Oswald Mbasha vs Republic (Criminal App No. 11/99) [1999] TZHC 268 (23 August 1999)

.... ··;...,.• .. IN TEE HIGH COURT OF Tii.KZANIA .AT AHUSIIA CRUIINAL APP~ N0.11/99 (Ori5inal M's Court Arusha. Cr.35~/9~) OSWAL1D 1:Ii::J...:'3HA APPELLANr versus \ .· . THE R~:Il?D13LIC ••••••••••••••••••• 8 • • • • • RSSPONDJll.?r JUD Gl'lEirT E,l\i:IG RtJrAJ.{AlfG:.'A; J e In Criminal case 1fo,359 of 1998 of the 1..rusha District Cot, there were six (6) accu;;;cd ,ersons. The first four (4) Accused persdns wore being jointly charged with te offence of .Breaking into a btti.-lding· ·an~ committing an of.fe~~ce t;1erein c/s 296 (1) of the Penal Code. The 5_th and 6th Accused. 1)0:csons who are husband and wife ·respecti vcly 'l"Tel'.o being charged only with the offence of Jeoeiving stolen property c/s 311 (1) of the Penal Jodc. All the. Accused persons did, dew-- the cui:rgos they were facing. ' The prosecv.tion ca'iled 5 wi tnesscG. 1 rhrough these 1:itnesses, the prosecution establisiwd that ori' the ni@t of · ' 18th April, __ . . 1998 a store at the farm of P:n Elias 1-Is]u at Usa River waG broken into and on/generate with ~ ts cable 1f6'rth Tohs.2,800,000/ = were stolen tlierefrem. · This _fsa.ct ·ua.s ·admi tt0d by the 2nd Accused Ilcnt:1on 1-J,,;mba who was a supervisor and guard at the· sa.id farm. Plf2 Cecilia, a house keeper at the said farm also confirmed the brea...1ti.11g. and theft of the 1 Jenerator which she became airare of on 18.1.98 at 9.00hrs. Upon discovering the tb.eft Ngi;;1ba 1-ront to report the matter· at t'sa R:i:ver police post. Subse- t quently, the 1st J,.ccused Benedicto Paulo. was arrested in co:m1eotion with • the theft. :Seth PH1 and P!-14 Deteoti ve Ogt. i-Tilson told the trial court that upon his ar:rest- the 1st 1.ccused confessd te the ,£fence and went farthvr to tell the police tha,t the stolen cable was sold to the ap1Jcllant. The . _., . . "' cautioned statemc!it of .the said 1st Accused :Benedicto Pc:.ulo 1ms -tendered in court as "bih._P,1. • Ptl4 told the trial court that the said Benedict led them _to the house of the appellant but the house was not searched at all. It ,is also· si511ificant. to point out hBrB ,tha:t nothing h1criminating was ,found. at the house of the appellant and his wife. ~ r_r-·- evidence . .:. •. -:•-. - .. of PW.4 is also vaQ1e on whether or not the appellant an,: his 1,rife ware a\home when PJ4 vici ted their home. But &0i-ngiby his reply to a g,uastion_.put to h.i.m oy·the 6th Accused person, it ia eloar that they we.-e not. This is because ila replied th.a.ti .. · · . '·' '- I. ... ..

'I . 1 2 •" ihcn we reached tho 5th and 6th Accused. 1 s hous0 WO found an adult person." . On the streng·llfl. of t:!ie alleged confef:lsion of the 1st Accused., tho appellant and his wife were arrested. and detained in police custody. r0al,esed · Somehow tJ.:.o appellant, was . I.:. , 1)y the polic0 11 e.nt011sibly to look fl'r the stolon generator. His wife how0v0r 7 · was ·not released, . The appellant then cnli □ tod pr13 l'.ffinanga and PT-15 Wilson, tn plTd ui th P1U to have his wife released from police ·.custody. t • r .. .. .. • ~ .. • -.. •

In his sworn evidence the 1st Accused denied the theft nnd claimed that he was tortured before he nas forced,by the police to sic;n Exhl}P.l •. lie told thG trial cot'.I't that he came to know the appellant for i·.the 1st . • I .,. time after being arr.a.ignod in court.. Tllo a_ppsllant also n1oq_u.i vocally denied rece_i ving tho . stolen genera:to.r from the· ist .f.,_ccUB9! or a:ri..,y other person. He was born out on _th.is by his wifl;l• At the end of tlla ·trial 'al-1 of· ,tho ;{ccu:sod persons ;,;rare found.guilty" . . ,)'./) as charged. The a:-opollant 1rras sent.snood to throe years jai1 1 1r:iile his wife was given a conditional·discharg-c for 12 months under s.38 -of tb.e Penal Code., Althouc)1 t10 , appellant and h.i s :wif o were . conllictocl of a· similar offence, no reason :m.:s 6 -i.ven at all by the harnecl trial mac;ir.rtrata why · · thoy were trated d.ifforently as far as tb.,3 sentence !lletod out was concerned. . ~ Tb.is was disoriminc:tion at its peak. _ The appellant ::...:10 appealed against qoth conviction and sentence. The . . . ~ J • ~. . .... only ground of apposl which has merit o grot.1.nd no.4• In thi:::; ground of. appeal,. the! appellant is compainirig that the trial court errod in· convicting , ' . ' him at all because no evidence 1,m.s adduced. to prove . . it . . . tha. t l3t rccei ved the generator .with knowl0cle,"0 ,that/had been stolen. . - .,:, ' Fora conviction under S.311 (1)· of the Penal Code to stend the prosecution must provo beyond reasonable doubts that 9 the Accuncd; -(a) rccoiv0d .or retained the property ad . ~ c;- ( b1 on receiving; retaining tho same ho knew or 11aCl reason to believe thJ same to have boon stolen. . I • •. . ' . From thb evidence. on record· even 'asswning that the appellant recci ved or reta.i:ned the stolon CGne;~tor ( which ~;~s- ot rocoveied at all) tho prosecution tcnd.orod not oven ·an iOta of 1 6-ndonco 't' :orovo .Alf@'.'od.ient • • • .... J. • ~ ...,. (b) above of tho offence. It was tho1oforc 1r.rong to convict the " . appellant and bis wife.. Fui'thermorc, the evidence of receiving or . . . "&larillgly · , , .. retaining 1s : / , scanty. It was contained fn the repudiated confossiin of the 1st .Accu.sc<l. The latter accUBed cioniod in court !mouing the appellant prior to mooting in court. llis alleged oonfession nas therefore.. . , too weak to suatain a conviction for receiving stolen property. Suro .. • . , I t· I .

s- 3 prisingly none of tho fivo prosecution witnesses mentioned. np?cifically the appellant wife in . . evidence incriminating her. I wonclor why she was convicted at all. It is for those roasons that the Learned State A ttornoy did not wish to 01.'g_)port this conviction of tho appellant. For the forotoing reasons, this appeal is aJlc.-r~.:rl in its cntiretyo The conviction of the appellant ii:, il.o .. coby quashed. a11d set aoido and the three year jail sontcnco sot asid00 Tho a:ppollant is to 0e released forthwith unless ho :i..s otherwise detained for la.w.f.ul cause J:n exorcise ' , of the rovisional vouors conferred by law on this court., I rov:i.t<:, ·'.;j:,,J conviction of tho 6t:1 Accused Hora l1basha as there is no evidence to sustain it. Iler cor:rr.iction is hereby quach.od and sot aside and. so is the sentence imporc:oc1 on her. Dolivorod in court in the prosoncc of lr1r. r,iakanges Gou:1s01 for the appella.nt and r..rs. lijimo 9 Loarned Princips.l Gtate Jttornoy for the RepubJ_ic, this d~~r of August_ 9 1999• ' ' .. , t , . JUDGE 23/8/1999

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