20181128 TZHC Dodoma 1

I

IN THE HIGH COURT OF TANZANIA (DODOMA DISTRICT REGISTRY)

AT DODOMA DC CRIMINAL APPEAL NO. 54 OF 2018 (Original Criminal case No. 95 of 2017 of the District Court of Iramba at Kiombol) Z EBEDO1Y'O lI.!ILLIAM... ......... . . ....... ....... ... . .. .. . .. .XUAPPELL..ANT

VERSUS THE 2611012018 & 2811112018

JUDGMENT MASAJU, J. The Appellant, Zebedayo William and one Mpinga Hamis were together and jointly charged with the offences of Breaking into Building with intent to commit an offence therein contrary to section 296 of the Penal Code, [Cap 16] and Stealing Contrary to sections 258 and 265 of the Penal Code. At the end of the trial Mpinga Hamis was, acquitted of both offences but the Appellant was convicted of the offences and sentenced to three (3) years imprisonment in respect of the 1st count and two (2) years imprisonment in respect of the 2nd count. The sentence to run concurrently. In addition, the Appellant was ordered to compensate the complainant a sum of TZS 200,000/= by the District Court of Iramba at Kiomboi. 1 Aggrieved by the conviction and the sentence thereof, the Appellant has come to the Court appealing against the decision of the trial Court. The Appellant has filed in the Court the Petition of appeal which bears five (5) grounds of appeal but in essence the said grounds of appeal boil into one ground thus; 1 That the prosecution side failed to prove their case against him beyond reasonable doubt." The appeal was heard in the Court on the 26th day of October, 2018 whereby the Appellant being a layman adopted the grounds of appeal in the Petition of Appeal to form the submissions in the Court as he prayed the Court to allow the appeal by quashing the conviction

and set aside the sentence thereof. The Respondent Republic was represented by Ms Rachel Tulli, the learned state Attorney, who contested the appeal, though desparately. The Respondent in the first place so rightly submitted that sections 300- 309 of the Criminal Procedure Act, [Cap 20] sanctions alternative verdicts and that a person charged with the offence of:Burglary under section 294 (1) (a) (b) (2) of the Penal Code [Cap 16] could be convicted of the offence of Breaking into a Building and commit ting 'a crime therein under section 296 of the Penal code Cap 16] and Stealing contrary to sections 258 and 265 of the Péhal Code, [Cap 16j. Secondly, the Respondent submitted that there was enough evjdence to prove the crime against the Appellant beyond reasonable doubt because -2 the Appellant upon arrest he admitted before Julius Mpinga (PWI), the proprietor of the Video show Hall, ShaIua Shalua(PW2), acting VEO, Marco Mazoea (PW3), village Chairman that :he committed the crime at about 02:30hrs. The Appellant was arrested at 08:00hrs on the same day but he was not found in possession of the properties that have allegedly, been stolen from the scene of crime. The alleged confession of the crime was not reduced into written form. No Police officer or any investigation officer who testified in the trial Court. Yet, the Respondent still prayed the Court to dismiss the appeal in

its entirety for want of merit. In rejoinder, the Appellant had nothing to .add but prayed the court to decide. . Legally speaking, the prosecution case was fraught with weaknesses that negatively affect the proof of the case beyond reasonable doubt. In the first place the appellant was implicated and arrested for the two offences, allegedly because of the two sets of foot prints that led to the •..i Appellant's home. This is according to the testimony by Julias Hamis Mpinga (PW1), the complainant. Such evidence, is not reliable at all. 'Someone might have committed the crime and passed by the Appellant's h'ome. Again it is not possible to prove that the said foot prints befonged to the Appellant. The Appellant was arrested ,at 08:00hrs (in the morning) he was not found in possession of any of the properties that were allegedly stolen from the complainant's Video Show Hall. The offence was allegedly committed at night. '-3 Although the prosecution's witnesses PW1, PW2 & PW3 alleged that upon his arrest the Appellant confessed.. before them that he was the one who had committed the crime, the alleged confession was not. reduced into written form. The witnesses PW2 and PW3 being the Village Executive officer and Village Chairman respectively were men of authority who could have asked the Appellant to commit himself in writing that he had committed the crime. Since there was no

such piece of 'evidence forthcoming, it is a testing encounter to believe that the Appellant ever confessed before the prosecution witnesses (PW1, PW2 & PW3) that he was the one who committed the crime. The credibility, if any, of the prosecution witnesses becomes more suspect when it is taken into account that no police officer testified in the trial Court. That is why the Appellant in one of his grounds of appeal argues that the case against him was poorly investigated. The Appellant testified in the trial Court that when he was arrested he was beaten by the people who forced him to name his uncle, one Mpinga Hamis who was then joined in the crime as the 2nd accused person (as he then was). That he named him in order to save his own life. The Appellant's repudiated confession found no other independent corroborative piece of evidence that could have been the basis for his conviction. When all is said and done, such areas of improvement on the prosecution case affects the would be proof beyond reasonable doubt against the Appellant. That is to say, the prosecution did not prove the case against the Appellant beyond reasonable doubt. The appeal is allowed. His conviction is quashed. The:.sentence and the order thereof are hereby set aside accordingly. The Appellant shall be set at liberty forth with unless he is otherwise held for some other lawful cause. GEORGE M. MASAJU )UDGE 28/11/2018 5