Salum Mashoto & Another vs United Republic (High Court Criminal Appeal No. 9 of 2000) [2000] TZHC 365 (27 September 2000)

• Ci s IN THE HIGH COURT OF TANZANIA - AT MWANZA APPELLATE JURISDICTION • HIGH COURT CPININAL APPEAL NO9. OF 2000 OIThAL CRIMINAl CASE NO 184 OF 1999 OF THE DISTRICT COURT OF MAZA DISTRICT AT MWANZA BEFORE B B. I4AGANGA Esq DITRICT I IAGISTRATE SALITh MASHOTO & ANOTHER APPULLANT (Orig, Accu'ed) Versus THE UNITED REPUBLIC 0 0 0,0 a• RESPONDENT (Oig. rosutor) JUDGMENT... • NCHALL., J . The two appellants namely Salum s/a Mashoto and John s/o Kisaro (hereinafter referred to as 1st and 2nd appellants respectively) have each filed a separate appeal to this court againt the decision of the trial District Court at Mwanza in its original Crinlinal case No, 184/99 in which they were jointly charged and. convicted with the offence of tor breaking and..staiing c/s 296(1) of the Penal Code. They were each SentencedYto, ten (10) rears imprisonment 0 They were further ordered to pay an unspecified amount of compensation to P one Fu s/a Abdallah id the person from hom it is alleged the apiellants stol t'o boies full of bicycle spreparts worth &-is. 2,O29, 000/= totally. The 1stapellant filed appeal No.9/2000 wriile 2nd appellant's appeal is No 13/2000 which I heard together unrier. conoolidatlon, The appellants iare not roprosented at the hearing of their arpeals, but they physically ipared before me on the day of hearing of thes........ appeals and each one made a short statement. ,tQ claify certain facts in. their grounds of .appàl. In principal the appellants adopted their grounds of appeal. , • • , The Republic Resoonddnt was represented. byMr, Outa, learned State Attorney who did not support the entire decision of the trial court, that is the conviction, sentence and the order of •compensal'ibn 3 . 40

• 2 - The main thrust in appeal as is to be found in the appellants' memoranda of appeals, is that they were not physically sean and identified at the scene of crime and at the time when the bicycle spae psrt's the subject matter of the charge 9 are alleged to have been solen from P.W.2' store or godown after the same is e1leed to have been broken into1 The appeflants fu±'ther argued that the'e was no evidence produced by the pro.s.epit.iop.toprove that P 0 W1 9 s godowa or tore was broken into. The 1st appellant who was found in possession of bicycle spareparts which he claimed to belong to him, hd'i'düêd'à receipt (Exh Dl) to support that he had purchased the said spareparts. On the contrary th complainant (p,W,1) did not give evidéhcë tO pràperly identify the spàrepa- rts which he alleged Were stolen. from his :'tore'ahd" which were found in 1st appellants possession . . . As already ètated, Mr. Outa, learned State 'Attorae'y did not supo±t': the conviction, sentences and the Order' of compensation which the trial court imposed on the appellants 'for'the following reasons 0 First' in as much as

P,W01 failed t'o identify the biOycle 'spare parth (Exh P1) as being the very ones which w&r'e' stolen' from his store, •then the''o'ffOnce'of theft in relation to thoe articles could not in law be said to havC'beéii proved beyond reasonable doubt. This is patticular1;' so" when the i't appellant in whose possesion those' spare parts Were found produced a receipt (Exh Dl) to raise a reasonable doubt that he 'had stol those sareparts, ' On the basis df that receipt reasonable doubt arises 'as to whethe±' or not the 1st appellant had stolen those spare parts. It was wrong for the tinl magistrate to surmise that the said receipt was a concoction or false document simply because the 1st Opellant did not' own a bicycle pare parts-shop. That was a gross misdirection on points of law 0 Mr.' Outa further submitted, that the prö'eOitiori' did not produce an y evidence atthO trial to prove beyond' reasonable doubt' that"P,W1's * e../3. F

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• 3 - store had been broken into Even the learned trial District..Magistrate made a definite finding to this effect at page 10 of his typewritten judgment 6 Now the offence of storebreaking under section 296(1) Penal code is a composite offence. In order to prove the commision of this offence, both the breaking of the store and the stealing therefrom must be simuianeous1y'or coiijunctively proved roof of only one of those two acts is not sufficient to prove the offence of store breaking and stea- lingundr section 296(1)'Penl Code, Cap.16. So, obviously this offence wasno.'proied because the act of storebreaking was not proved This find{xig isenoug1i to settle the decision of this appeal It was a1lged that the ppellants upon arrest made caution state- ments to the police in which they admitted to have committed this offence. However, af the trial t}eappeIl retracted and repudiated their statements, alleging that they were severely beaten by the police and were orded ±o admit to have committed the offence. No trial within a trial was conducted by the trial magistrate in order to test the admisbiiity. that is, the voluntariness of the appellants in the making of the alleged admissions. Moreover, the said statefnents iee never tendered in evidence, so the amearmere hearsay hence not admissible, . It is proved that the 2nd appellant \was arrested, searched but was

not found in possession of any of the spareparts alleged to have been stolen from P,W,1s godown. And all along the 1st appellant claimedthat the two boxes full of blcycl2 spre parts belonged to him as supported by the cash receipt (xh Dl), It is therefore inexplicable why the trial court dided to convict the 2nd appellant with this offence in view of this clear evidence which supports his noninvolvement in the commission of this offnce, . . . . ... . . Mr, Outa, learned State Attorney submitted that the charg was itot proved at all on each of these appellants, so he prayed that the convi- ction be quashed, the sentence and order of compensation be set aside0, Also that the two boxes of bicycle spareparts (Exh P1) be refunded to ...... the 1st appellant by P,T,1 to whom the sarne were handed over by the trial court, •°

• 1 - I am quite satisfied on the available evidence, that the proecution had utterly failed to prove the chdrge..on these appellants beyond reso- nable doubt. I uphold Mr 0 Outastthmissiçn,s. I find these apiéal• to be meritorious and I thus allow them in their ertirety. I quztsh the conviction and set aside the senterces and order of compenation which the trial subordinate court had imposed and passed on the appellants. I also order that the bicycle sparcparts in the two boxes (Exh P1) whtch were given back to Mr. Fuad s/o Abdallah Said (P.W 1), be refundd to the 1st appellant one Salum s/o Maèhotb who was the 3rd accused at thetrial...-:. In the failure by Fuad s/o Abdallah Said (P W 1) to refund the said bicyclespare parts to Salum s/o M.1shoto (it appellant) distress isue IW on his propertios to recover those properties or their market value at the time of execution of the ditess warrant.. Order accordingly. As the two appellants were relOae& on bail pending appeal and are still on that bail, they are ordered to continue with their liberty, and should not be arrested or detained in connection with this case, The two appeals which were consolidated and hoard together are thus allowed. Appeals allowed. ( M. IJ LLA JTJDGE 2 1+/9/2000 27/9/2000 Corain M.D. Nchalla, J. Appellants - present in person Respondent/epublic - Mr. Kebor1d, SSA Court Judgment delivered in court in the presence of the parties, at Mwanza, this the 27th day of, Septeober, 2000. Right of appeal explained. AT MWANZ M ,D, NCHL LLA .. .. . .: 27/9/2006 . .