said so juma vs republic 2007 tzhc 194 4 july 2007

IN THE HIGH COURT OF TANZANIA AT TABORA. APPELLATE JURISDICTION (Tabora Registry) (DC) CRIMINAL APPEAL NO. 29 OF 2005 ORIGINAL CRIMINAL CASE NO. 306 OF 2003 OF THE DISTRICT COURT KIGOMA DISTRICT AT KIGOMA. Before: S.N. CHIKOYO.Esa; RESIDENT MAGISTRATE SAID s/o JU M A ................................ APPELLANT (Original Accused) Versus THE REPUBLIC................................ RESPONDENT JUDGMENT 30th May, 07 & 4th July,07 MUJULIZIJ. The Appellant was charged and convicted of the offence of Armed Robbery c/ss 285and 286 of the Penal Code, and sentenced to serve a 30 years jail term. It was alleged that on 19/2/2003 at 8.30 pm in Bangwe area, of Kigoma Town, the Appellant had broken into the house of one Costa Moris and therefrom had stolen several items including one Solar Invertor valued at Tshs. 150,000/=. The total of all stolen items was put at Tshs. l 495,000/= properties of the said Costa Moris. It was alleged further that immediately after such stealing had threatened the complainant with a gun in order to retain the stolen properties. The prosecution called 4 witnesses. The Appellant did not call witnesses. P.W. 1, Costa Moris, the complainant did not identify his assailants. However, as it turned out, several days after the incident the complainant came about one of the stolen items. This was the invertor. He was able to identify it because it had local wires which he had improvised. The invertor was in the jDpssession of ene Jeremiah s/o Meshack, who on being confronted named one Bakari Shabani (PW.2) to have sold it to him. Bakari Shabani in turn admitted to have sold the same to Meshack, but he to named another person to have sold it to him. That person as it turned out is the Appellant, Said Juma. To confirm his story he produced a sale agreement dated 07/03/2003, allegedly written by the Appellant and witnessed by two other people one of them being Manala Shaaban P.W.4. The said sale agreement was admitted in evidence as Exhibit P.2 although the Appellant denied to have made it. The trial Court, later on in its judgment, made a conclusive finding based on the evidence of the caution statement, alleged to have been made by the Appellant, wherein he admits to have sold the exhibit P .l coupled with the similarity of signatures in Exhibit P.2 and Exhibit P.3, that indeed the Appellant had sold Exhibit P .l to PW.2 as witnessed by P.W.4, and therefore proceeded to convict the Appellant. The Appellant filed an 8 grounds petition, appealing against both conviction and*sentence. The grounds can be summed in two; a) That the learned trial Magistrate erred in law and fact in relying on her own summation without calling expert evidence of the handwriting and concluding that the Appellant was the maker of both Exhibit P.2 and P.3 without requiring the Appellant to write for comparative purposes before the Court. b) That the trial Magistrate erred in law by not taking into consideration his defence statement. 3 Although the Appellant had opted not to be present at the hearing of the appeal, he appeared before me and adopted his grounds of Appeal. In addition he argued that he had never seen Exhibit P.2 as he had never seen it and that there was no evidence that he had written it. The Republic on the other hand, was ably represented by Mr. Lukosi learned State Attorney, who supports the conviction. It was submitted before me that the appellant's conviction was based on the doctrine of recent possession. He was found with the stolen property for which he failed to give reasons for being in possession thereof: DPP V. JOACHIM KOMBA (1984) TLR 213; Defines the doctrine of recent possession and how recent is recent. Further: MWITA WAMBURA V.R. (1992) T.L.R. 114, to the effect that if the appellant fails to explain how he came into possession of the property he is deemed to have been liable for the original incident. It was submitted therefore that since in this case the complainant had already reported the theft there was no 4 /'further need to investigate and that therefore the conviction was well founded. In my opinion therefore the issues I have to determine are two; 1. Whether the appellant was found in possession of Exhibit P.l; and, 2. Whether the conviction was properly founded on the doctrine of recent possession. On the first issue, the Appellant raised an issue with the heavy reliance the trial Magistrate had on the effect of Exhibit Exh. P.2, the alleged sale agreement, and on the fact that this piece of evidence was verified to be true upon a comparison of signatures on Exhibit P.2 and P.3. The Appellant challenges the appropriateness and legality of the trial Magistrate making such a finding of fact without calling expert witnesses on handwriting. Unfortunately the learned State Attorney did not address me on this issue. 5 This being the first appeal, this Court is entitled to reevaluate the evidence and establish whether it was correctly admitted. The Appellant in his defence raised the issue of discrepancy in the testimony of P.W.2 and his brother P.W.4 who is the witness named in Exhibit P.3. He has repeated this issue in this appeal. The discrepancy itself is in relation to the place where the transaction was concluded. According to P.W.2, Bakari Shabani the buyer named in Exhibit P.w.3, he had gone to the Appellant's barber shop or 7/3/2003, when the appellant allegedly offered to sell to him a spare called invertor which converts electricity from Direct current (DC) to Alternating current (AC). However that when he asked for the receipt, (to evidence its purchase) the Appellant told him it had been washed in his pair of jeans trousers. He therefore agreed to buy but requested that the transaction be witnessed. Then he proceeded to buy it against a written agreement witnessed by one Ahmad and Manala shabani P.W. 4, his brother. But when he produced the said agreement, in Court, the appellant is recorded to have said. "I do not know it" 6 But the court ruled that; "The Reason so advanced does not suffice to render the entire exhibit not to be received by this Court. It is admitted as exh.P.2." In my opinion the Appellant simply denied to have authored the document sought to be produced. As to whether it was admissible in evidence was a different matter all together. This was an issue of law which the Court ought to have addressed whether or not its existence had been denied by the person alleged to have made it. But what is crucial was the fact, that the prosecution was required to prove that the document was what it claimed to be, was made by the Appellant and on the date stated thereon. In my opinion these are the major points that P.W.4. Manala Shaaban as a witness to the alleged agreement ought to and was called to testify upon. The issue therefore is whether he did so, credibly and beyond reasonable doubts. It his testimony, P.W.4, says; (page 19 typed record) 7 on 3/7/2003 at 17; 00 I was at Bakari garage. For wiring on my vehicle. The complainant in this case (?). The accused appeared. Accused had invator the electricity item. Accused was selling to Bakari. Bakari gave Tshs. 50,000/= gave advance of 40,000/= remaining 10,000/=. There was agreement written. Accused said to be his property. I was a witness of Bakari I went away. We all signed too. The accused had put his finger print. I heard later that the invator was among the stolen items. That is all." Even allowing for poor translation on the part of the trial Magistrate as to what exactly the witness said, I believe judging from the appellant's stance at the trial that indeed even in its direct version P.W.4's testimony created more confusion over the facts alleged to have been testified upon by P.W.2. This testimony is at variance in many particulars. First of all, if we believe his testimony, then it is to the effect that the Appellant took exhibit P.l to P.W.2's work place. But P.W.2 says he is the one who went so the accused's barber shop. 8 Secondly, P.W.4 does not even say anything about the second witness one Amad. Thirdly according to P.W.4, the Appellant put his thumbprint on Exhibit P.2. But the thumbprint on Exhibit P.2 is affixed next to "SHAIDI WANGU AMADI". Lastly, the contents of the agreement are made in past tense, not present. It seems to be made after the event for which it is said to be acknowledging hence "NIRIMUUZIA HEKA......TULIELEWANA..... BAADA YA SIKU TATU AKATOWA SHILINGI ELFU 10,000/= MAMBO YAKAWA YAMEISHA HAKUNA DENI." In my judgment the testimony of P.W.2 and P.W.4 did not prove beyond reasonable doubt that Exh.P.2 was made by the Appellant. That is why the trial Magistrate sought to clear that by comparing signatures, on Exhibit P.3 and P.2. The Appellant challenges that action of the trial Magistrate. I believe he is correct. The doubts created ought to have been resolved in favour of the Appellant. The trial Magistrate overreached when she turned herself into an expert on handwriting. 9 To me, the cheat, Exhibit P.2 could have been written anywhere, by anybody at any point. It would not have been conclusive on what it said to be, by itself. But this apparent defect is cured in this case in the corroboration we find in the Appellant's cautioned statement, Exh. P.3. This is alleged to have been made by the Appellant before. P.W.3 E. 1418 D/Sgt. Joshua on 20/3/2003. This statement was also repudiated by the Appellant. But he has not pushed that issue further on appeal, nor did he put in much effort at trial in denying to have made the statement. In the circumstances of this case I am convinced that the Appellant admitted to have come into possession of an invartor, and to have sold the same to Bakari Shabani P.W.l. But it is no established as to when exactly. Now, the question which follows is whether on the evidence, on record, the Appellant was properly convicted under the doctrine of recent possession. In DPP V.JOACHIM KOMBA (1984) T.L.R. 213, the case cited to me by the learned State Attorney, the respondent was originally charged with burglary contrary to section 294(1) of the Penal Code and stealing contrary to section 265 of the same Code. He had been found in possession of 10 a radio cassette which had been stolen some eight months earlier together with some household goods from the complainant's house which had been burgled. The trial Court acquitted the accused on the charge of burglary but convicted him of stealing and subsequently discharged him conditionally under section 38 (2) of the Penal Code. The republic Appealed. The High court (Msumi,J, as he then was) held interalia that: i) The doctrine of recent possession provides that if a person is found in possession of recently stolen property and gives no explanation depending on the circumstances of the case, the court may legitimately infer that he is a thief, a breaker or a guilty receiver; ii) An inference under the doctrine of recent possession may be drawn to uphold any offence however penal it may be including the offence of murder; Hi) There is no general principle of determining the period of time which is recent enough to 11 justify the application of the doctrine of recent possession. The test therefore is subjective. Each case has to be treated on its own peculiar circumstances. In this case the single item found from the alleged robbery on 19/3/2003, was an invertor which was only identified by the complainant P.W.l after seeing it in the possession of one Meshack. I say alleged, because no effort was put into evidence by the prosecution to prove the fact of the robbery. There was no evidence adduced to show that indeed the complainant had reported the matter, listed the stolen properties and or that the police investigated the matter to confirm the use of a fire arm in the alleged crime. No evidence was lead to prove the break- in either. In other words the prosecution took it for granted that the testimony of P.W.l was conclusive on the matter. The trial Court also took that erroneous position. In my judgment in order to convict a person with an offence on the doctrine of recent possession, the commission of the offence itself must be proved beyond reasonable 12 doubt. The doctrine only helps in putting the possessor at the scene of the proved crime. Further, the inventor itself had already changed hands twice by the time it was found in a space of a very short time. In my judgment, it could have changed hands before it got into the possession of the Appellant. This, to me, points more to receiving suspected stolen property rather than committing the actual stealing. The respondent knew or ought to have known that he came into possession of stolen property. In the circumstances, I quash the conviction on the charged offence of Armed Robbery c/ss 285 and 286 of the Penal Code, and instead I find him guilty of receiving stolen property c/s 311 (1) of the Penal Code (Cap. 16 R.E. 2002). In conclusion this appeal is allowed. The trial Court's findings are quashed and instead appellant is found guilty and convicted of receiving stolen property c/s 311(1) of the Penal Code. The Appellant was arraigned since 03/6/2005 and convicted and sentenced to 30 years imprisonment on 10.01.2005. That sentence is also set aside and replaced 13 with a sentence that would ensure that he is discharged from prison as of today. He should therefore be released. It is so ordered. A.K. MUJULIZI JUDGE 4/7/2007 Judgment delivered in the presence of the learned State Attorney for the Republic. 4/7/2007 14