Ambilikile Mwamfupi and 2 Others vs Republic (Criminal Appeal No. 106 of 1997) [1998] TZHC 2401 (19 June 1998)

41: -' r 1i l?JII, J_:_ l/1UJ ~ fvuih-1~ IN THE HIGH COUF.'l/0:F' TANZANIA AT HSEYA CRIMINAL i.PPEAL NO. 106 OF 1997 (From the decision of the District Court of Rungwe at Tukuyu in Criminal Case Nao 2 of 1997 Before~ F .No iVlatogolo District t.iagistrate) 2. .1-\1' 1 1BILIKILE i'-', l.v M-'iF'UPI) JACKSON iv\WAl\liFUf'I DARTON M\rv.Al\llBIPE ) ) ) Versus THE REPUBLIC O O O -~ 0 Q O O Q O O O <> 0 .ll O O ) I) U O 0 • J"UDGMENT APPELLAN'l 1 S RESPOHDENT The first, §E;c_o}?-,£ and thj.:rd appellants, .Ambilikile Nwarnfupi (3rd accused), Jackson Jv1wamfupi ( 4th ?3-ccused), Darton hwambipe (5th accused) 1 and two others 1 1-lichard Ngoroke ( 1st accused) and Tin;oth i']walukasa (2nd accused) 1 were jointly arraigned before the district court of imngwe on an indictment which contained two counts First count: Burglary, contrary to section 294(1) of the Penal Code. Stealing, contrary to section 265 of the Penal Code. They all pleaded not guilty to both counts and a full trial followed. J'he first and second a.ccuseds were acquitted of both counts. The third ,-.,,....,.,._ appellant was convicted as charged and sentenced to terms of imprisonment of five years and three:years respectively, which were ordered to run concurrently. The first and _sec?r.:id appellants were convicted of Being in possession of property reasonably suspected of having been stolen or unlawfully acq:-J.ired, contrary to ' ' ' section 312('1) •of'\h 0 Pnal Cod. •rhe appellants were a 6 grieved by the convi .. ct ions and sentence, hence this appeal which vias unresisted before rne b_y the learned state attorney for the l{epublic, Mr. Boniface 1 Mr. Mwangole; learned advocate, 'represented the third appellant in this appeal, whereas the first and . . ,.- ..... ..,.-- ---- -~~cp2:.9:. appellants entered appearances before me and argued the appeal themselves. /2

2 The following maerial·facts were established in evidence at the trialo During the night of ..0-J.?.! 9§ μnknown persons broke into the po oho milling mashine building of Jererniah · Joshua· Ke.ssy PW1 and made away with two electric motors .. !!iB per the charge sheet, one motor was serial number 119695 Horse Power (HP) 15, and the other was serial nurnber 335115 HP 20 .. - · P.J1 had purchased. the two motors ·• ' • ." I) « ., e d •· ' • • • on 22.5086 and obtained· a:··cash sale receipt Ho. 290 CSxt P1) Qearing that dateo As per Elxt P1 the serial numbers and Horse Powers of the stolen motor are I-18-102366 20 HP and 235115 15 HPo Cm 23 .. 12.96 the third appellant met the first appellant and told hirn . ' that he was from Zambia and asked him to keep two motors he wanted to t~~·- - to 'I'ulrnyu. 'i11.e first appella.1t told him his house was far and suggested they keep the motors at the house of his brother, he second appellant, whioh was nearbyo i"'ney took the h10 motors to the house of the .second appellant 'and found him absent at work. Only his chilch·en were at home. '1 1 hey left' the motors there, and the third appellant, on being a.sked receipts by the first appellant, promised to produce them the following dayo Upon arriving bqtck_ home from work, the second a.ppellant found the two r11otors at his house and was told by his children they were sent there by his brother, the first appellant,. and a person they did not know. 'I'he following day (2L!·o 12a 96) the second appe1lant approached the first a;::ipellant. and told h:i.rn he would not let the motors remain at his house .} . without the .. necessary receipts. Upon returning home in the evening, the second· appeJ.lant found the two motors gone fro/;1-'his house and was told that '.'they were tal;:en away by the third appellant. florre Neither the serial numbers nor the - "' Power unit,s of the two motors were establishedo · Cn 2.3_. 0 1?•9-?, one f'1alyanga, ,·,ho did not testify, sent a rnotor to Asafisye f ✓ 1wangosi HJ5 for testing. 1 1 l1e second 2ppellant, among other persons, was with llfialyanga. P\rJ5 was an electrician. 'l'he motor was found workingo ;½alyanga told P\v5 that the motor was for sale. :th1ma,.vmel hacha PvJ8, who was after a motor for his posho milling ina.s:1ine, · was summoned.· A price of shs .. 300 ,000/= was asreed upon, but PW8 declined to purchase the motor when M2J.yanga failed to produce its necessary supporting documents.. 'lhe serial number of that motor wa13 not establi- ooooe ♦ eooaoooo /3 r ,.

• tl ' 3 shed, but it was 25 HP. On ..!tJE.Q6 the third appellant sent a motor to the first accused; who was acquitted, for storageo It was common tjround that the third appellant and the first accused were very well known to ec:ch other. 'i'he fo:cmer had been a policeman working at police workshop and the latter a Comworks worker. 'J:he third appellant were to collect the motor from the first accused on 28.12.96 but he did not go for it: On 29.12.96 PC Hichc,rd FvJ'7 and PW1 went to the house of first accused and found the motor there. First accused said. it was taken there by the third appellant. 'I'he motor (Ext Pz) was allegedly identified by PW1. Its serial number had been erased, but P'J1 had. to peruse its receipt (Ext P1) and say its serial No. W813 N8 .:. 102766 20 H. f, :'he third appellant admitted to have taken 'l'he colour of Ext P1' a motor to first a.ppella..11t but claimed it was not Ext P1 • was light blue. 'rhe only one iss1i'e upon v1hich this appeal is bound to succeed or fail centres on the identification evidence of PW1 1 s stolen property. I would, on the evidence, re:spectfully agree with both i\r. r•1wangole and !1.ir. Boniface that the identification<evidence in this case was most unsatisfactoryo ,fi_rstly, the identity of the two motors vlnich passed hands among the three appellants was not establishedo. Absolutely no evidence as to their identity was led. Neither their serial numbers nor their florse Power units were given_ P\iJ1 did not see them, so he could not have·identified that which he did not see. It was not established that it was one of these two motors that the third appellant took to the house of the first accusedo 'l'he learned trial ma8istrate had sirnply made an assumption that the two motors were the- stolen proper·ty ·of PW1. With respect, this was clearly wrong. Identificatiori of an article such as 8. motor must be by either its serial number or by ·a satisfactory desciiption in which 'special marks or ·rr· features obtaining in it are pointed out. 'l;his was not the ·ce here • . 0.~.0,2nd.ly, the motor sent to PW5 on 23.12.96 was, likewise, not established to have been the stolei1 property of P:J1 0 ItS serial number was not mentibned. Again, PW1 did not see it in order to identify'it. Its HP unit, however, was 25, So that motor could not, in m1y event, have been one of the two motors stolen from oeoo,ooo••••,.•• /4

PW1 which were of 15 and c;O Horse Power units. 1vith respect to both learned Coun~~l,' it was not established that it was this motor which was found with ., the first accused on 29.12.960 Indeed, it could not have been the same, ·for the motor found with the first accused was 20 HP units. And .Pi.£.cfl.Y., there was the· inotor (Ext P2 found with the first accused. Its serial number, according to Pv/1, WL=<.s not there. It had been erased. But PW1 purported to identify the motor by quoting its serial number on its receipt (Ext P1)• With respect, this was insufficient. It gave room to uncertainties. A serial nurnber on a receipt rnust match with that on the c;\I'ticle. In this article (Ext P2) the erased serial number could have stood for any serial numbero It could not be said with any degree of certainty that its serial nw11ber was the one indic&ted in Exp P1 o .This, therefore, gave rise to uncertainty as to the serial number of Ext P2. PW1 had simply guessed. 1 l. 1 his \•muld account for the fact that the charge sheet gave different serial numbers· for the stolen ii:iotors ~. ~ . from those indicated in the receipt (Ext P1). 'l'his could not have happened had the serial numbers of the stolen ;r1otors been certain. PW2 did not give any description of Ext P2, let alone pointing out special marks or features. Identification of an article such as a motor by its HP unit only cannot be of any help where the question of its identification is in isi;,u.e as thousands of similar items may be of same HP unit. For all the foregoing reasons, I allow the appeal, quash the convictions, set aside the sentences, and heretiy order the i.1:mediate release of the three appellant:s"'.'f:ro11.1..,prison unless otherwise lawfully held. ·-S J - ·r (; >, .. ~ (, . •. ·:'<". ~ / ;< t. 1 1 ' ' ; . ..-"'." \ .. \ { . ·.AJ.1'1.B.XA•, . . ·• 19 June 1998 ' . . 1 ' • • !! . .l ' - •' • 'i-... > J

• •.. For First App;31lanb ~ .,.._For,,,;,econd .Appe;llant ~ Fo:r: Thi-.i Appeilant ~ . . · .. ,-, . · Present', unrepresented. Present, unrepresented. hr. Mwangole, advocate. For Republic: hr.so r-'i/.;•kuru, S.S.A. B.P. NOSH.I JUDGE I CERTIFY 'I'HAT THIS LS A TRUE COPY OF Ti{t); O:RIGIN.AL. ,,. ,.