thomas jilala songoy vs dpp 2013 tzhc 2166 17 october 2013

IN THE HIGH COURT OF TANZANIA

AT SONGEA DC CRIMINAL APPEAL....................... NO...8...OF....................2013 (Originating from SONGEA DISTRICT COURT CRIMINAL CASE NO. 208 OF 2011) THOMAS JILALA SONGOY...........................................APPELLANT Versus THE D. P.P.................................................................... RESPONDENT Last Order: 14thAugust, 2013 Date of Judgment: 17th October, 2013

JUDGMENT FI KIRIN I, J: The appellant Thomas Jilala Songoy was charged with breaking into a building and committing an offence contrary to section 296 (a) and (b) of the Penal Code, Cap 16 R.E.

2002. The particulars of the offence were that on 22nd of October, 2011 at Deluxe Street within the Songea Municipality in Ruvuma region did break and entered into the office of Mpenda Haji @ Mvula and stole one computer make Dell valued at Tzs. 370,000/=, one printer photo make Smart HP valued at Tzs. 250,000/=, one phone handset make Zain valued at Tzs. 50,000/=, one wall watch valued at Tzs. 5,000/=, one cheque No. 105553313 valued at Tzs. 135,000/= and one lamination machine valued at Tzs. 160,000/= all total valued at Tzs. 1,120,000/= the property of Mpena Haji @ Mvula. The appellant denied the charge and prosecution summoned a total of four witnesses to prove its case. Based on their evidence the trial court convicted the appellant and sentenced him to ten (10) years imprisonment. Aggrieved by the Songea district court decision dated 04th October, 2012 the appellant appealed to this court having a total of eleven (11) grounds of appeal. General examination of the grounds of appeal filled, it was evident that the appellant was in essence challenging the whole prosecution case as not to have been proved beyond reasonable doubt. During the hearing the appellant submitted extensively at each point, the submission which I will consider in due course. Reacting to the appeal, the respondent through Mr. Mwamwenda canvassed through some of the grounds he challenged as to have been

well considered by the trial court. He nonetheless supported the appeal on the grounds of appeal regarding the identification of the stolen property, the identification of the property found in the appellant's possession, how the search and search warrant were handled and lack of summoning important prosecution witness. I had opportunity of going through the trial court record, the judgment, the grounds of appeal, and of course to listen to the submissions of both parties. My assessment will start with the identification of the stolen property and that of the appellant at the police station. From the record it is apparent that PWl-Mpenda Haji @ Mvula, was summoned to go to the police station to identify the stolen items. PW1 went to the police station and identified the retrieved stolen items shown to him as his. PW1 identified the items without any specific description of his stolen items when lodging his complaint or at the police station when he was summoned to identify the retrieved items. Likewise, in court the owner did not show any specific marks used to identify the properties so as to prove that the stolen properties were indeed his. Instead PW1 identified the properties based only on brand which in my view was not sufficient to conclude without doubts that truly the properties belonged to him. The case of Gitarey V. R (1971) H.C.D No. 130 referred to by Mr. Mwamwenda

was relevant and fitted well the situation in this case. Further to the above, while at the police station PW1 was also shown the appellant as the one who stole from him. As rightly submitted by Mr. Mwamwenda, the act of the police was contrary to the accepted identification procedures. The Court of Appeal, the High court and even the famous author of the criminal books such as Sarkar are against this practice of introducing a suspect to the complainant or to a witness while the suspect is in custody. The same was echoed in the case of Joseph Mbelwa V. R (2012) Criminal Appeal No. 228 CAT Iringa (unreported). In adding fuel to an already sinking boat, the prosecution tendered a cheque leaf through PW1, since this was one of the alleged stolen item. However, it was not known or explained to the court if the same was found in possession of the appellant or not. And if yes, how then did it get back to PW1? As far as identification is concerned, it goes without say, that the procedure was flawed and the identification of the property alleged to be stolen and retrieved was not watertight as required by law. The stolen items were common and readily available. For one to claim ownership there must be specific description to the satisfaction of the court. Turning to witnesses summoned in court, it was to the much surprise of the respondent as well as this court as to why the

prosecution left out an important witness one Haji Hamisi who is believed to have seen the whole event when taking place. It is him who informed his father, who then called police. Haji Hamisi was therefore an eye witness whose evidence was not only important but direct to the alleged committed offence. Pursuant to section 62 of the TEA, Cap 6 R.E. 2002, direct evidence was the best and much needed to pin down the appellant. And no one else apart from Haji Hamisi who could have provided the court with the so much needed evidence in solving the riddle. The other person who would have been on the same footing as Haji Hamisi is dead therefore nothing can be said or heard from him/her. The rest of the prosecution witnesses' evidence was a hearsay not so much appreciated kind of evidence. For the prosecution to leave such an important witness out makes one to believe that prosecution was hiding something, that this witness had he been summoned he might have disturbed the prosecution case. This conclusion was not far from what was said in the case of Hemedi Saidi V. Mohamed Mbilu (1984) TLR 113, that: "where for undisclosed reasons a party fails to call a material witness on his side, the court is entitled to draw an inference that if the witness(es) is/were called they would have given evidence contrary to the party's interest." See also: Mokesh Mlowe V. R (2013) Criminal Appeal No.

121 CAT Iringa (unreported) where none calling of an important witness was taken up. As stated above, I equally find myself concluding so since no explanation was given as to why such an important witness was left out. The exclusion of this witness be it by design or an accident has for sure weaken the prosecution case. This is more so when it is a known fact that no one saw the appellant breaking into the building. Therefore, the prosecution case is based solely on circumstantial evidence. Coming to search and the search warrant, first, it was not known with certainty which room was searched. According to PW2 upon seeing the appellant's belongings she was amazed considering the appellant's young 6 age and she became suspicious. She therefore reported the matter to police. On arrival, the police went and searched the other room where the items had been moved to. Since the appellant was not aware of the coming of the police, so the chances that he moved those items to hide from them was very minimal. The question which was not answered or explained by the prosecution is who moved those items and why? Second, from PW2's account the search was conducted and she signed the search warrant. According to her the search was conducted while there was a light. This was in a way negating the evidence that three different torches with different batteries sizes were as well used. One

wonders, if there was light then why use torches. Third, the police officers who went to search the place had contradicting story, one told the court upon searching the appellant's pocket trouser he found a watch and a phone. No description was given as to the type of the watch. The other police told the court what was found was a wall clock. The contradiction might look minor but for the purposes of justice the contradiction is serious as wall clock and wrist watch can in no way be described as to look alike, even though both are used in telling time. This as well weakened the prosecution case. When examining the recording of the caution statement of the appellant, it was clear there were anomalies, though this statement did not go into record. But still one would not stop to wonder that if PW1 could be summoned at 12 midnight to get his statement recorded why should the court not suspect or even conclude that the appellant caution statement was as well recorded at such awkward time. As submitted by the respondent that the police motive is in most cases to build their case, they can therefore do whatever it takes suit their case. Otherwise under normal circumstances why would one want to do things at night? See: Aloyce Mgovano V. R (2012) Criminal Appeal No 182, CAT Iringa (unreported) Finally, I examined the appellant's defence of alibi how it was dealt with. The appellant

raised the defence of alibi from the word go but the trial magistrate ignored it completely without giving any reasons. The Court of Appeal emphasized on consideration of the defence of alibi in the Mokeshi's case (supra). In the present case, the fact that the appellant raised it from beginning, the consideration that it was an afterthought, should not have a place. And even if, that is what the trial magistrate had in mind, then it should have been reflected on the record. The court's action of ignoring the defence of alibi raised, left the prosecution without a chance of proving this aspect beyond all shades of doubt. It is very unfortunate that in criminal cases, the doubt however small it can result into collapse of the prosecution case. In this appeal both small and huge doubts explained above have in my view led to the crumpling of the prosecution case. This appeal is thus allowed by quashing the conviction and setting aside the sentence. The appellant be released from prison forthwith unless lawfully held for other reasons. It is so ordered. Judgment Delivered this 17th day of October, 2013 in the presence of