DIRECTOR OF PUBLIC PROSECUTIONS v ELIAS MWASHITETE AND ANOTHER 1997 TLR 319 (HC)

 DIRECTOR OF PUBLIC PROSECUTIONS v ELIAS MWASHITETE AND ANOTHER 1997 TLR 319 (HC)

Court High Court of Tanzania - Mbeya

Judge Mwipopo J

CRIMINAL APPEAL 33 OF 1996 G

17 December 1997

Flynote

Criminal law - Robbery - Proof of - Circumstantial evidence - Evidence must lead to

irresistible inference

-Headnote

The Director of Public Prosecutions appealed against the acquittal of the first and

second H respondents in the Mbozi District Court on a charge of armed robbery.

The evidence was to the effect that 65 bags of coffee had been stolen from the

complainant by a group of robbers in a lorry and saloon car. The robbers who were

armed with a gun broke into a godown and took 65 bags of coffee, 45 bags of which

were subsequently found in the possession of the first respondent. The I villagers

whose

1997 TLR p320

A coffee had been stolen followed the lorry and kept guard over the first

respondent's house until the police arrived to give them assistance. The first

respondent's defence was one of an alibi. He claimed that he had been wrongly

identified as one of the robbers and this identification had been based on an

inadequate opportunity to make a proper identification. On appeal,

B Held:

There were a number of possibilities as to why some of the stolen coffee had been

found in the first respondent's house. These were reasonable possibilities and it was

accordingly inappropriate to use circumstantial evidence to convict the first

respondent as the circumstantial evidence would C have to have lead irresistibly to

the only conclusion that the first respondent was involved in the robbery in some

way. The acquittal was accordingly in order.

Case Information

Appeal dismissed and ordered that the coffee in question be returned to the

complainant as it had been sufficiently identified as being the complainant's property.

D Case referred to:

1. Athuman s/o Mwarungwe v Republic Civil Appeal No 18 of 1991 -

(Mbeya) (unreported)

Mulokozi for the appellant.

E Mkumbe for the first respondent.

[zJDz]Judgment

Mwipopo J:

This appeal has been taken by the Director of Public Prosecutions against the

acquittal of Elias s/o F Mwashitete as the first respondent who was the first accused

in the lower court of Mbozi District Court and of Joseph s/o Michael as the second

respondent who was the second accused in the same trial court. The acquittal was

from charges of armed robberies contrary to ss 285 and 286 of the Penal Code as

amended by Act 10 of 1989.

G The appellant at this stage was represented by the learned Mr Mulokozi State

Attorney whereas the first respondent Elias s/o Mwashitete was represented by the

learned Mr Mkumbe Advocate. The second respondent Joseph s/o Michael has gone

underground and can't be traced through his H addresses given to the police at the

time of his arrest and even through his address given to the trial court at the time of

his acquittal being PO Box 304, Mbozi Mechani of Mlowo village c/o Ten cell leader

James s/o Shangwa. Both sides asked the court to proceed with the appeal with the

present respondent and defer the appeal against the second respondent to another

future date in order to I do quick justice to the first

1997 TLR p321

MWIPOPO J

appellant who has always been attending this court both by himself in person and his

advocate, The A Mbeya RCO (Regional CID Officer) undertook to continue looking

for the second respondent in order to serve him to appear for this appeal.

The written grounds of appeal of the Director of Public Prosecutions were

summarized by the learned Mr Mulokozi that the trial court was wrong to acquit the

first respondent despite the B overwhelming evidence that the complainants traced

the robbers' motor vehicle from the scene of the armed robbers at their Iporoto

Village Primary Cooperative Society's go down to the house of C the first respondent

at Lungwa Village; that part of their sixty-five bags of coffee stolen and loaded in the

robbers motor vehicle at gun point within their sight found their way to the house of

the first respondent and the same forty-five bags were properly identified by their

owners that the first respondent was seen and identified handing the stolen sixty-five

bags of coffee at his house; and D lastly, that the doctrine of recent possession should

has been applied to find the first respondent guilty of armed robbery as charged in

view that the first respondent was found with the stolen sixty-five bags of coffee

hardly five hours after they were robbed from the Iporoto Village Cooperative

Society. The other ground of appeal involved an order for restitution of the forty-five

E bags of coffee seized by the police from the first respondent to the same first

respondent. The learned Mr Mulokozi argued that since the identity of the sixty-five

bags of coffee had been well established to belong to different peasant members of

Iporoto Cooperative Society by their special F numbers and as shown in Exhibit P4.

On the other hand the learned Mr Mkumbe for the first respondent has vehemently

opposed this appeal and supported the decision of the trial Mbozi District Court in

acquitting the first respondent G as well as ordering the forty-five bags of coffee to

revert to him. The learned Mr Mkumbe Advocate argued that no eye witness

identified the first respondent to have been seen at the time of the robbery at Iporoto

Cooperative Society.

The learned Mr Mkumbe advocate further argued that the identity purportedly made

by PW2 of the first respondent at his house while he was with the occupants of the

robbers lorry was dubious and H unreliable for it was based on clothes only at a long

distance, 100 paces away at night or dawn, and that the same clothes were not proved

to belong to the first respondent.

Similarly, on the identity of the forty-five bags of coffee found at the house of the first

respondent, I the learned Mr Mkumbe argued,

1997 TLR p322

MWIPOPO J

A that they belonged to the first respondent who was a good farmer with 61/2 acre

coffee farm from which he harvested them and he told the police about them even

before they searched his house.

The learned Mr Mkumbe further counter argued that since the family of the first

respondent was not B at home for the entire day of 6 September 1995 it was possible

that the villagers from Iporoto village who testified as PWs two, four, five and nine

and who had kept vigil over the first respondent's house from 5.00 am until 6.00 pm

when the police came are the ones who broke his house and planted inside that house

the weighing machine of Iporoto Cooperative Society and C marked the forty five

bags of coffee of the first respondent with their respective membership numbers in

order to fix up the first respondent with this offence.

The ownership of the coffee, according to the learned Mr Mkumbe, was properly held

by the trial D magistrate that it should be determined in another civil suit. He cited

the case of Athuman s/o Mwarungwe v R (1) as an authority that ownership dispute

over property should be determined in a civil suit.

The Trial Magistrate, the learned Mr Safari, seemed to disbelieve the entire story of

the prosecution E witnesses that they followed up the lorry of the robbers from their

village of Iporoto up to the Lungwa village of the first respondent. He also held that

the failure of the Iporoto villagers to mark the numbers of the robbers lorry, to block

the road so that it could not leave the first respondent's F house, to raise an alarm

and to summon the help of the villagers of Lungwa as well as to call the Lungwa

village leaders to testify in court made them untrustworthy of any credibility. The

trial magistrate further believed the testimony of the first respondent and held based

on the credible defence of the first respondent that the Iporoto villagers are the ones

who broke the house of the G first respondent planted in his house the weighing

machine of Iporoto Cooperative Society and marked the bags of coffee of the first

respondent with their numbers in order to incriminate the first respondent with this

crime.

H At the first time the respondents were taken to the Mbozi District Court on 11

September 1995 there were three accused namely Elia s/o Mwashitete the present

first respondent who was the first accused, Tobias s/o Mayele who was the second

accused and Joseph s/o Michael who was the third accused the present second

respondent. The charge sheet too contained two counts of armed robbery contrary to

ss 285 and 286 of the Penal Code in the first count and the store I breaking and

stealing contrary to s 296(1) of the Penal Code.

1997 TLR p323

MWIPOPO J

The same original charge sheet was substituted with another charge sheet on 4

December 95 after A the second accused Tobias s/o Mayele was on 20 November

1995 under 98(1) of the CPA by the withdrawal of the charge in his favour. The

present two respondents were left in the present charge sheet to face the trial. The

substituted charge sheet contained only one count of armed robbery contrary to of ss

285 and 286 of the Penal Code having left out the previously second count of store B

breaking and stealing contrary to s 296(1) of the Penal Code.

As much as issues of credibility of witnesses and findings of facts are left to be

determined by the trial court there seems to have been grave errors in the finding of

the facts of the trial court which C need to be corrected by this court on first appeal.

The background of the crime which occurred in Iporoto village twenty kilometres

away at the scene of the crime was not considered seriously by the trial court. I better

start from there. From the testimonies of PW1 Witson s/o Songa the Manager of

Iporoto Rural Cooperative Society, PW2 Mateso s/o Kailon, PW3 Festo s/o Namoyela,

PW4 D Fabiano s/o Kamola a committee member of Shanwe Iporoto Cooperative

Society, PW7 Raisi s/o Malimoja the village Executive Officer (VEO) of Iporoto

village government and PW10 Eliakim s/o Ali the watchman of Iporoto village

Cooperative Society the sequence of the events was that at 3.00 am after midnight a

lorry and a saloon car came to Iporoto Cooperative Society's coffee godown to E

store break and steal coffee from it. PW10 the watchman sneaked into hiding in time

to see what occurred. When the thieves started breaking the store he went to ring a

bell signifying danger and most of the villagers came out from their homes in full

vigour to give help to the watchman to F apprehend the burglars. But, they were

met with a terrifying firing of bullets by the armed robbers which kept all the

villagers at bay far away and in hiding. The armed robbers continued loading the

sixty-five bags of coffee worth Shs 5,516,00/= and left undisturbed. But, it occurred to

some G villagers that they should follow the lorry which was not moving very fast

with bicycles to see where it went. Among such villagers was PW2 who followed the

lorry for twenty kilometres until the lorry ended up in Lungwa village at the house of

the first respondent. They didn't know where the saloon H car had gone. They kept

in hiding about one hundred paces away from the house seeing the coffee bags being

unloaded into the house of the first respondent without raising an alarm until the

lorry later left that house for another unknown destination after 5.00 am. They

decided to keep vigil over that house until morning when they informed the village

leaders about this incident but the I

1997 TLR p324

MWIPOPO J

A village leaders and people refused to render them any help for fear of retribution

from the first respondent until 6.00 pm when the police came from the District offices

at Vwawa where some of the Iporoto villagers had gone to seek help. During the day

more villagers continued pouring around the house of the first respondent until they

became a big crowd. Some came with bicycles others B walked on foot for four

hours such as PW7 who left Iporoto on foot at 8.30 am and reached the house of the

first Respondent at 12.00 noon. Out of the whole crowd no villager from Lungwa

village gave them any help of keen interest to enquire what was happening. But, no

doubt it was a big C unheard of event in the vicinity for the house of first

respondent to remain under guard by strangers from an unknown village. The village

leaders of Lungwa were quite nervous and apprehensive of the whole episode, for the

police found them at their village government's office also, waiting for the D police

to come most likely.

With this background, which was not considered by the trial court in its assessment

of the evidence as a whole, I find as a true fact all this narration of prosecution

witnesses did happen.

E Since there was firing of guns at Iporoto village all the witnesses from Iporoto

knew that the robbers were fully armed and meant business with their guns. It was

expecting too much from them that they should have seized the lorry while it was

unloading the coffee at the first respondent's house. Similarly they could not have

raised an alarm for they could have been easily killed by F exposing themselves to

the armed robbers. Failure to identify the numbers of the lorry can be easily be

explained in the same vein of being scared to note such numbers and being novice

peasants. Further they successfully traced their coffee and kept guard of it until the

police came to give them assistance -- fifteen hours later on. The Iporoto villagers are

courageous and vigilant citizens who G played their preventive role to protect their

property to the best of their intelligence and means for which they ought to be

congratulated. With this background I also dismiss the findings of the trial court that

the Iporoto villagers are the ones who broke into the house of the first respondent

and planted their weighing scales there and printed the bags of coffee of the first

respondent with their H numbers in order to incriminate the first respondent. I find

the opposite as testified by the prosecution witnesses to be the truth that the forty

five coffee bags found in the house of the first respondent were deposited there by the

armed robbers out of the loot they stole from Iporoto I Cooperative Society at gun

point. Similarly, the weighing scales of Iporoto

1997 TLR p325

MWIPOPO J

Cooperative Society was stolen and brought to be kept in the house of the first

respondent by the A armed robbers themselves.

As argued by the learned Mr Mulokozi State Attorney the issue of the identity of the

forty-five bags of coffee was conclusively proved to belong to the different members

of the Iporoto village villagers because their numbers were found marked on the bags

and as per their cooperative society's office B book exhibit P 4. To find that the

villagers of Iporoto village went and broke the doors of the house of the first

respondent and marked the bags with their own numbers is quite absurd for the very

Iporoto villagers testified otherwise and the first respondent was not there to see.

After all according C to the testimony of PW2 the wife of the first respondent was in

that house for the night, morning and until 2.00 pm when she left the house not to

return again until when the police came and found nobody in that house not even the

children and both 2 wives of the first respondent who lived there had abandoned the

house, and the first respondent testified not to know where they went. D

The next issue for consideration is the identity of the first respondent. Both the

learned Mr Safari and the learned Mr Mkumbe Advocate held the view that the

identity was not safe to base a conviction on it since it was dark and only the clothes

of the first respondent were identified and they E did not know each other prior to

the day of incident. Further, the identifying witness was standing in hiding one

hundred paces away and that no identification parade was made to ascertain if the

prosecution witnesses fully recognized the first respondent. F

The only witness who identified the first respondent was PW2 Mateso s/o Kailon. He

testified that he saw and identified the first respondent by clothes with a shirt which

was reddish with blue dots. This piece of evidence came out of re-examination of this

witness (PW2) by the public prosecutor Inspector Sangija. Why didn't he bring it up

during examination in chief? Even during cross G examination of this witness (PW2)

no question was asked on the identity of the first respondent. So, this question of

identifying the first respondent was wrongly admitted in the first place for reexamination

and must arise out of cross-examined questions -- unless the court

permits such H new questions in which case the other side must be given time to

cross examine on the new question arising out of the re-examination. The first

respondent was not given such chance to cross examine PW2 after he testified on reexamination

that he identified the first respondent from his clothes. On this legal

ground of improperly admitting evidence of identification of the respondent I

1997 TLR p326

MWIPOPO J

A in re-examination without affording chance to the first respondent cross examine

on it coupled up with other valid reasons on identity of first respondent referred to by

the trial magistrate and the learned Mr Mkumbe I find that the first respondent was

not properly identified at all to have seen the B armed robberies when they were

unloading the stolen coffee at his house. Since none of the prosecution witnesses

identified anybody at Iporoto village and improperly identified the first respondent at

his house the defence of alibi of the first respondent that he slept with his first wife at

his Vwawa house remained unrefuted by the prosecution.

C The next issue for determination is whether the first respondent is guilty of

receiving stolen property. Why did the robbers bring the coffee to the first

respondent's house? Can it be necessarily inferred that he conspired with them to

keep it for them for storage purposes in order to share the loot. There are many

possibilities to it but three possibilities seem to be cogent to have D been the case.

The first possibility is that the first respondent was part and parcel of the armed

robbers as their planner or financier etc and that they brought the forty-five bags of

stolen coffee as his share of the loot. In this situation he would be a principal offender

and guilty of armed robbery as E charged. The other possibility is that the first

respondent was not one of the principal offenders and guilty as charged for armed

robbery but a mere receiver of the stolen property as a usual customer -- buyer of the

stolen coffee or as a usual storer of the stolen coffee for a fee. In this second possibility

he would be a guilty receiver of stolen property for which he could be convicted F as

such under s 311(1) of the Penal Code or if the doctrine of recent possession can apply

he could be convicted of the principal offence. In this case the doctrine of recent

possession would not apply to him for he was not identified to have slept in that

house. But, his wife, who was in that house and left the premises at 2.00 pm to hide

away from her own house should have been visited G with this offence and so

charged. She wasn't even charged for the weighing scales which was found hidden

under the bed-mattress in one of the five bedrooms of the first respondent!

H The third possibility, that since the first respondent testified to have mentioned

to the police before searching the house that he had forty-seven bags of coffee in his

house he too might have been a victim of house breaking and stealing by the same

armed robbers as was Iporoto Cooperative Society. The robbers are intelligent people,

they might have planned to go and rob the I first respondent just

1997 TLR p327

MWIPOPO J

after robbing Iporoto village. They succeeded in breaking the door, but out of the fear

that they would A be caught with the marked forty five coffee bags of Iporoto they

dumped all the forty five marked coffee bags of Iporoto, kept for themselves the

remaining twenty bags from Iporoto which possibility had no good marks on which

marks they to erased on the way from Iporoto to Lungwa village and B added up

another loot of forty-seven bags of the first respondent which were unmarked to go

away with a total of sixty-seven bags of coffee that night!

With these reasonable possibilities it is not easy to use circumstantial evidence to

convict the first C respondent with any criminal offence because circumstantial

evidence does not irresistibly lend to only one inference that the first respondent

received the forty-five bags with guilty knowledge that it was stolen. Had it been his

wife who was at home it would have been a different matter.

As for the weighing scales the Public Prosecutor was very funny to have not included

it in the D particulars of the offence although it was not disputed that it belonged to

Iporoto Cooperative Society. Nevertheless, it was already returned to the same

complainant. The finding of the trial court that the forty-five bags need another civil

suit to establish its ownership was erroneous and it is hereby quashed. The same

forty-five bags were conclusively established to belong to the E respective peasants

of Iporoto Cooperative Society as per Exhibit P 4. The same be returned to them

immediately. Otherwise, this appeal is dismissed for the over given reasons. F

1997 TLR p328

A