Wilfred Mwakisi vs Republic DC Criminal Appeal No

IN THE HIGH COURT OF TANZANIA

AT MBEYA DC.CR. APPEAL NO. 133 OF 2004 (From Rungwe District court at Tukuyu Original Cr. C. No. 66/2003) WILFRED S/O MWAKISU................... APPELLANT

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

JUDGEMENT MREMA J. This appeal Originated from the District Court of Rungwe District, at Tukuyu whereat Wilfred Mwakisu, in this appeal referred to as the appellant, was charged with the offence of office breaking and stealing c/s 296 - (11) and 265 o f the penal code. At the conclusion o f the trial the learned trial Honorary Magistrate Mr. R. J. Mwakibete was satisfied that the appellant was not guilty of the offence charged but in the alternative he found him guilty of the offence of receiving or retaining stolen property c/s 311-(1) of the Penal code__ on the strength of the authority of section 306 - (1) of Cr. P.A, 1985 that provides for alternative verdict. He was then sentenced to five years imprisonment under the authority of the stationary minimum sentences Act No. 1/1972. Aggrieved by the conviction and sentence Wilfred preferred the present appeal to this court. tVi In a nut- shell, the case for prosecution is that on the 17 of February at night time, at Kisindile Primary school, Rungwe District, the appellant was alleged to have broken into the said school office and stole from therein 3 iron bars, 3 basic English dictionary valued at shs. 30,000/=, one Advanced English Dictionary valued at shs 20,000/=, English and Swahili dictionaries for shs 14,000/= and other variety of books, all giving rise to an aggregate sum of Tshs. 429,400/=, the property of Kisindile

Primary school. The appellant (accused) denied flatly to have committed the offence. The breaking and stealing was noted by the headmaster of the school in the morning of 18/02/2003. The head teacher was Enos Mbondelo (PWI). He reported the incident to the village chairman, ward Executive officer and Police at Tukuyu. It was not immediately known as who was responsible for the breaking and stealing. Circumstances which led to the arrest of the appellant were narrated by SELU LUCAS (PW4) who was the village executive officer of Isajolo Village. A complaint was made to him against the appellant to the effect that he (accused) had stolen someone’s mattresses and that the appellant’s wife was seen selling the said mattresses. On 3/04/2003 the village chairman (PW2), a militia of that village one Elias Mwanjokolo (PW3) and PW4 set out to arrest the appellant. According to these witnesses they found the accused present at home and was about to go away as he was seen locking the door of his house. It is also their evidence that they saw him holding two books under one of his arm pit. One of the books was entitled “KAMUSI YA KISWAHILI” and the other book “HISABATI KITABU CHA PILI”. The trial court was further told that the appellant upon interrogation claimed that the two books are for his children. PW 2, PW3 and PW 4 noted a printed rubber stamp on the two books in the name

of KISINDILE PRIMARY SCHOOL. The appellant (DW I) was then led to the said school where DW1 allegedly confessed to have committed the offence and requested to be pardoned. According to PW3, the head teacher of the school (PW 1) insisted that the appellant and the exhibits should be surrendered to Tukuyu Police station. In defiance, it is the appellant’s case that on 3/04/2003 one Wilfred Mwakibinga called him (DW1) to attend a village meeting. At the meeting the village chairman (PW2) announced that there was theft that was committed in the village. Lydia Kisambwe was said to have been arrested with a stolen mattress, which she was selling; and that Lydia claimed to the village elders that she was given the mattress by DW1 to sell. He (DW1) went on to assert that the local leaders then informed him that he was a habitual criminal since 1998. His hands were then tied together with a rope. DW1 was brought to the primary school to meet PWI to whom a letter had been written by one Ambokile Paison, but DW1 did not know what its contents were all about. The said letter was then given to the head teacher of the school (PWI) and the latter came out from his office holding two books____headed: KAMUSI YA KISWAHILI and HISABATI KITABU CHA PILI (exhibits PI and P2), and as PWI was about to give them to DW1 the latter refused to accept them. DW 1 was then surrendered to the police station,

Tukuyu. There he was given PF3 to go to hospital (exhibit Dl). The appellant claimed that she was assaulted and badly injured on his head skull. In cross- examination he admitted that since 1998 the whole village hated him but he would not know for what reasons. D W l’s testimony was supported by the evidence of one SAUDA WILFRED (DW2), who is the appellant’s daughter. Her material testimony was to the effect that she was present at Kisindile Primary school on 3/04/2004 where her father (appellant) was surrounded by a large crowd of people by large crowd of people and had his hands tied together. As she was watching as what was taking place there DW2 saw the head teacher of the school coming from his office holding two books. DW3, also a pupil of that school repeated the same piece of evidence as that of DW2. I find only one question to pose here and this is; was the charge proved against the appellant beyond reasonable doubt? I would answer this question in the negative. First, although the alleged incident was reported to the Police, the prosecution did not lead evidence from police investing officers, if any, to inform the court as what were his findings. In the absence of such police witness, or sketch map depicting signs of alleged breaking of the school office, there remains reasonable doubt as whether it was true infact that the office of the school building was broken

into in that night material to the incident. Second, PW1 claimed that a variety of schoolbooks were stolen. But he never produced any documentary evidence establishing the real number of school books, including the title of the authors, were received by the school. Third, the circumstances the appellant was allegedly seen/ found with two books belonging to the said school are doubtful. The doubt cames about from the testimony of DW1 (the appellant) who was supported by her two witnesses to the effect that PW2 and PW3 saw the head teacher of the school coming out from his school while holding two books. Then the two books were given to the appellant to hold or carrying them. Another reasonable doubt is on the account that the case for prosecution has two different stories concerning the reason for having the appellant arrested. The first reason is that he was being suspected to have broken into one Chaile’s home and stole mattresses. Another version concerns breaking into school building and stole a variety of school books valued at various prices. As to the first allegation DW 1 was never charged with any offence nor was the said complainant called as a witness. Lydia, who was said to have been found with a stolen mattress and herself exculpating herself to the effect that the alleged mattress was given to her by Lydia, was not called before the trial court to comment on that

assertion. Coming to the incident relating to theft of books DW1 brought two witnesses (DW2 and DW3) who supported DW1 to the effect that they saw the head teacher of that school (PW1) coming from his office while holding two books which PW2 and PW3 forced him to receive them. The appellant’s story as why he received the two books appears more truthful than the Respondent’s care. The PF.3 (exhibit PI) reveals injuries on the accused (DW1) when the latter was brought to a doctor for medical examination. It is not impossible, therefore, that DW 1 was tortured so as to comply with what PW1, PW2, PW3 and PW4 wanted him to do. Finally, the evidence on record shows that DW1 was being suspected to be a habitual criminal in the village. It would therefore seem that the village leadership looked for a reason to have him booked to law so as to have him excommunicated from the society were he to be found guilty and sent to jail. In sum total, I am strongly satisfied that the magistrate was wrong to convict the appellant on evidence which is shakey and unstable. Therefore both the conviction and sentence cannot be allowed to stand. For the same reason the appeal is allowed, conviction quashed and sentence set aside, with the result of ordering the release of the appellant from the prison unless he is otherwise lawfully held . Accordingly it is sjp ordered. At Mbeya in the presence of the appellant, and Mr. Myenza Leonard state Attorney for the Respondent. ^ A. C. MREMA

JUDGE 10/04/2006