Francistown High Court Judge Nomsa Moatswi has set aside conviction and sentence against Mosimanegape Magapatona, a middle-aged man who was convicted and sentenced to six years imprisonment by Masunga Magistrate Court accused of breaking into Masunga Post Office stealing cash and valuables worth over P400 000 from Masunga Post Office on the 17 th of February 2016.
According to the particulars of the offence, on the 17th of February 2016 Magapatona and another who was not before court acting together and in concert allegedly broke into Masunga Post Office and stole cash amounting to P216 383.25 and four laptops, four Nokia Cellphones, 4803 Mascom re-charge cards, 72 x Mascom 60.00 re-charge cards, 13 x Mascom P100.00 recharge cards, 1326 x Orange P20.00 re- charge cards, 4934 Be-Mobile 20 recharge cards and 5 Be-Mobile recharge cards. All the properties stolen including cash were valued at P466 801.45.
The accused then launched an appeal at the Francistown High Court against conviction and sentence. In his grounds of Appeal, the Appellant( Magapatona) argued that the magistrate court erred in finding that the State had proved its case beyond reasonable doubt as non of the items stolen from Masunga Post Office were found in his possession. He also argued that none of the witnesses testified that they obtained fingerprints from him or were present when such was done.
While in its submission the State had said that the Appellant’s fingerprints matched two prints up-lifted from the Masunga Post Office, there was no evidence led during trial disclosing when these fingerprints were obtained from the Appellant and by whom.
According to court documents, during trial at the Magistrate Court none of the items allegedly seized from the Appellant were identified by any of the state witnesses as being connected to those stolen from Masunga Post Office. Instead the trial court in its judgement only invoked the doctrine of recent possession and posited that some items from Masunga Post Office were recently found on the Appellant thus identifying him and charging him of break in and theft.
From the evidence led during the trial it was established that cash in the amount of P216 383.25 was stolen from the Post Office and the Appellant’s possession upon arrest seven days later was a paltry P795 in notes and P55 in coins. The Appellant was also found in possession of a Samsung cellphone.
Giving her ruling, Justice Moatswi said the evidence adduced before the trial court was not justified and was misplaced.
‘There was no evidence led showing that the money found on the Appellant, a measly P795 was part of the P216 383.25 cash stolen from Masunga Post Office.
Coming to the cellphone found on the Appellant, there is nothing to connect it to those stolen from Masunga Post Office,it being a Samsung whilst those stolen were Nokia cellphones.I therefore find that the doctrine of recent possession did not apply in this case,’ said the Judge.
The Judge also questioned as to how the Magistrate court arrived at its verdict, when none of the prosecution witnesses testified that they actually took the finger prints that were eventually compared with those uplifted from the scene of crime.
There was also no witness in court who identified the document containing the impressions of the Appellant’s fingerprints as having been taken by such person prior to being forwarded to the Local Bureau.
‘The prosecution failed to establish nexus between the Appellant and the fingerprints allegedly obtained from him. Failure to do so renders the Appellant’s conviction, which rested primarily if not completely on fingerprints evidence liable to be set aside,’ said Justice Moatswi.
The conviction and sentence imposed by the trial court were set aside. Meanwhile the Appellant’s had prayed before court to make an order for the Police to return his vehicle which he claimed was confiscated. However there was no record before court suggesting that his vehicle was confiscated by the Police.
‘On appeal we go by the record and from the records there was never any mention of any vehicle that was produced as evidence nor was there any order by the trial court pertaining to the disposal. In the result, this Court is not in a position to make any order relating to the alleged vehicle. The Appellant is at liberty to explore relevant provisions of the Criminal Procedure and Evidence Act pertaining to items seized as Exhibits.