Marcelin Ndonde vs Republic (Criminal Appeal No. 89 of 1999) [2000] TZHC 486 (18 October 2000)

' , Ill THE HIGH C'OURT OF TAN! ,ANIA AT tRINGA ---- -=·- CRIHINAL APPEAL NO. 89 OF 1999 ,. ORIGINALSONGEA D/COURT CRIMTI'JAL CA.SE N0.532/98 Before: H.Jo I'-wankcnja Sen" District Magistrate MARCELIN NDOHIJE .. ••••occooo•uo• APPELLANT Versus: • THE REPUBLIC o o .... ~ , , ,, ~ a ~ • • ..... • RESPONDENT JUDGMENT MACKANJ'li.1 .. The appellan~ and another person who was acquitted were charged with four cognate Penal Code crimes: burglary c/s 394 (1) 1 stealing c/s 265, receiving stolen property c/s 311- (1) and an alternative count of being in possession of property suspected to have been stolen or unlawfully obtained c/s 312 (1). The appellant feo.tured as the first accused; he was acquitted of all charges but receiving stolen property which was the substance o! the third count. The Republic has declined to support the conviction. The evidence was quite unsa.ti.sf:o,ctory, ariy standards, upon which to found a conviction. The story unfolds as follows. One Roman.us Mangwala 1 (PW.l) retired for the night on 24th December, 1998, only to wake up on Christmas day to find that his house had belen burgled and several pieces of his property, incl-qding a clod{ :1-'.'::.vin 6 been stolen. He immediately upon discovery of the.theft set out to look for the burglars. Shortly he et , ,.. the second accused who gave him stoies that implicated the appellant. The appellarit was sought and was arrested on the strength of the second accused's word. It is ~leged by PW.l that upon being arrested the appellant said this:- "Nimeletewa na mtoto wa afande Fufu anayeitwa Felix nimuuzie kwa Shs. 10,000eOO••• saa nimeiuza kwa Tadeo Shs, 30,000.ooaa ( 2

2 On an unspeci:fied day Sgt. John Hapunda (PW.3) stopped ·~ ~ aecused who was riding a bicycle on which he carried cushions. On asking him as to where he had obtained them cu1d where he was taking them the second accused is alleged to have said - ilHizi pillow nazipeleka kwa Stepheno u The second accused was taken b the complainant who said he had sent second accused out to assist in the location OL the stolen property. Then seeond accused said:- 8'Nimeipata mito hii kw~ mtu anayeitwa Maxi' who was alleged to be the appellant. From here PW.3 and the second~~ went to the residence of the appellant who, when asked 1 said:• •'Kweli nimeitoa mito hii kwa ndugu 4uyu lakini bei hajapata • •.. saa nimeiuza. kwa Shs. 3,000.00. 11 There is evidence that the accused were assaulted upon theil' est because PW.l had to intervene to stop further assault on the second·a;c:"6ed. The appellant swore that he was beaten and that the second ac-ciwed Ue(J fi11 implicate him. He also denied complicity in the commission of the crimQit There are strange features in the record of proceedings whi'11 Give r to very strong doubts. First, if 1 as the complainant swore, he reted 'ihe second accused to recover his stolen property, why was he arrested and 01-"gt Is that the kind of treatment deooys receive? The only natural infer~ I can draw is that the complainant is not an honest man. He has manifested a disposition to frame and fix others. It is in this context I hold that the appellant never made admission of guilt before him. i.6 if that was not eno~t the trial court convicted the appellant becauset as he seys• at page one of hi§ very brief judgment - 11 ••• PW.2 and PW.3 briefly have told the court that the first accused behaved very suspecious manner knowing that the goods were stolen. 3

• 3 - Hence the pros. has negated mensrea against the 2nd accused and the charge of receiving c/s 311 (1) has been proved beyor;.d reasonable doubt against the first accused to whom I find guilty and convict him • ~ c • 1 ( Q,uated verbatim)• I can see no such proof, except that the appellant was convicted en strength the i ·_ ",.. .... -, .i of alleged suspecions PW.2 and PW.3 held over the conduct of the appellant. Now however strong the suspecions ay have been, they wen,110t paG,S for probative evidence which is required to prove the guilt of the accused person beyond any reasonable doubt. Mr. Manyanda, learned State .attorney, has also argued that what wos prepared by the learned trial Magistrate was not a judgment at all as ii did not conform to section 312 (1) of the Criminal \ct, 1985,. I have takeil serious note of that submission. The reasons I have given above wiU svfUce to dispose of this appeal. I will consider that issue in a more a.ppf9prta case in which fundamental points of law will be raised. The appeal is allowed. Conviction is quashed and te 5entenae is set Mr. Manyanda, Siu For Republic J.M. Haekanja, 18/10/2000 I certify that ·this is a true copy of the original.