juma so shigela vs republic 2007 tzhc 259 16 july 2007

IN THE HIGH COURT OF TANZANIA AT TABORA APPELLATE JURISDICTION (Tabora Registrar,) (HC) CRIMINAL APPEAL NO. 48 OF 2004 ORIGINAL CRIMINAL CASE NO. 22 OF 2003 OF THE DISTRICT COURT OF TABOJIA DISTRICT AT TABORA BEFORE A. MAGUTU RESIDENT MAGISTRATE JUMA S/O SHIGELA................................. ...... APPLICANT VERSUS THE REPUBLIC.................................................RESPONDENT 2Td October, 2006, lt f hJuly, *§007. JUDGMENT MWITA, J.: On 24.1.2003 early in the morning Emmanuel Nyanda, a resident of Inala village., Tabora District, discovered that his cattle boma had been broken into and 12 out of 14 of his cattle were missing. He informed his fellow villagers who started tracing his cattle by following hoof marks. When the search party reached Lugila Village, Sikonge District, it was reinforced by sungu sungu members. On 26.1.2003 the stolen cattle were seen in the bush at Lugila Village under the control of four persons. The cattle and the four people were surrounded by the search party. Juma Shigela was arrested. The other three people managed to escape. On being interrogated by the search party, Juma l Shigela confessed to have stolen the cattle and named the 3 persons who were with him. Juma Shigela, Maiko Lukeresha @ Maige and Mathias Mayengo were jointly charged with cattle theft contrary to section 268 and 265 of the penal Code. At the conclusion of the trial only Juma Shigela was convicted as charged and sentenced to 15 years imprisonment. Maiko Lukeresha and Mathias Mayengo were acquitted. Aggrieved by both conviction and sentence, Juma Shigela has appealejd to this Court. Ar the hearing of the appeal the appellant argued the appeal in person. The Republic had the services of Mr. Mrina, learned State Attorney. • Evidence which implicates the appellant is his alleged confession to Sungu sungu and being found in possession of stolen property recently after the theft. I will start by considering the alleged confession. PW1, Emmanuel Nyanda, the complainant, testified to the effect that when the complainant was apprehended he confessed that he had stolen the cattle and named his fellow thieves. The appellant was taken to the sungu sungu Commander, one Mponya where he repeated the story. PW2, Robert Tanganyika, Ibasa Ward Chairman, told the Court that whin Juma Shigela was brought to Inala Village, Ibasa Ward, a meeting comprising about two hundred people was convened. Juma shigela told the meeting that he stole the cattle and was arrested by Sungu sungu while in possession of the stolen cattle. He was with his brother Dili, Ulamela and Kilatu. Section 27 (2) of the Evidence Act (Cap. 6 R.E. 2002) reads: "The onus of proving that any confession made by an accused person was voluntarily made by him shall lie on the prosecution." In his defence the appellant testified to the effect that he was tortured by Sungu sungu to induce him to confess. In REGINA KARANTINI AND ANOTHER V. REPUBLIC, Criminal Appeal No. '10 of 1988 (Mwanza Sub - registry) the Court off\ppeal said. "... the confessions of the appellants were made in the presence of a big group of the village vigilantes (Sungu Sungu). Although they are not policemen according to law, they have more coercive power than ordinary citizens and for that reason the presence of a big crowd of such vigilantes is not conducive to the making of a voluntary and truthful confession by a suspect." In the instant case as the appellant's confession was made in the presence of Sungu Sungu, it is doutiful that it was voluntarily made and truthful. It should not have been acted upon. I now turn to consider the applicability of the doctrine of recent possession.in the instant case. In MARWA BIN SIONGO V.R. (1921 - 1952) I T.L.R. ( R ) 201 AT P. 202 HEARNE, J. sad: "The law on the subject of recent possession is this: I a person is in possession of stolen property recently after the stealing, it lies on him to account for his possession and if he fails to account for it satisfactorily, he is reasonably presumed to to have come by it dishonestly. It depends on the surrounding circumstances whether he is guilty of receiving or stealing. Lapse of time progressively weakens the presumption and finally extinguishes it. When possession is not recent no presumption of guilty arises from the mere fact of possession, for at this stage it might reasonably be inferred that the prisoner had come honestly by the property. In deciding the question of whether possession is recent relative to the stealing, regard must be had to the character and value of the property. In the instant case 12 heads of cattle property of PW1 were stolen on 24.1.2003. Stolen cattle were on 26.1.2003 found in the bush in possession of the appellant. Taking into account the amount of cattle involved and the surrounding circumstances the period of two days is recent. The appellant did not account for his possession of the cattle. The amount of cattle involved, the period that elapsed between the stealing and the appellant being found in possession of the stolen cattle in the bush show that this is a case of stealing, not receiving. Before the doctrine of recent possession is applicable, the prosecution must prove the identity of the goods found in possession of the accused with the goods previously stolen. In ALLY BAKARI & PILI BAKARI V. REPUBLIC (1992) TLR 10 at P. 15 the Court of Appeal said: "Quite clearly, as a matter of law and logic, it is essential for a proper application of the doctrine of recent possession that the stolen thing in the possession of the accused must have a reference to the charge laid against the accused. That is to say that th^ presumption of guilt can only arise where there is cogent proof that the stolen thing possessed by the accused is the one that was stolen during the commission of the offence charged, and, no doubt, it is the prosecution who assumes the burden of such proof, and the fact that the accused does not claim to be the owner of the owner of the property doe not relieve the prosecution of that obligation." In MOHAMED ISUMAIL V. REPUBLIC (1975) n. 31 it was held that where the identification of stolen goods is necessary the prosecution must prove beyond reasonable doubt that the goods found with the accused were those of the complainant. A witness must not only say that he identifies the stolen items but must also say by what means he does so. In the mstant case PW1, the complainant, identified his stolen Rattle by "V" marks on their right legs. For the above reasons I am of the opinion that the doctrine of recent possession was properly applied in the instant case. The appellant's conviction is accordingly upheld. The appellant was a first offender.' The maximum sentence for the offence is 15 years imprisonment. Normally a first offender is not sent snced to the maximum punishment. No reason was given for imposing the maximum sentence. The sentence of 15 years imprisonment is set a side and .3 ser tence of JUDGE. 16th July, 2007 Delivered in the presence of Mr. Mokiwa, State Attorney. 16th July, 2007.