19931029 TZHC Dar es Salaam

Il'f THE HIGH COURT OF TANZANIA At Dar es §.§.l~am APPELLATE JURISDICTION CRIMINAL APPEAL N0 96 OF.1992 0 ORIG INA3:i CRIMINAL CASE NO r·. 51 OF 1991 . OF THE DISTRICT COURT OF ILALA DISTRlCT AT KISUTU Before J. Ruhangisa, Esqo; Resi~ent Magistrate 'SUDI ALLY VICENT PETER C ~ O O • 0 • O e • • u ~ 6 0 APPELLANT versus · THE REPUBLIC e Cl O 6 0 0 0 O • 0 0 0 8 C! Cl ti·• • • 0 .: 0 0 ~ ,., RESPONDENT JUDGJYIE1'T9: KYANDO, J, The appellant in· this case is appealing from his conviction for robbery with violence under SSo 285 and 1:' 286 of tlle enal Code foll~wing ".Jhich he was sentenced to imprisonment for thirty (30) yearse The facts grounding his convi :~ion in the case are that. •n .2i/1Q/89, at around 1~ o :~m a.m. Ibrahim Mwinjuma (P.Vi°.3),· the.·cornplai:nant, while walking at Mnazi Mmoja, he;e i·n the City of Dar es Salaam, was robbed of a pistol by people none of whom he could identify. In c~urt during the trial he. -~wned to being unsure about whether or not the appellant was cne of the robbers. The r"bbers,. after taking the pistolt sped'away •in a·oar·w~ .:&egiatra$,ion numbers 'the complainant did not note ei~her. He {the complainant) then went ilo make reports t~ the. police about t the incident. . After,. a passage of time the poli,,e received info-rmati,0n that the app.e.llant nad weapons w:_,;re he:: lived Dar ~\;1ai.a,. es Salaam. On 30/11/9(' D 896 D~Cc Koka (P.Wol).L.Msimbazi Police Station, Dar ..es Salaam, with four other policemen, went to arre$t him. P ~ W., 2. ·testified as follows on how they arrested tha appella:r,lt:- "On 3~/11/9(. a,t 7 ~co p~mo I was at work when ~- . '. > .lI was ··called by the ·oc s ~ ASP Kimaro' who . ordered me to get 4 policemen to make a fo ft,llow up ,:m the tip that the accused (appell- ant) was in ille 6 a::. possession· of ·?.rm~u ~ . . We then left to IJ~::t7 . a. ~\,\~_---t::·"""'P, "'A'e . AT'S t010 follow up on·the tip that ths accused (appellant) was in illegat possession af a~ms~ we then left to Ilala, where we~were told that the accused was at Shaurimoyo and Lindi at house No, 99, where we found the accu1ed at the bac~ yard hut an9- saw through j;he windo:w loading a :cevol ver. · •" We. invaded the hut and ar:r,e~t the accused wit?, a revolver and one bulleto The revolver was black iri colour and had ro. 505136 This is the revolver. I produce it in court.n The pistol was tende~ed hv P-~-1 ~nd marked as Exh.P.1~ · In his.defence the appellant testified on oath but called no witnesses on his behalf, He told the Court below in his defence that he lived at Lindi/Shaurimo:yo Streets at the relevant time and that he' worked as~ driver of his relative, one ~~mri Hamisio He said on 23/11/90 he came t'o Dar es Salaam, fro:rr. E.orogwe to inform his, brother abo~t their mother's sickness .. He said his brother, Samueli Hamisi; left and went to Korogwe as ~ result, leaving_ the . appellant behind, "taking care of his roomo 11 He we1;1t . on to state that on 29/11/90 e.t. around 7 030 ·p .. m. he went for dinner,. on his way back home ht :.1...,_.... .1.--:. .... J.i.;::;es from behind 1 He went back tb see what was happening. He said as he was near the reataurant he was ordered to sto~ and asked about the ·_people who run away from the' restaurant. He said the pe6J?le who stopped him wer2 holding a bag contain- ing a pistol, They whisMed him, he told the court bel•~, away to Msimbazi Policeo He said he remained lo~ked up there up to 8/12/91 when he was taken to court to answer a charge 0f possessing a firearm unlawfully. He said·on 9/~/91 a new.charge of robbery with violence was also read to him. • He denied roobing ~he complainant of the pistol (Exh. P,l)~ He deniea. also, L·.nc~2r cros~ examination.,. being with any weapon when he was a:,:rested,, In convicting the appellant the trial mag"istrate first . considered the point whether or n.::t the. appellant· was· found with the pistol (Exh.Pel)o The learned magistrate be.li'eved • P.W.l and held that the~appellant was truly arreste~ while in possession cf the pistole He then pr(.,ceede<i to:, c~ider whether his p•ss-essi~n of the uistol 7.i.nked him ( the appellant) ·,. ,.... - .,. . 3 This also he answered in the affirmative and then enter~d the conviction which now tte appellant impuguso I am satisfied myself i after exaJn~_ning the evidence carefully that the finding that the appellant was found :I • witn the pistol cannot be successfully challenged .. The ' .·\ ' learne,_d magistr0te was justified therefore . ..,. in reaching the conclusion he reached and in r~jecting the defence of the appellant on this pointo Did the p(')ssession link the appellant -to ,the robbery on 23/10/89? Miss Pendaeli learned State Attorney) f,~r th:e Republic, did not think it so did wheri 2~rguing -the appeal bef.~re me. She had \wo grounds for this -view: - first she said, the P9~plainant was not sure, as shown already, that the appellant was one of the robber's. Secendly, she said that considering the long time lap·se -, frem the date of ,the robbery to the dat-e when the J?iSt.~l was rec~vered from the appellant the doctrine ~f recent\ p•ssessi~n does not arise of apply here~ Clearly, ,?f" course, though he did n'.' t say s-o., in convicting the appellant on the basis of his having been in possession ef a stolen pistol the learned magistrate was relying on the doctrine of recent possessiono In the case of YlARWA Bin SIONGO v. REX 1 TLR (R) 201, at 202, Hearne, J.- stated the law on the subject of recent possession, which I respectifully agree with, thus:- :_, "The law on the subject of recent p~seBaion is this: rr a person is in possession of st~len prope~ty I~en_t.._:U,,: after stealing; it lies on him to accoun·t f•r his possession and if he fails t, account for it satisfactprily he is reasonably presumed ta have come by _it dis. ,. , honestly, It depends on the surrounc:t'ing circumstances whether he is guilty ~f receiving er stealing. Ji_a_p_§.EL..ri.Lt.llil!L. J?.;t'.9.E.:f'MslJ-.Yel..:y •· weakens_..i_he J2_resrnti9n and j). n . A.l.U.~ :1-.:t.. When possession is not recent no presumption of guilt arises from the mere fact of p,sse,ssion, '; for at this stage it might reasonably be inferred that the prisoner had come hQpestly by the property. lLd.\3.Qi~cling ..i:O.~-~qY...e. ~~tJ.9JJ....:Q.f~W.P-et.Jl2:...J2.Q.§_~es§ion in ~fill:Lr..§..J.a:ti v~~1P_i!lEL.§..t e.§1-Jng_,__r.~.1'-d tnus t be ].)jtd .iQ_~hE?_~Qha~aQ.t E;_:r_ .§....nd _Y..?J- ue...Q.[_:tlrn....12...r:..o.Rert~,._11 (My underlining)o In the present case, vff°::y unf or tuna tely, the learned trial magistrate did not add:~ess himself to the question whether the possession of the pistol ·by the appellant relative to the robbery was recent or not. He did ·not direct his mind to this question at allr. He only based him- self on·the mere fact of the possmssion by the appellant of. the pis.tol •. With respect this was not enough., . . The robbery took place en 23/10/890 The pistol of which the complainant was robbed wes. found in the possession of the appellant on 30/11/90" 'lhis was well after a year after st 1 it was L 9 ~2rrom the complainant I! In these circumstances•, even though a pistol cannot be considered to be sucha fast moving item,the doctrine of recent possession does not arise~ in my view 0 It had lapsed by the time the pistol was found in the possession of the appellant o As there was no at.her I evidence upon which a &onviC'.tion for robbery wi +.h violence could have stuck, I agree with Miss Pendael that the convicti~n of the appellant in this case was bad in law. I allow therefore the appellant's appeal, quash his conviction and I set aside the sentence of thirty (30) years imposed on him. I direct that he be released from jail immediately unless he is held there for another lawful cause. DAR ES SALAAM 29/10/93 ,, For the Republic - M i s s ~ , ·Sta.1;8 .Attorney Fer the Appellant - .Kb.:lent, ~tified. Court: Judgment delivered. •