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Judgment

IN THE RESIDENT MAGISTRATE COURT WITH EXTENDED JURISDICTION (BUKOBA REGISTRY) (Hc) CRIMINAL APPEAL NO 0 2/2000 LUNGINOANP0 0 0 0 3 0 0 0 0 0 0 0 0 0 6 0 0 0 0 0 0 0 0 0 0 6 0 0 • 0 0 ................ APPELLANT

'Ips o REPUBLIC... 640 3 0 000 0 C 0 0 0 ... 00 0 0 00 0 000 000 0 00 0 000 , cc o a o a cc a RESPONDENT J U DG M E N T. BEFORE: DOEO G. SAFARI- SRC EXTENDED_JURISDICTION: These three appeals which I have consolidated, are filed by the Appellants LONGINO ANGERO, NCVATUS STEPHANO and MIJGIZI TRASL&S, whom I shall refer to as the 1st, 2nd, and 3rd Appellants respectively 0 All the abovenamed Appellants together with other nine accused persons, were charged in the District Court of Muleba with the offence of stord breaking and stealinG c/s 296 (1) and 265 both of the Penal Code Cap 0 16, and at the end of the trial, only the 2nd Appellant was convicted and sentenced to four years imprisonment. As to the alternative count to that of store breaking and stealing, which is of receiving stolen property c/s 311 (1) of the Penal code, the 1st and 3rd Appellants who were charged together with other five accused persons, were found guilty of the above charge, and each of them was sentenced to four years imprisonment as well. The prosecution case was to the effect that mn 1st February, 1999 at unknown time, at Rubya Seminary within the District of Muieba in Kagera Region, the Appellants together with nine others, broke and entered into the store of the said Seminary, and stole therefrom one hundred bags of maize worth Tshs0 150,0001=, the property of the afore- said Seminary. With regard to the alternative count, it was alleged by the prosecution side that the 1st and 3rd Appellants together with other five accused persons, on the same date, time, and place, received and retained maize which they knew •r have reasons to believe te have been stolen. All the Appellants were, infact, aggrieved by the whole judgment
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2 - of the trial court, and they all, opted to appeal to this court by preferring their respective .memorancP of appeal having six grounds of appeal each. In their memoranda: of appeal, all the Appellants are lamenting inter ella that the trial magistrate had completely failed to evaluate the evidence thoroughly well in order to establish th• fact whether or not there was store breaking and stealing before other merits are considered 0 It is further apparent from the said Memoranda of Appeal,that while the 1st Appellant opted to be absent during the hearing of the appeal, the 2nd and 3rd Appellants were duly represented by their learned counsel Mr. Rweyemamu, and on the other hand, the Respondent was represented by Mr. Feleshi the learned State Attorney. In their respective submissions they made before this court, bath Mr 0 Rweyemamu and Mr 0 Feleshi declined to support the whole judgment of the trial court 0 Before I could dwell further on the instant appeal, I find it worthwhile to adumbrate the salient facts of the case which the Appellants are now appealing against PW I FR. JASSON KAIZA who was the teacher cum accountant at the abovementioned Seminary, was also responsible for food store which was before the closure of the school on 28th November 1998, being manned by a student called. lEWIS MUGANYIZI (P 3)0 . On the eve of closing the school, PW 3 handed the keys to the said store to PW I whom he accordingly notified that the store in question was left with 32 kgs of sugar., not more than 20 kgs of salt, and 120 bags of maize Despite such notifi- cai . PW I did not bother to cheek physically the stock which by then had remained in the store, instead he allowed PW 3 to proceed with his annual leave. On 28th December 1998, the Form IV Students whose National Examinatin was previously cancelled and later allowed to reseat it by the Natfonal Education Council, returned to the. School .,. in order to prepare themselves for the examination, As PW 3 was not among the students who were to reeeat the said examination, PU I appointed one Patience Mutalemwa who was also preparing himself for the examination
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3 - to manage the said food store 0 As before, apart from being handed keys to that store, there was no handing over of st6k in the material store which was made between PW I and the said Patience Mutalemwa, Likewise, when the school had reopened on 20th January 1999, all the students returned back and the aforesaid store was handed back to PI 3 by Patience Mutalemwa and the latter continued to issue items therefrom till on 1st February 1999 when he reported shortage of goods in that • store to PW I. Following such report, PW I accordingly i.nformed the • police of matter and as a result, the Appellants together with nine others were arrested for being purportedly found in possession of maize which PW I alleged to have been stolen from the store in issue, PW I particularly asserted that. he was able to so identify the said maize • because the bags containing maize were, dirty as' they had been in the • store for a long period of time and that some of the mi.ize grainc were '. borecf,by grain borei, 11e further testified that when the house of the 2nd Appellant was searched, although maize was not found in his house, a padlock which resembled the ones on doors of the aforesaid store, without pinpointing the specific marks which differentiate it from the other padlocks, was found in his house0 At this point at hand, it is pretty clear from the record of the trial court that there is no prosecution witness who. hs seen any of the Appellants breaking the food store of the said Seminary on the fateful date. Neither did any prosecution witness spot any Appellant at the scene of the alleged crime. All the Appellants according to the record, were arrested in connectior of the maize which PW Iclaimed to have been s'tolen from the said store,. Albeit PW Iliad so contended, he did not, however, specify any marks or any identify which differentiates the maize which was found in possession of the Appellants from any other • • maize, It is insufficient, for him to just claim that the maize which its was stolen from the Seminary, was in dirty bags .and that' I' grains were • . bored by grain bors,.. PW... I must bear in mind that it is possible for any grains of maize tQ'he stored in dirty bags and to be damaged by

.4 - insects as well. In order to build up his case, beyond any reasonable doubt, the PW I was obliged to have dis.cloed special identity as to the maize he was alleging to have been stolen from the Seminaryt a food store. Furthernre, the manner in which the said store was being manned by then, leaves a lot to be desired. it is evident that the said store was formerly being controlled by PW 3 and when the school was about to close thats on 28th November 1998, he handed it to'PW I without stock therein being verified by the latter. Instead, he was verbally notified by PW 3 of what had remained in the stores No sooner had PW 3. departed therefrom than PW I proceeded to supervise the store till on 28th December 1998 when he handed it to Patience Nutalemwa who in turn continued to issue items without the same being properly handed to him. Again, the said Patience Mutalemwa handed back the same to PJ 3 on 21st January 1998 when th school had reopened Q Likewise, no checking of items in that store was conducted and PW 3 went on suporvising the store until 1st February 1999'wh ,_x'i he reported the shortage or suspicion of theft in that store to PW1. Now, since the proper handing over of the said store was not made from the beginning to the end as clearly shown hereinabove, it ia difficult for this court to 'point oit precisely in whose hands the said store was when the said breaking and stealing, if really done, was committed. The prosecution side. must : Iow that it is not upon the court to speculate but it must bear in mind that the burden of proving the case beyond any reasonable doubt is on its shoulders. Moreover, there is evidence by PIJ I that during the time when the house of the 2nd A3pellant was searched, a. padlock which resembled, the ones on the door to the store of the said Seminary, was found therein. Despite such contention there was no prior report made by PU 3 to PU I, that the padlocks on the said doors were broken and/or lost. The report which was so made was only the one relating to the shortage of

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5• - stock in the material store. Apafi from the foregoing, PW I did not particularise the marks which clearly indicate that the padlock which was found in that house, cannt be found anywhere else other than at Rubya Seminary 0 Even though, the said padlock was clearly identified by PW I in fact, his evidence is Very much contradicted by the testimony of PW 4 the Village Executive Officer of Ijumbi village who als* participated in the said search. According to PW 4, during the search nothing substantial was found in the house of the 2nd Appellant. Following, the above discrepancy in the prosecution evidence, without beating around the bUSh,IdCCijfle to accept the version by the prosecution side that the abovementioned padlock was really found in the 2nd Appellant's house. Without prejudice to the foregoing, I concur with Mr. Rweyemarnu the Lea'ned Counsel for the last two Appellants, that the testimony of PIJ 5 who was the daughter of 8th accused who was acquitted under section 230 of the Criminal Procedure Act No, 9/85 on a verdict of no case to answer, is that of an accomplice. This witness, in her testimony, implicated the 2nd Appellant as the person who had taken 18 bags of maize at night to her mothers homeplac.and her evidence further clearly denotes that she had prior knowledge that the said maize would be brought thereto by the 2nd Appellan:t who was previously permitted to keep the said maize in that house. She further contended she had no power to disallow what her mother.h4 allowed although the material maize was ferried thereto during the night. However, the 2nd Appellant
denied to have transported the maize in question to PW 5's mothers house, and on the other hand, the 8th, accused (PW 5s mother) from whose hou.se the said maize was retrieved, was not put on trial. If put on trial, the trial court would. have an oçportunity to hear her defence on the subject matter andy accordingly consider it in its judgment. Since the evidence of iacconiplice is of the weakest kind, it should be taken with great care. In fact, taking from -the cradle that PW 5 is the daughter..of the 8th accused who was in the dock
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6 - when she was adducing her evidence, she has all the reasons to eecu1pate her mother from liability. He evidence was therefore required to be corroborated something which the trial magistrate has overlooked. At this point at hand, I now revert back to the 3rd Appellant. This Appellant was convicted becaue 31 bags of maize were found in possession of his father who was the L+th accused in the trial court. In his defence, the 3rd Appellant maintained that maize was his property
and that he had lawfully purchased it and he accordingly summoned DW 1 2 9 DW13 and D4 14 to substantiate as to how he had obtained those 31 bags of maize from various market places and how he had transported them to his father's homeplace. However, the trial magistrate did not consider at all the evidence of the 3rd Appellant's witnesses in that regard. What this trial magistrate has done in this respect, leaves a lot to be desired. It is apparent from the lower court record that the 2nd, 9th and 11th accused persons who were found in possession of the maize alleged to have been stolen from the said Seminary, were acquitted for being bona fide purchasers of the same, yet he convicted the Appellants who had also claimed to have been the bona fide purchasers. Ln fact the criteria he has used to do that is not irnown as far as evidence on record is concerned. Now deducing from the foregoing, there is no doubt that all the Appellants were unjustifiably convicted of the aforecited charges. In the final event, the appeal is allowed and conviction is quashed, and sentences are set-aside. All the Appellants are to be set at liberty immediately unless otherwise lawfully held, D.B000 SAFARI AT BTJKOBA DISTRICT REGISTRAR 30/5/2000. SENIOR RESIDENT MAGISTPATi EXTSNDED_JURISDICTION.

Judgment

'Ips o REPUBLIC... 640 3 0 000 0 C 0 0 0 ... 00 0 0 00 0 000 000 0 00 0 000 , cc o a o a cc a RESPONDENT J U DG M E N T. BEFORE: DOEO G. SAFARI- SRC EXTENDED_JURISDICTION: These three appeals which I have consolidated, are filed by the Appellants LONGINO ANGERO, NCVATUS STEPHANO and MIJGIZI TRASL&S, whom I shall refer to as the 1st, 2nd, and 3rd Appellants respectively 0 All the abovenamed Appellants together with other nine accused persons, were charged in the District Court of Muleba with the offence of stord breaking and stealinG c/s 296 (1) and 265 both of the Penal Code Cap 0 16, and at the end of the trial, only the 2nd Appellant was convicted and sentenced to four years imprisonment. As to the alternative count to that of store breaking and stealing, which is of receiving stolen property c/s 311 (1) of the Penal code, the 1st and 3rd Appellants who were charged together with other five accused persons, were found guilty of the above charge, and each of them was sentenced to four years imprisonment as well. The prosecution case was to the effect that mn 1st February, 1999 at unknown time, at Rubya Seminary within the District of Muieba in Kagera Region, the Appellants together with nine others, broke and entered into the store of the said Seminary, and stole therefrom one hundred bags of maize worth Tshs0 150,0001=, the property of the afore- said Seminary. With regard to the alternative count, it was alleged by the prosecution side that the 1st and 3rd Appellants together with other five accused persons, on the same date, time, and place, received and retained maize which they knew •r have reasons to believe te have been stolen. All the Appellants were, infact, aggrieved by the whole judgment
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2 - of the trial court, and they all, opted to appeal to this court by preferring their respective .memorancP of appeal having six grounds of appeal each. In their memoranda: of appeal, all the Appellants are lamenting inter ella that the trial magistrate had completely failed to evaluate the evidence thoroughly well in order to establish th• fact whether or not there was store breaking and stealing before other merits are considered 0 It is further apparent from the said Memoranda of Appeal,that while the 1st Appellant opted to be absent during the hearing of the appeal, the 2nd and 3rd Appellants were duly represented by their learned counsel Mr. Rweyemamu, and on the other hand, the Respondent was represented by Mr. Feleshi the learned State Attorney. In their respective submissions they made before this court, bath Mr 0 Rweyemamu and Mr 0 Feleshi declined to support the whole judgment of the trial court 0 Before I could dwell further on the instant appeal, I find it worthwhile to adumbrate the salient facts of the case which the Appellants are now appealing against PW I FR. JASSON KAIZA who was the teacher cum accountant at the abovementioned Seminary, was also responsible for food store which was before the closure of the school on 28th November 1998, being manned by a student called. lEWIS MUGANYIZI (P 3)0 . On the eve of closing the school, PW 3 handed the keys to the said store to PW I whom he accordingly notified that the store in question was left with 32 kgs of sugar., not more than 20 kgs of salt, and 120 bags of maize Despite such notifi- cai . PW I did not bother to cheek physically the stock which by then had remained in the store, instead he allowed PW 3 to proceed with his annual leave. On 28th December 1998, the Form IV Students whose National Examinatin was previously cancelled and later allowed to reseat it by the Natfonal Education Council, returned to the. School .,. in order to prepare themselves for the examination, As PW 3 was not among the students who were to reeeat the said examination, PU I appointed one Patience Mutalemwa who was also preparing himself for the examination
3
3 - to manage the said food store 0 As before, apart from being handed keys to that store, there was no handing over of st6k in the material store which was made between PW I and the said Patience Mutalemwa, Likewise, when the school had reopened on 20th January 1999, all the students returned back and the aforesaid store was handed back to PI 3 by Patience Mutalemwa and the latter continued to issue items therefrom till on 1st February 1999 when he reported shortage of goods in that • store to PW I. Following such report, PW I accordingly i.nformed the • police of matter and as a result, the Appellants together with nine others were arrested for being purportedly found in possession of maize which PW I alleged to have been stolen from the store in issue, PW I particularly asserted that. he was able to so identify the said maize • because the bags containing maize were, dirty as' they had been in the • store for a long period of time and that some of the mi.ize grainc were '. borecf,by grain borei, 11e further testified that when the house of the 2nd Appellant was searched, although maize was not found in his house, a padlock which resembled the ones on doors of the aforesaid store, without pinpointing the specific marks which differentiate it from the other padlocks, was found in his house0 At this point at hand, it is pretty clear from the record of the trial court that there is no prosecution witness who. hs seen any of the Appellants breaking the food store of the said Seminary on the fateful date. Neither did any prosecution witness spot any Appellant at the scene of the alleged crime. All the Appellants according to the record, were arrested in connectior of the maize which PW Iclaimed to have been s'tolen from the said store,. Albeit PW Iliad so contended, he did not, however, specify any marks or any identify which differentiates the maize which was found in possession of the Appellants from any other • • maize, It is insufficient, for him to just claim that the maize which its was stolen from the Seminary, was in dirty bags .and that' I' grains were • . bored by grain bors,.. PW... I must bear in mind that it is possible for any grains of maize tQ'he stored in dirty bags and to be damaged by

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5• - stock in the material store. Apafi from the foregoing, PW I did not particularise the marks which clearly indicate that the padlock which was found in that house, cannt be found anywhere else other than at Rubya Seminary 0 Even though, the said padlock was clearly identified by PW I in fact, his evidence is Very much contradicted by the testimony of PW 4 the Village Executive Officer of Ijumbi village who als* participated in the said search. According to PW 4, during the search nothing substantial was found in the house of the 2nd Appellant. Following, the above discrepancy in the prosecution evidence, without beating around the bUSh,IdCCijfle to accept the version by the prosecution side that the abovementioned padlock was really found in the 2nd Appellant's house. Without prejudice to the foregoing, I concur with Mr. Rweyemarnu the Lea'ned Counsel for the last two Appellants, that the testimony of PIJ 5 who was the daughter of 8th accused who was acquitted under section 230 of the Criminal Procedure Act No, 9/85 on a verdict of no case to answer, is that of an accomplice. This witness, in her testimony, implicated the 2nd Appellant as the person who had taken 18 bags of maize at night to her mothers homeplac.and her evidence further clearly denotes that she had prior knowledge that the said maize would be brought thereto by the 2nd Appellan:t who was previously permitted to keep the said maize in that house. She further contended she had no power to disallow what her mother.h4 allowed although the material maize was ferried thereto during the night. However, the 2nd Appellant
denied to have transported the maize in question to PW 5's mothers house, and on the other hand, the 8th, accused (PW 5s mother) from whose hou.se the said maize was retrieved, was not put on trial. If put on trial, the trial court would. have an oçportunity to hear her defence on the subject matter andy accordingly consider it in its judgment. Since the evidence of iacconiplice is of the weakest kind, it should be taken with great care. In fact, taking from -the cradle that PW 5 is the daughter..of the 8th accused who was in the dock
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6 - when she was adducing her evidence, she has all the reasons to eecu1pate her mother from liability. He evidence was therefore required to be corroborated something which the trial magistrate has overlooked. At this point at hand, I now revert back to the 3rd Appellant. This Appellant was convicted becaue 31 bags of maize were found in possession of his father who was the L+th accused in the trial court. In his defence, the 3rd Appellant maintained that maize was his property
and that he had lawfully purchased it and he accordingly summoned DW 1 2 9 DW13 and D4 14 to substantiate as to how he had obtained those 31 bags of maize from various market places and how he had transported them to his father's homeplace. However, the trial magistrate did not consider at all the evidence of the 3rd Appellant's witnesses in that regard. What this trial magistrate has done in this respect, leaves a lot to be desired. It is apparent from the lower court record that the 2nd, 9th and 11th accused persons who were found in possession of the maize alleged to have been stolen from the said Seminary, were acquitted for being bona fide purchasers of the same, yet he convicted the Appellants who had also claimed to have been the bona fide purchasers. Ln fact the criteria he has used to do that is not irnown as far as evidence on record is concerned. Now deducing from the foregoing, there is no doubt that all the Appellants were unjustifiably convicted of the aforecited charges. In the final event, the appeal is allowed and conviction is quashed, and sentences are set-aside. All the Appellants are to be set at liberty immediately unless otherwise lawfully held, D.B000 SAFARI AT BTJKOBA DISTRICT REGISTRAR 30/5/2000. SENIOR RESIDENT MAGISTPATi EXTSNDED_JURISDICTION.

Longino Angero vs Republic (HC Criminal Appeal No. 2 of 2000) [2000] TZHC 261 (30 May 2000)

Judgment

Discussion

Longino Angero vs Republic (HC Criminal Appeal No. 2 of 2000) [2000] TZHC 261 (30 May 2000)

Judgment

Discussion