yasini rashidi mwinuka another vs republic 1986 tzhc 34 29 october 1986

IN THE HIGH COURT OF TaNZaNIa AT KTWaRa CONSOLIDATED CRIhlNAL At-fiiH ,5 NO.ll & 75 QF 1986 Original Criminal Case No. 161 of 1984 of the District Court of Song«a District At Songea ;V:ixoro G»M# Nkwera, Esq. Resident magistrate X.iS x .jI RAfahlDI HWINliKA ^ T, ::..u,IDU u a SHIDI hWINUKA ••»•»»••• APPELLANTS Versus j.. UbLIC oofoo^opo.ooefco^oooo REbt'Oi'uDh.NT J U D G M E N T R U 3 A* i-i, J"o YASINI RASHIDI hWINUkA, NASIBU R a SHIDI M m INUK a and 5 Others vfare charged with burglary and stealing. All were convicted except that the last having jumped ba:il was convicted in absentia. Yasini Rashidi Lwinuka and Nasibu R a s m d i tiwinuka appealed against both convictions and sentences. Tneir appeals have been consolidated, with Yasini Rashidi m a n u k a hereby referred to as the first appellant and Nasibu Rashidi Mwinutca arj the second appellant. Th^r- is sufficient evidence to establish that the house of Menas r.&yonbo (PW10) had been burgled on the night of 10th Seot':iab(-;r, 1984, There is further credible evidence to show thvc several items had been stolen from the burgled house. Tlio houses of Yasini Rashidi m a n u k a , his fiancee and hir, aothcr were searched by the police on the 19th September, 1904 and from those houses some item*i seized. Some of chos^ items were later identified by the complainant as having been so,;.e of the items stolen from his burgled house o'.i tn night of 10th September, 198^. The trial magistrate: accepted as true that those items taKen from the houses of the first appellant, his fiancee and his mother had bean stolen fron. the burgled house. Proceeding on this flading ano. invoicing the doctrine of recent possession, the first ic ;second appellants were round guilty of having burgled t.ie house of the complainant some nine day before and of iKvv ii ,g stolen several items from therein. 1-1-'.'• Sang awe learned State attorney for the Kepublic did not support: the finding of the trial magistrate. He submitted that c.., • tr/.al 'magistrate diet not properly addressed himself on tn ; xr.RU;- of identification of things taken from the appellant, his fiancee and his mother. He maintained that all that t.-.--: complainant had done in respect of these things his was juuc co point out that those items were/witnout first pointing out which identification marks he was going to rely on i d e n t i f y i n g the seized items or to put it differently the complainant had not given the description of the items before being shown the same by the police. I find merit in the submission? of l-;r. Sangawe in respect of the items recovered from thi. appellant, his fiancee and his mother. The description givc-n in respeet of items taken from these three houses was in-sufficient. The identifying marks given in respect of foam mattress and pieces of sponge in the light Of evidence given by the appellant is not sufficient enough to justify sustaining the convictions. There was nothing Complainant and the appellant clained ovmarship of these items with the appellant producing receipts said to have been issued to him o;* the days he had purchased the same. The complainant haa relied on the fact that, pif-cos of sponge fitted the seat covers he had, were of the same size as one of the pieces alleged not to have been stolen on the 10th Qf September, 1984 and further had properly fitted the chairs he had. Good evidence but not strong enough to establish the fact that those were his items and not of the appellant. There is still room for existence of coincedence. The evidence of complainant dees not exclude have been the possibility that coul.d / telling the truth. The magistrate in his judgment had wanted the appellant to ssta.jlj.sh iixs ownership of the goods recovered from his house, t o± his fiancee and the.t of his mother. It was this thot led hr. Sang awe to submit to thxs court that the tr ..iao-strate seemed to have shifted the burden of proof !;g t'.:: appellant, a submission that has murit. It was the duty Oj.: the prosecution to establish that the goods in d i s p u t owned by tne complainant and not the appellant. In thin •: .np-ict the prosecution failed to establish complainant *c ownership in respect n<s£ only of the mattress and piecar, of sponge but also in respect of the neck tie, a mass produced item wnich surely cannot sufficiently be identified by its colour or a snap to show that once upon a time ciio complainant had a tie like that; the speakers, also mass produced and readily available in the market cannot be said sufficiently identified by stating that they fitted *nes radio. The appellant's evidence established reasonable doubt and . enefit of this reasonable doubt is to be given to hLl, In view ox the reasons outlined above I find merit in the a;r->.jal of Yasini Rashidi Mwinuka wnich is hereby allowed. I quash the convictions entered and set aside the sentences. The first appellant it to be set free at once unless he is otherwise held on another matter. The trial magistrate's approach in respect §£ the evidence covering the 2nd appellant (3rd accused) was not in accordance with the law, seems to have eicpecteci the second appellant to establish his innocence, crowning this expectation by acting on assumptions. He atated at page 20 in his judgment: 1 1 The accused said he was given that pyjama by 7th accused who was at large who ran away during the trial and that when he was given the said pyjama by t.ic 7th accused one Nasibu Hussa rfwenda was present. The explanation of third accused was not convincing enough it seems to me that this defence by' Vlu''accused came as suprise since he Knew that civ;: 7th accused could not come before the court to answer the allegations. His allegations were xia,-osec upon the 7th accused simply because he ran away. The witness of this accused didn't impress the court. when the accused was ordered .oy tue court so summon his witness on the first •-'~Y» : e was reluctant to do so, The accused c-.ciuea to bring his witness after a week. T court has all reasons t^ believe that t to witness was not told by telling truth. J. nave i-,11 reasons to believe that the witness war; tolc1 by the accused what to say before tne c w court o;. the r^aterial day. In view of the auo v g analysis 1 have all reasons to believe t.'.:.t t.ic: accused was among the people who committed the offences, this is due to the fact -Liat the case against him has been sufficiently proved and I hereby convict him for both counts'’. (emphasis supplied) Convictions entered on such evidence cannot be allowed to stand, as stated above, the trial magistrate had shifted the burden of proof to the second appellant ani secondly the assumptions made by the trial magistrate were wrong as is clearly shown by the evidence the trial magistrate had himself so laboriously recorded. Tne evidence shows that the second appellant's mention of the seveth accused had nothinc; to ao with the said accused absence in court nor was it intended to suprise the court or the prosecution. Tne ssconc! appellant, going £>y the evidence of B $556 Detective Cpl Steven (PVv2), had in reply to the police question soon following the discovery of the night dress in his house during a police search, stated that he had been given that night dress by the seventh accuse^. He mentioned this in the open and in the presence of many people. He had not at this time even been arrested; no pressure could b o said to have been applied on him. Of even greater significance is the fact that he had mentioned this to the police search party even before the seventh accused had b a r r e s t e d . The second appellant being human could not be said to have known the arrest and charging or the seventh accused the granting of bail to him and even cur l jumping of it. The analysis of the trial magi:* z-s therefore based on incorrect material. His finnings equally were faulty The police had enough ti.it- :-° chick the truth of the second appellant's story to v/n:icn I.' had consistently stuck. The police apparently did tio-c# I;Ut I find the story credible partly judging from the accused subsequent conduct and the willingness and proi.rriness with which it had been voluntered. The convirtxons against the second appellant cannot be allo\bo stand. They are hereby quashed. The imposed prison sentences are also set aside. Tne second appellant is co b--: set free at once unless he is otherwise lawfully field Oil other matters. Ju..ta Rushidi i'.winuka (the geconci accused during tne trial) viixs not convicted as charged but was convicted of receiving and retaining property wnich was stolen cr unlawfully obtained contrary to section 311(1 ) of the Venal Code, T. o terns said to have been received by him were some loud-'speakers whose ownership the first appellant had ccit-jgorically accepted. The evidence of Quma Rashidi Mwiiiui:c: wiis that he had been given all these speakers by the firat appellant* To this the trial court stated: :I -vertheless, taking into consideration the fact that the relationship of the 1st accused /tiir. first appellant? and 2nd accused was very strong, this court is ot the opinion that although the 2nd accused alleged that he was given those speakers by the 1st accused his brother, but the 2nd accused actually knew at the ti -c: v/hen he was given the said properties that the speakers and covers we$e illegally acquired. The two accused persons are brotners (1st accused and ,-hid accused they belong to one family) due to that fact X am q\jite sufe that the second accused knew that the said properties which he rec ived. from his brother the 1st accused were stolen somewhere. Due to that fact I aequit th,; accused person qn the charge of Burglary and. stealing but I' convict the accused on the charge of receiving and retaining pxcperfcy which was stolen or unlawjiul^y obtained ocuatrary -to section 311 (1) Of the Penal Code", I have a..>ove already stated that the prosecution failed to estc l:.r,h that the loud speakers had belonged to the co'aplai ..r'iit and not the first appellant (1st accused). This -...UK. trie prosecution had failed to prove that the loucl sp akers found in possession of Juraa Rashidi hwinuJca wera ’o .1 •. But even if the prosecution had proved that the loud speakers had been stolen, the brotherly relationship bet/eon th . first appellant and the second accused (J'uuia .;::.s:*ic'i i.winuka) would not have been sufficient to justify tli-.: inference of guilty knowledge on him (juraa Rashidi Iiv;muka)0 This blood relationship doe:> not maKe people fully confide in each other. It is therefore difficult to understand the reasoning of the magistrate which is not supported by any evidence. The trial magistrate made assumptions which are dangerQu:> for basing a conviction. Acting on revisional powers I quash this conviction set aside the sentence imposed on the accused. It is ordered that he be released from prison at oncc: unless he is otherwise lawfully held on another matter. In totality therefore, the appeals have been allowed in full, '•'V\ \ •\ ' V _ ... . ^ , • Yahya Rubama Judge 29.10.86 ' Coram: rruii.i. J. Parties absrjiito Judgment deliver t*d. ¥ahya Kubama Judge 29.10.