CRIMINAL APPEAL NO 31780 OF 2024 NEW 22

IN THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA CRIMINAL APPEAL NO. 31780 OF 2024 (Arising from the decision of the Resident Magistrates' Court of Mtwara at Mtwara in Criminal Case No. 79 of2022) SHABANI SALUM CHIHEPO............................................................. APPELLANT VERSUS THE REPUBLIC............................................................................ RESPONDENT JUDGMENT 3° & 2(3 March 2025. DING'OHI, J; Shabani Salum Chihepo, the appellant herein, together with Salum Abdallah Haji who is not part of this appeal were jointly and together arraigned before the Resident Magistrates' Court of Mtwara at Mtwara (trial court) on an indictment of two counts namely; Burglary contrary to section 294 (1) and (2) of the Penal Code [CAP. 16 R.E. 2022] and Stealing contrary to sections 258 and 265 of the Penal Code [CAP. 16 R.E. 2022]. The particulars of the offence as per the charge sheet were that, on the 10th day of July 2022 (the material day) during the night hours, the appellant together with Salum Abdallah Haji broke into the dwelling house Page 1 of 16 of Haji Juma Haruni (PW1) and stole from therein the following items; one flat screen Television 32 inches make PMC, four trousers, two men shirts, one mobile phone make Tecno, plumbing tools, six kilograms of rice, and cash amounting to TZS. 4,000/=, all these items have a total value of Tshs 505,800/=. Upon trial, the court was satisfied that the prosecution side had proved beyond a reasonable doubt that the appellant and his co-accused had committed all the offences they were charged with. As a result, they were convicted and sentenced to serve four years imprisonment each for the first count, and three years imprisonment each, for the second count. Undaunted by the trial court verdict, and in his efforts to challenge the conviction and sentence imposed on him, the appellant has preferred this appeal before this court predicated on the following five (5) grounds of complaint, namely: One, the case against him was not proved beyond a reasonable doubt. Two, he was convicted based on the defective charge. Three, the trial court failed to analyze and evaluate both prosecution and defence evidence. Fourth, the trial court relied on a cautioned statement which was objected to by him; and Five, he was convicted by the trial court while the doctrine of recent possession was not rightly applied. Page 2 of 16 The factual background of the instant appeal that justified the appellant's conviction and sentence is inevitable to portray as it is not complicated. It may be narrated as follows; On 10th July 2022 around 2200 hrs, Haji Juma Haruni (PW1) the one who alleged his house was broken into, and items stolen, went out to escort his relative Ziada Karimu to her working place. Later, he decided to proceed to a famous place here in Mtwara called the 'police mess', where he stayed till midnight. After returning home, he found the door of his house broken and some items listed above stolen. The incident was then reported at the police station. Nine days after the incident, PW1, together with Shafii Said (PW2), saw the appellant wearing clothes (Exhibit P2) while carrying a bag (Exhibit P3) which PW1 believed were his stolen belongings. The appellant was asked by PW1 where he had obtained the items, whereby he replied that someone whom he did not mention his name at that time had sold them to him. Thereafter, the PW1 and PW2 decided to arrest the appellant and take him to the Mtwara police station. When they arrived at the police station, they met with G 1224 D/CPL Florence (PW4) who prepared a seizure certificate (Exhibit P5) and seized the alleged stolen clothes and bag. PW4 also seized the Tecno Page 3 of 16 mobile phone (Exhibit P6), from the appellant. On the same day, PW4 recorded the appellant's statement. In the cautioned statement (Exhibit P8), the appellant is alleged to have admitted to having committed the offences together with Salum Abdallah Haji. The appellant's statement led to the arrest of Salumu Abdallah Haji who, after being arrested, named Antony Mkuti (PW3) as the person to whom he sold the said stolen television (Exhibit Pl), and thereafter led PF 23984 A/Insp Elisha (PW5) to the house of PW3. In the search, PW5 seized the alleged stolen television per a certificate of seizure (Exhibit P9). The search process was witnessed by Hashimu Selemani Mbutuka (PW6), who was the chairman of Mtepwezi Street. On further interrogation, on 22nd July 2022, PW4 also seized another Tecno phone (Exhibit P6) from Salumu Abdallah Haji through a certificate of seizure (Exhibit P7). In his defence, however, the appellant denied having committed the offences charged. As I have said, the trial court entered a verdict of guilt against him and sentenced him accordingly. The appellant as I have said is against the conviction and sentence. Page 4 of 16 At the hearing of the appeal, the appellant appeared in person, unrepresented. On its part, the respondent Republic was represented by Mr. Edson Laurance Mwapili, learned State Attorney. When the appellant was called upon to submit his grounds of appeal, he adopted his grounds of appeal without any further elaboration and opted to hear the reply submission from the Republic first. He, however, reserved his right to rejoin if the need arose. The learned State Attorney began his reply submission by indicating that the Republic supports the conviction and sentence imposed on the appellant by the trial court. In his rebut to the appellant's first complaint that the prosecution side at the trial court failed to prove two counts beyond a reasonable doubt, Mr. Mwapili reminded that the appellant was charged with Burglary and Stealing. According to him, they have been able to bring PW1, who clarified how his house was broken into and her properties mentioned in the charge sheet stolen. Through the evidence of PW4 and documentary evidence in Exhibit P8, the learned State Attorney submitted, the appellant admitted that he and the second accused person broke into the house of PW1 during the night and stole the properties mentioned in the charge sheet. Page 5 of 16 He submitted further that when PW4 requested the caution statement (Exhibit P8) to be admitted as an exhibit, the appellant did not materially object to its admissibility. Hence, he supports the findings made by the trial court, which found the prosecution side to have proven the charge of the two counts against the appellant beyond a reasonable doubt. The learned State Attorney also drew the attention and invited this court to the authority in Nyerere Nyague vs. Republic (Criminal Appeal Case 67 of 2010) [2012] TZCA 103 (21 May 2012) where according to him, the Court of Appeal stated that the best evidence is from the accused person who admitted that he had committed the offence. Turning to the fourth ground of appeal, Mr Mwapili submitted that there is no dispute that the trial court put reliance on the cautioned statement in convicting the appellant. The learned State Attorney submitted further that the appellant objected to the admissibility of a cautioned statement (Exhibit P8) but, according to Mr Mwapili, the same was not on the point of law. The learned State Attorney quoted the appellant's words at the trial court when he was asked about the admission of Exhibit P8 and recorded to have said, 'I deny the caution statement for I did not state...' Page 6 of 16 — V Mr. Mwapili was of the view that the statement by the appellant falls short of being called a point of law, and that is why the trial magistrate did not consider it. In addition to that, the learned State Attorney paid homage to the case of Mukisa Biscuit Co Ltd vs. West End Distributors Ltd [1966] EA No. 666. He thus prayed the court to dismiss this ground of appeal. In response to the third ground of appeal that the trial magistrate did not consider the evidence of both sides in making its analysis and evaluation thereof, Mr. Mwapili had an opposing view. He contended that the learned trial magistrate fulfilled his magisterial duty properly and it was when he found the appellant, and another, guilty of the offences and sentenced them accordingly. He further argued that, if this court finds that the trial court did not evaluate and analyze the evidence properly, the court, being the first appellate court, may step into the shoes of the trial court to analyze and re-evaluate the evidence available in the trial court record and arrive at its own decision. With regard to the complaint on the 2nd ground that the appellant was convicted on the defective charge, the learned State Attorney argued that the charge sheet in the trial court record was properly and or well Page 7 of 16 framed per the provisions of section 135 of the CPA, RE 2022. He hence prayed this ground to be dismissed. Mr. Mwapili summed up the last ground of the appeal by arguing that it is not evident that the trial court applied the doctrine of recent possession in finding a conviction against the appellant. It believed and acted upon the evidence of PW1, PW4, and exhibit P8 in finding the conviction of the appellant. The appellant on his part had nothing useful to submit in rejoinder. He urged me to consider his appeal, resolve it in his favor, and set him free. I have examined the records of appeal in relation to the grounds of appeal raised by the appellant and the submission by both sides. As a starting point, I wish to begin with the fourth ground on the propriety in the admissibility of a cautioned statement (Exhibit P8). The appellant stressed that the trial court erred in convicting him, relying on the cautioned statement, which he had objected to being admitted in court. The learned State Attorney implored me to dismiss this ground as it is true that when Exhibit P8 was tendered, the appellant objected to its admissibility. However, according to Mr. Mwapili, the objection was not Page 8 of 16 based on a point of law. He, hence, maintained that the trial court was proper in convicting the appellant based on the caution statement. Admittedly, it is a well-established principle that once the cautioned statement is retracted or repudiated during admission, the court has to stop everything and move to conduct an inquiry or trial within a trial. This position has been expounded by the Court of Appeal in various cases, including in Omary Iddi Mbezi & Others vs. Republic (Criminal Appeal No. 214 of 2017) [2020] TZCA 207 (5 May 2020), where the Court said; 'Case law is dear that where a statement is repudiated or retracted or its voluntariness challenged, an inquiry or trial within trial must ensue. Failure to proceed as such, renders the cautioned statements of the 1st, 2nd, 3rd, and 7th appellants collectively admitted as Exhibit PE3 is an incurable irregularity. Similarly, the Court in the case of Seif Omary Ngwata @Kazole/Babu & Others vs. Republic (Criminal Appeal No. 188 of 2021) [2024] TZCA 578 (17 July 2024) quoted with approval the passage in Twaha Ali & 5 Others vs. The Republic, Criminal Appeal 78 of 2004) (unreported), it was observed inter-alia that; Page 9 of 16 '... it is not the law that there is a presumption that a confession or statement was not made voluntarily until the contrary is proved. On the contrary it will be presumed to have been voluntarily made until objection to it is made by the defence on the ground that it was not so or that it was not made at all, etc. If that objection is made after the trial court has informed the accused of his right to say something in connection with the alleged confession, the trial court must stop everything and proceed to conduct an inquiry (or trial within trial) into voluntariness or not of the alleged confession. Such an inquiry should be conducted before the confession is admitted in evidence.' The records in the instant case, as shown on page 28 of the trial court-type proceedings, suggest that when PW4 requested to render the appellant's cautioned statement before the trial court, the appellant objected to having the caution admitted as an exhibit. Then the trial court continued to admit the same. For clarity, this is what transpired in the proceedings of that day, though with grammatical faults, I quote; Page 10 of 16 'I have been the statement and identified it to be the one for it because all I said before. I pray to tender it as exhibit Court: Prayer granted. Sgd: M.F.Esanju - RM 19.01.2023 1st accused: I deny the caution statement for I did not so state. 2fd accused: I know nothing on the statement. Court: The caution statement of Shaban Saiumu Chihepo dated on 19/07/2022, recorded by G.1224 D/CPL Florence, on bungling and stealing, signed by both of them, is admitted as exhibit and marked as exhibit P8.' From the above extract and after going through the records carefully, it appears that the appellant's denial of the caution statement is purely on the fact that he did not say what was written in that caution statement. However, despite the objection raised against the cautioned statement, the trial magistrate did not proceed to inquire into the raised objection. The learned trial magistrate proceeded to admit the same as an exhibit. Based Page 11 of 16 on the authorities cited above, I am of the view that the procedure adopted by the learned trial magistrate was improper, making Exhibit P8 inadmissible before the court. That being the position exhibit P8 will not remain surviving. It is hereby expunged from the records. I will now come to consider the first ground of appeal. The complaint that the case against the appellant was not proved beyond a reasonable doubt. The trial court records provide that after going through the evidence by both sides the learned trial magistrate was satisfied that the case against the appellant was proved beyond a reasonable doubt. In arriving at the foregoing finding, the trial magistrate entirely relied upon the cautioned statement, which was the only evidence featured by the prosecution in support of its accusation. For instance, on page 10 of the trial court judgment, the trial magistrate was quoted as saying; 'Having voluntary confessed to the offences charged with I find no better evidence than this to find the first accused person guilty of the charged offences. In any case it was the first accused person confession which led the police to the second accused person.' Page 12 of 16 Having already expunged the caution statement, which was done contrary to the law, the issue is whether there is other evidence that may be based on finding a conviction of the appellant. I have carefully gone through the record. In this case, the record is clear that there was no eyewitness who saw the appellant committing the alleged offences. As shown herein above, the prosecution's case depended on exhibit P8 (cautioned statement) and the seizure of the alleged stolen items. However, having scrutinized the entire court records, specifically the testimony of PW1, who was the alleged owner of the stolen properties, I realized that the records are uncertain on the identification of exhibits because the details given by the witnesses to the identification of exhibits were too general. For the sake of clarity, on page 23 of the typed proceedings, PW1 in examination in chief had this to say, and I quote; 'My TV Flat one, black In colour, make PMC and is 32 inches wide. The TV was still new and having a plastic paper on its minor. Pros: I pray to show the TV to PW1 for ID Purpose. Court: prayer granted. Sgd: M.F.Esanju - RM Page 13 of 16 13.10.2022 I have observed the TV I have identified it as mine for it because I said before. I pray to tender is as exhibit. Court: Prayer granted.' In my view, the above-extracted piece of evidence from PW1 does not reveal the exact details of exhibit Pl, the TV. In my opinion, the information given by PW1 about that TV could be given by anyone. However, on the testimony, PW1 stated that the said television (Exhibit Pl) was brand new and had with its plastic paper. Be as it may, the question is why PW1 did not even produce a receipt to prove that his stolen TV is the one that was tendered and admitted as an exhibit in this case. There is yet another doubt. The properties listed in the charge are different from the properties mentioned by witnesses during the trial. For instance, in his testimony, as reflected on page 26 of the trial court-type proceedings, PW4 avowed that he seized the three phones from the appellant and another, but in the charge sheet, there is mentioned only one phone which is said to have been stolen. Taking the foregoing, in its totality, I find the prosecution side had failed to prove the charge against the appellant beyond a reasonable Page 14 of 16 doubt. The doubt as pointed out herein above should be resolved in favor of the appellant. That position was highlighted by the Court of Appeal in Jimmy Runangaza vs. Republic (Criminal Appeal No. 159 "B " of 2017) [2018] TZCA 188 (27 August 2018), where it was stated that; 'In our view, the doubtful evidence is even more worse as it is no evidence at all. It cannot be used to corroborate another evidence. It is settled law that, in criminal cases where it is found that there are doubts, then those doubts have to be resolved in favour of the accused person.' That said, I agree with the appellant that the charge against him in the trial court was not proved beyond a reasonable doubt per the law. That I think is enough to dispose of this appeal the way am about to do. The appeal is hereby allowed. The conviction and sentences imposed on the appellant by the trial court are hereby quashed and set aside. The appellant is to be released forthwith from prison unless held thereat in connection with other lawful reasons. DATED at MTWARA this 26th day of March 2025. Page 15 of 16 S.R. DING'OHI JUDGE 26/03/2025 Court: Judgment delivered this 26th day of March 2025 in the presence of Mr Edson Laurance Mwapili, the learned State Attorney, and the appellant in person. JUDGE 26/03/2025 Page 16 of 16