC.............................................................. ...RESPONDENT

JUDGMENT Date of last order: 30/09/2023 Date of Judgment: 08/12/2023 NDUNGURU, J. The appellant in this appeal, Seni s/o Lenge was arraigned before the District Court of Mbarali at Rujewa (herein referred as the trial Court) along with one, Mahona s/o John (2nd accused) who was acquitted by the trial Court, with a single count of cattle theft contrary to section 265 and 268 (1) and (3) of the Penal Code (Cap 16 R.E. 2022). It was alleged that, i on 21st day of October 2022 at Imalilo Songwe village within Mbarali District in Mbeya Region, unlawful did steal two head of cattle valued at Tshs. 1,200,000/= the property of one, Lengi s/o Simbasi. The appellant and the above named another person, pleaded not guilty to the charge. Consequently, the trial was conducted whereby the prosecution called a total of four witnesses and relied on one exhibit (the appellant's cautioned statement) to prove its case. Trial Court found both accused persons had a case to answer during closure of the prosecution case. On the other hand, the appellant and another person called one witness in their defence case. After full trial, the Court found the appellant guilty of the offence and thereafter convicted him and consequently sentenced to serve five (5) years imprisonment while one, Mahona s/o John (2nd accused) was acquitted. The appellant was aggrieved with both conviction and sentence, hence this appeal. The appellant has preferred the present appeal based on five grounds of appeal, namely: 2 1. That, the trial magistrate erred in law and fact by convicting the appellant though the prosecution had not proved the case against him beyond reasonable doubts.

2. That, the trial magistrate erred in law and fact by convicting the appellant while ingredients of theft were not proved.

3. That, the trial magistrate erred in law and fact by convicting the appellant on weak, contradictory and unreliable evidence of the prosecution.

4. That, the trial magistrate erred in law and fact by importing extraneous matters in her analysis hence unjust decision.

5. That, the trial magistrate erred in law and fact by disregarding the defence evidence. When the appeal was placed before me for hearing, the appellant was represented by Mr. Felix Kapinga, learned advocate whereas Mr. George Ngwembe, learned State Attorney appeared for respondent/Republic. The appeal was disposed of by way of oral submissions. In supporting of the appeal, Mr. Kapinga opted to argue 1st, 2nd, and 3rd grounds of appeal jointly and together to the effect that the case was not proved beyond reasonable doubt against the appellant on the ground that all witnesses no one had testified to have seen the appellant stealing 3 the cattle. He added that, the said stolen cattles were not produced in Court to prove that they were found in the appellant's hand. To buttress his stand point, he referred the Court to the case of Geophrey Jonathan Mwakalomge v The Republic, Criminal Appeal No. 126 of 2020, HC at Mbeya (unreported) which discussed the importance of the identification of stolen cattle before the Court. Finally, he urged me to see that the case against the appellant was not proved. As to the 4th ground of appeal, Mr. Kapinga argued that, it is trite law that every judgment should be based on the evidence on record. Referring to page 4 of the typed proceedings of the trial Court to the effect that, the trial magistrate flavored his judgment with extraneous matters

to justify conviction. To bolster his submissions, he cited the case of Lucas Venance @ Bwandu & another v The Republic, Criminal Appeal No. 392 of 2018, CAT at Mbeya (unreported) which discussed the legal effect of inclusion of the extraneous matters in the judgment. On the 5th ground of appeal, Mr. Kapinga contended that, the appellant is defence was not considered at all. He added that, in his defence the appellant denied to have involved in stealing, the date of 4 arrest and event are quite different but all that was not considered by the trial magistrate. He also argued that, the trial magistrate just made summary of evidence but analyzed only persecution evidence and ignoring the defence case. To back up his stance, he referred the Court to the case of Abe! Masihiti v Republic (2015) TLR 21, it was held that, thus failure for the Court to consider the defence made the trial magistrate to arrive at a wrong decision. In conclusion, he urged this Court to allow the appeal and the appellant be released from the prison. In rebuttal, Mr. Ngwembe commenced his submission by stated that he was not support this appeal and continued to argue that, the appellant had confessed in his cautioned statement to had stolen the cattles. He also contended that, the appellant never objected the cautioned statement when tendered. He further submitted that, confession by the appellant was a

voluntary one. He sought to support his argument with the case of Jumanne Issa & another v The Republic, Consolidated Criminal Appeal No. 54/55 of 2021, CAT at Kigoma (unreported), it was held that, confession is always presumed to be voluntary until the contrary is suggested by raising an objection. He went on to submit that, though 5 cattles were not produced as exhibits, but is clear that the appellant knew the cattles and he managed to steal them. Finally, he urged me to dismiss the 1st ground of appeal. ■ As regards the 4th ground of appeal, Mr. Ngwembe submitted that, there was nothing new to be taken as extraneous matter particularly the referred page. He also argued that, in his cautioned statement the appellant said to had given her mother the proceeds of sale of the stolen cattle. In conclusion, he prayed the Court to dismiss this ground of appeal. in relation to the 5th ground of appeal, Mr. Ngwembe submitted that, the appellant's defence was considered by the trial Court., but the defence did not raise doubts or weaken prosecution case in anyhow. He added that, this Court being the first appellate Court it has the duty to consider defence and come with its findings. Based on his submissions, Mr. Ngwembe implored me to dismiss the appeal. In his briefly rejoinder, Mr. Kapinga reiterated his submission in chief. He added that, the appellant confessed to have stolen

only one cattle not two, hence the prosecution has the duty to prove those allegations. Finally, he prayed the Court that the appellant be released. 6 I have dispassionately heard the submissions for and against the appeal and after considering the grounds of appeal and also the basis for the trial Court conviction, I find that the crucial issue calling for determination is whether or not the charge against the appellants was proved to the required standard. In the present appeal, it is common ground that, the appellant was convicted on the basis of circumstantial evidence and the appellants cautioned statement (exhibit PEI). In the first place, it must be noted that, in order for the accused person to be convicted based on the circumstantial evidence, the facts must be so connected to lead to no other conclusion than the guilt of the accused person. See the cases of Hamad Mussa v Republic (1993) TLR 123 and Republic v Kipkering Arap Koske & another (1949) 16 E.A. CA 135. What is in controversy is whether the complainant positively proved the said to be his property. The major requirement for proving that the stolen property belonged to the complainant is met by disclosing a specific identification of the same. It is settled law that, the identification of goods or property suspected to have been stolen, especially common goods that 7 can be bought from shops or owned by other

persons, is properly done through special marks. See the case of Augustmo Mgimba v The Republic, Criminal Appeal No. 436 of 2019, CAT at Iringa (unreported), The question to be addressed at this point is whether the facts on the record it is only connect the appellant to the commission of offence and no other person. It is not disputed that, the property alleged to have been stolen was not found in the possession of the appellant. Also, it is not disputed that, there was no an eye witness to the cattle theft by the appellant. In the instant case, the complainant testified that, in the night of 21sh day of October 2022, he heard his dogs barking for a long time outside of his house, then he thought his son (appellant) was returning home from the village. Also, the complainant said that, went up to the cowshed where dogs were barking while lightened his torch, he saw two people with appellant at the door of the cowshed opening the door, the said two people run away when saw the complainant. Further, the complainant testified that, he followed the cows up to the forest and found them at a length almost of one acre tied at the tree. 8 More so, the complainant testified that, one of his cattle had white colour and the other was red colour. But the both cattle were female. I am of the view that, these cannot be special marks for purposes of identifying cattle. This is because, it is

common ground that cattle are owned by different people and have common colours. There was also no evidence that the complainant was only person in the locality owning cattle of such colours. Again, it is settled law that, there are what so called the pre-trial procedure and the in-trial procedure. In the instant case, the in-trial procedure is only applicable as per circumstances of the present appeal. Regarding the in-trial procedure of identifying stolen property this Court In the case of Henery Gervase v Republic (1967) HCD 129, it was held that: "The acceptance of these b!and assurances by the Court lays the way open for many dangers and such identification would not be in any way acceptable even in a civil Court. In criminal case, claimant should be asked for marks on the property 9 before it is shown to him, from which the ownership can be established to the beyond reasonable doubt./z The similar procedure is well emphasized in the case of Nassotro Mohamed v Republic (1967) HCD 446, this Court inter alia stated that: "77?e proper procedure for identification of property in Court is that the claimant should describe the item is eventually tendered whether or not he was able to identify it." From the wording of the authorities cited above, it is clear that, the complainant must be first asked for special marks on the property before it is shown to him. On that regards, it

can be clear to the Court that, the complainant was able identify the property. In addition to that, it is settled law that, when an identifying witness is testifying in Court on the identity of the stolen property, the trial Court must make a note in the record of the case indicating the method on how the witness identifies the property. This stance is underscored in the case of Mbeswa Chiloya v Republic (1970) HCD 210, it was held that: io "Again there is no note on the record as to how he had made the identification. It has been said over and over again that trial .magistrates should not be content to accept bare statements from witnesses that they identify as their property articles which are of ordinary manufacture commonly used by a large number of people." In the instant case, there is no evidence on record as to how the complainant had made the identification of his cattle in Court, that evidence will assist this Court to form some opinion as to the likelihood of the accuracy of the identifying procedure as demonstrated above. Besides, the cattles were not tendered in Court as exhibit, nor were they shown to Court to prove identification and ownership. It is thus, nor dear as to how the trial Court believed that the complainant had properly identified the head of cattles during the trial. The same stand is well stipulated in the case of Bakari Omary Goda v Republic,

Criminal Appeal No. 66 of 1985, HC at Dodoma (unreported), it was held that: 11 "In cases involving identification of stolen goods, failure to tender the property alleged to have been stolen in evidence weakens the prosecution.,z Guided by the principle quoted above, it is clear that, where the allegedly stolen property is not tendered as exhibit in Court, the trial Court will not have the requisite opportunity to determine whether or not the complainant has properly identified the property in Court. The Court will thus, remain with doubts in mind on the veracity of the fact that the goods at issue are indeed related to the charge before it. On that regards, the trial Court will not be in a proper position to correctly apply the circumstantial evidence to convict the appellant. From the discussion above, this Court find that, there is no any chain of evidence so far complete as not to leave reasonable ground for a conclusion there from consistent with the innocence of the appellant. Also, the chain to the events is not accurate to show that the theft was really done by the appellant. Further, there is no a tangible series of circumstances which is dependent on one another so as to be read as one integrated whole of proof of circumstantial evidence. On that regards, 12 there is no sufficient evidence at ail that connects the appellant to the theft apart from suspicious. In my

considered view, the. identification of the cattles in the instant case violated the in-trial procedures of identifying the stolen goods. In the premises, the prosecution evidence did not thus, prove the identification of the cattle beyond reasonable doubts. Therefore, I am of the view that, it cannot be argued that, the circumstantial evidence was proper basis for the conviction against the appellant. In relation to the cautioned statement, it is settled law that the statutory period available for the police to interview person suspected to have committed offence are closely regulated by the law under section 50 (1) and 51 (1) of the Criminal Procedure Act, (Cap 20 R.E. 2019). Section 50 (1) (a) of the CPA has prescribe the initial period of four hours for police interview, counted from the time when the accuse is place under restrain in respect of the offence. In case on extension of the time interview desirable, conditions for extension are prescribe under section 51 of the CPA. There is no doubt the appellant was arrested around 13:00 hours on 21st day of October 2022, but his cautioned statement recorded around 13 18:00 hours on 21st day of October 2022, five hours after arrest, which was outside the periods prescribe by the law. In that regard, failure to object admissibility of a cautioned statement that is found to have been recorded out of time would not save it. See

Iddi Muhidin @ Kibatamo v Republic, Criminal Appeal No. 101 of 2018, CAT (unreported). In the premises, it cannot be argued that, the appellants cautioned statement was proper basis for the conviction against the appellant. Apart from what discussed above, in law, one cannot be convicted for admitting or confessing the commission of a crime the elements of which are not proved in evidence. In the premises, in the absence of a proper identification of the stolen cattle in the instant case, such evidence cannot be applied against the appellant. See the case of Geophrey Jonathan Mwakalomge v The Republic (supra) as well cited by the counsel for the appellant in submitting. In the event, I am of the settled view that, the prosecution case was not proved beyond reasonable doubt against the appellant. I thus, find the appeal with merit and accordingly allow it, quash the conviction and set aside the sentence meted out against the appellant. Further, I order the 14 release of the appellant from custody unless his continued incarceration is in relation to other lawful cause. It is so ordered. D.B. NDUNGURU

JUDGE 08/12/2023 15