Bakari Lemboto Kapela and Another vs. The Republic (DC. Criminal Appeal No. 87 of 2022) [2023] TZHC 22580 (13 November 2023)

Key Facts

Issues

• The court reviewed the legality of the seizure note's procedure, with the prosecution asserting compliance with section 38 of the Criminal Procedure Act. The judgment found the seizure certificate was filed and signed at the scene of crime as required by law.
• The court analyzed whether the trial court considered defense evidence, such as the PF3 form documenting police beatings. The judgment concluded the defense evidence was evaluated, and the trial court's decision was based on all available testimony.
• The court scrutinized the chain of custody for the stolen cattle, with the prosecution providing evidence of seizure and return to the owner. The judgment upheld the chain of custody as established by PW4's testimony and the absence of contradictions in the evidence.
• The court evaluated the voluntariness of the caution statement, noting the trial court's inquiry found it was made voluntarily. The judgment affirmed compliance with sections 50 and 51 of the Criminal Procedure Act, as the statement was recorded within prescribed hours and without coercion.
• The court assessed whether the prosecution proved the conspiracy charge beyond reasonable doubt, noting the lack of communication evidence between the appellants and the absence of corroboration for the conspiracy allegation. The judgment concluded that no evidence established an agreement to commit an unlawful act.
• The court determined if the prosecution's case was fabricated, as the appellants argued no witnesses from the locus quo were summoned. The judgment found six prosecution witnesses sufficiently proved the case, with no requirement for additional witnesses under section 143 of the Evidence Act.
• The court examined if the prosecution's evidence from independent witnesses was sufficiently corroborated, particularly regarding mobile phone communications. The judgment highlighted the absence of voice notes or call logs to substantiate the conspiracy allegation.

Holdings

• The court dismissed the conspiracy charge against both appellants due to insufficient evidence to establish an agreement to commit an unlawful act. The prosecution failed to prove the existence of a conspiracy between the appellants.
• The court upheld the conviction of the 1st Appellant for stealing five herds of cattle, citing evidence including being found at the crime scene, witness testimonies, and a caution statement. The 2nd Appellant was acquitted of all charges, including conspiracy, and released.

Remedies

• The court upheld the 1st appellant's conviction for stealing five herds of cattle, as he was found at the scene of the crime and provided a cautioned statement admitting to the offence.
• The 2nd appellant was set at liberty unless held on some other lawful cause, as there was no sufficient evidence to uphold the conspiracy charge against him.
• The court quashed the conviction of both appellants for the offence of conspiracy due to lack of evidence and set aside the sentences imposed on them for this charge.

Legal Principles

• In criminal cases, the prosecution must satisfy the court 'beyond reasonable doubt' as per Section 3(2)(a) of the Evidence Act. The judgment underscores this standard as critical to upholding convictions, particularly in evaluating the conspiracy charges.
• The prosecution bears the burden to prove a criminal charge, and this burden does not shift to the accused. The Court emphasized that the accused need only raise reasonable doubts about the prosecution's case, as seen in the rejection of conspiracy charges against the appellants due to insufficient evidence.
• Electronic evidence (e.g., voice notes, call logs) is admissible in Tanzanian courts if properly obtained. The absence of such evidence in this case created reasonable doubts about the conspiracy allegations, as the prosecution failed to demonstrate communication between the appellants.

Precedent Name

• Ibrahim Ally Mwadau vs. Republic
• Maliki George Ngendamkumana vs. Republic
• Republic vs Halfan Bwire Hassan and 3 Others
• Mohamed Haruna @ Mtupeni & Another v. Republic
• John Paul @Shida and Another vs. Republic
• Pantaleo Teresphory vs Republic
• Mwita and Others v. Republic

Cited Statute

• Penal Code
• Criminal Procedure Act
• Evidence Act

Judge Name

Passage Text

• Having underscored the principle above, there is no evidence at all establishing that the appellants sat, met or communicated together somewhere and conspired to commit the offence of stealing cattle. The fact that the first appellant phoned the second appellant is not enough to prove that the offence of conspiracy was committed. This evidence is wanting.
• This appeal should partly be allowed in respect of upholding second ground of appeal. As such, both the 1st and 2nd Appellants are exonerated from the offence of conspiracy for lack of cogent evidence to establish existence of this offence. The rest of the grounds are dismissed for being destitute of merits.
• We, again, entirely agree with the learned Senior State Attorney that, given the fact that the offence was committed during a broad daylight and the appellant was allegedly arrested at the scene of crime, the issue of identification does not arise. The Court has on a number of times held that where an accused is arrested at the scene of crime his assertion that he was not sufficiently identified should be rejected.