Katembo Mrisho vs Republic (Criminal Appeal No. 73 of 1997) [1999] TZHC 115 (15 February 1999)

KALEGEYA. ,T. IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CRIMIN.AL APPEAL NO. 73 OF 1_q97 (Orig·in;:iting from TT.AT.A n·ii:;tr·ict r:ourt. Crirn.ina.l Case No. 1.61\95) KATEMBO MRISHO .............. . . . . . . . . . . . . APPELLANT VERSUS THE REPUBLIC ....... . . ......... RESPONDENT J U D G E M E N T The Appell,ant, Katemho Mrisho Mohamed was the only accused to earn a conv{ ct ion out of -12 others jointly charged in count two with Godowraking and stealing c\s 2q6 (1) and 265 of the Penal Code. He appeared as 1.st accused. Count one concerned 4 - 12th accuseds and this alleged conspiracy to commit an offence c\s 384 of the Penal Code. The third count,. which is in the alternative, negl.ect to prevent felony c\s 383 of the penal code, stood for 4th - 6th ;:iccused. The accuseds in their respective numbers were Kat.embo Mri.sho s\o Mohr1med, Hemedi s\o Hassan Hussein, Rajabu s\o Juma Hamisi, Selemr1ni s\o Omari Ally, Andrew s\o Mtali Chimogo, Rajabu s\o Changama Chadimha, Pet.er s\o King'ombe Masudi,. Ely s\o Hassani, Emmanuel s\o William, Njeli s\o Nesphory Parashi, Hamisi s\o Salum Janga]a Mnomola and Athanas s\o Alex Kwayu. The 2nd count alleged that on 16\3\95 they had, jointly and together, with 2 other people not before the court, broken into the Jnternational Islamic Relief Organisation godown at Tabata and stole various articles including 40 mattresses, 20 hal.es of mitumh;:i clothes, 94 roll.s of Textile mat.er ia 1, Ra l es of mi t.11mhn shoAs, on A r.ompnssor mr1ch ine, 49 pieces of carpet al.l. valued at shs. 2,42,000/=. In the 1st. count it wa~ alleged that the 4th - 1.2th accused had conspired to break and effect theft of those items while in the al.ternative third count it was stated that the 4 - 6 r.1.ccuseds being Wi:itchmen 1.

of Nahad Transport Company failed to prevent commission of the offence of stealing. All others were acquitted while Appellant {as first accused) was con~icted and sentenced to 5 years imprisonment on 1st count. ;:ind 1 year on 2nd r.ount. Tn this appeal he is assailing these der.isjons. The Appel l;=rnt challenges t.he finding of the District Court. on three maingrounds - that the trial Magistrate erred in relying on cautioned statement. whose authenticity wAs not tested by holding a trial within trial; that such confessions have to be corroborated, and that. the evidence of accomplir.es (fellow accuseds) should have been corroborated. He concluded that had the trial court considered all this and analysed the evidence it should have acquitted him. The learned State Attorney supported the conviction arguing that the offence was duly proved.: that reliance was not put on .accomplice evidence alone but also on a ca11tioned statement whose tendering was not challenged by the Appellant. With greatest respect to the learned State Attorney this appeal must succeed. First; there is an incurable procedural error committed by the trial court. 'l'he accuseds never. pler1ded to the charge as legally required. 'T'he chnrge on whir.h the accuse<ls were brought to court (dated ?.0\3\Q:1) was substituted with another charge dated 18\7\95. While the fbrmer charge contai.ned jt1st a single count of go<lown breaking ahd stealing the latter contained 3 counts as already explainecL On 18\7(}5 whAn the s11bstit11tion was made, the trial court simply rer.oroe<l an omnib11s plAa of not guilty by all accusseds as if they werA heing fr1ce<l with a single count. This error was again committe<l on 18\10\95 when hearing commenced. The court remained harbouring 11nder this mistake till end when it compose<l the judgement AS exemplified by the 2

following excerpt from the very judgement, "The accuseds who are(?) appeared before this court are twelve in number and both of them was(?) charged wi.th two offences of Godown breaking c\d 2qfi (1) and stealing 265 of thFJ penal code". However, there is only one offenc~ in the above statement and not two - godown breaking and stealing c\s 296 (1) and 265 of the penal code and it is not true that all the accuseds had been charged with two offences (the substituted charge speaks aloud on this}. The trial court seems to appreciate the existence of the substituted charge in the last part of its judgement for then it makes reference to conspiracy, and counts one and two while sentencing. Secondly, even j.f the above error did not exist, there is no evidence to support a criminal charge. The trial court's judgement is on 9 typed pages of A - 4 size papers. Out of all this the only ;=rnalysis ,rnd finding is contained 1.n the following. ( thP. rest bfd ng the summ;:iry of the evidence, mitigation and sentence) - "According to the tP-stimony tendered before the court the evidence given against the accuseds the same was proved against the first nccused as he is the one who planed(!) with other accuseds who is at large to commitjthe offences and made away with the larger amount of properties which owned with International Islamic Relief Organisation. The prosecution side, the evidence tendered before the court pointed to the first accused as he is the one who informed the rest accused that there is a job to unload the luggage at Tahata where the lorr which was coming from Iringa had developed a mechanical faults,. the first accused with othfff accuseds who is not in the court left the accused at Tabata relini where the number of accused persons was arrested by the police. 3

The accuseds on they are (!)testimony except accused No. 4 both of them mentioned the first accused As the one who informed them that there is a job to do at Tabata Relini. To go further the caution statement which the accused gave before the police (PW2) the first Accused with others accused who was not (!)in the court conspired to commit the offences which is the subject matter before the court. The court through the evidence concluded that the first accused is the one who committed two offences and in this respect the rest accused except the first accused are acquitted and set free. The first accused the court found guilty in all the offences as charged". I have quoted the above.to show the reasoning leading to the conviction. Apart from the inelegancy of the l;:ingunge the above quoted lacks analysis and is indeed contradictory of what the evidence portlays. The prosecution case rested on very brief evidence of 4 witnesses. PW1 a police officer simply deposed to have visited the scene of crjme· - the godown, where he found all the accuseds except accused 1 and 12 And a store keeper who was enlisting the stolen property. He interrogated the accuseds who told him that "first accused was the one who hired them". He got information that some stolen property had been recovered at Mbezj, and he found them at Oysterbay police where they were identified. The witness simply added hAars;:iy account on how the recovered articles had been found in nnA house At Mbe7.i whnsA wAtchman escaped. He disclosed that the recovered articles included la compressor, 3 carpets, 1.2 Baibui Rolls, one box of shoes and 4

clothes. This witness ends his testimony without linking in anyway the accuseds with the t.heft let alone establishing how they came to be at the godown. PW2, the storekeeper f Mahad Co. Ltd godown where the stolen property was bej_ng stored briefly deposed to have received information regarding breakage into their godown and theft; to have compiled a report. He went further to produce the hill. of lading to establish that the goods helonged to the International Islamic relief Organisation. Neither does this witness link accuseds wi.th hrei=ikage or t.heft, for he even goes further and states, "I don't know the accused persons". PW.3, another police officer, deposed on a piece of evidence which sets in more confussion than clarity. His evidence is so brief that it deserves to be reproduced: "I reside at Pugu Kajiungeni. Tam working with Buguruni Police Station. On 16\3\95 we were directed to go to Tabata as theft occured there. We went to Tabata Relini in the godown of Mohad, the watchman ooened the door, thev showed two oeoole third accused was amona them. We arrested them. That is all". ( emphasis mine) . Lastly, on the prosecution side we have PW4 who recorded the Appellant (1st acc11sed) cautioned statement. He deposed to have come across the Appellant. at the CID offices through the hands of Dsgt. Amon who required hi to take down his cautioned statement; that 1st accused voluntari1y agreed to this hence Exh .. P2. In that statement the 1st accused (now Appellant) stated that though a watchman at Ahmad Salum shop, Kariakoo, (Gunzo Enterprises) having been approached by one Rashidi who asked him to assist him unload and load some goods from a defective vehicle to another he decided to have some side earnings and took tip the offer. He went 5

• .. . ' further to state that they gatherea pther acc11seds who were lying idle ;:iround Kari.,koo an<'l hor1rde<'l r1 m.in-bus.: t.h;:it R;:ishid had told them that the c'l e fer. t i v e v eh i c: 1 e w r1 s a long Ma n c'l e 1 ;::i Rao d hut t .. h ;:i t they led to a godown instead where they found it open, and a lorry parked and were instructed to load the goods from the godown into the lorry whi.ch they did and got paid. He stated further that there was some misunderstandings with the watchmen of that godown over payments but. did not clarify. That was the end of the prosecution case. In defence, the 1st accused deposed that he participated in off loading goods from Iringa on part ti.me basis as he is a watchman with Gunza Enterprises and that he was later arrested and led to Bugur.uni Police Stat.ion. Accuseds 4 - 6 deposec'I that they are the watchmen of the godown which was broken into and that the rest of the accuseds descended upon them, broke into the godown ana stole. The rest of the accuseds deposed that the 1st accused had implored them to join him on a casual goods' off loading and loading exercise (for pay) as a vehicle had broken down at Mandela road; that they were however driven to Tabata and told to wait and that while waiting the police came and arrested them. I have been forced to summarise the evidence tendered to show that the trial court's findings are not supported at all. Apart from the caution statement. we close the prosecution case without l.inking the Appellant. t.o t.hP. offP.nce charge<l. T must observe that. the matter was very poorly investigatec'l as the clues at hanc'l coul<l hrivR proour.e<l more t.h;:rn wh;:it. wr1s discloseo. 'T'he accuseds' stories may ring r1 hig suspicion in one's ears but. this is not enough t.o founo a conviction in A criminal charge. In any 6

.. ·1 case it is trite Jaw that conviction is not found on the weakness of the defence but rather on the strength of the prosec11tion case. It would seem that the trj_al court was greatly influenced by the caution statement. That statement in itself does not admit conspiracy to commit offence nor commi.tting any offence at all. Appellant simply says that him and others were hired by one Rashid to go and off load some goods from a defective vehicle only to he led to thA godown. Again it. may highly he suspicjous but convir.tion cannot. hA found on this. For the rer1sons oi.scBssed above thP. conviction r1nd ensuing sentences are hereby quash Ad r.1nd set as i ae. The Appe U.r.1nt is to be set ;:it lihArty 1mlP.ss otherwise lawfully held. (L. B. Kalegeya) ,JUDGE Judgement delivered today the 15\l\99 in the presence of the State Attorney, Mr. Mdema. 7 ( L. R. KalegP.ya) ,JUDGE 15:1\99