20080418 TZCA Arusha

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: KAJI,J. A., KILEO, J. A. And KIMARO, J.A.) CRIMINAL APPEAL NO 173 OF 2005 JUMA SWALEHE JU1I1A PIIALL'Y'A ....................................APPELL.ANTS VERSUS THE REPUBLIC ..... ... .... . . ....... .. ......... . . • ..RESPOIIDEN1 1 (Appeal from the Judgment of the High Court of Tanzania at Arusha) (Mussa, J) dated 20th day of July, 2005 in HC Criminal ADDeal No 44 of 2002 JUDGMENT OF THE COURT 15 th & 23rd April 2008 KAJI,J.A. Juma Swalehe and Juma Mallya, who are the first and second appellants respectively, were jointly charged with and convicted of the offence of armed robbery contrary to sections 285 and 286 of the Penal Code Cap. 16, in the District Court of Babati in Criminal Case No. 79 of 2002. They were each sentenced to 30 years imprisonment and 12 strokes. They were aggrieved: Their first appeal, was dismissed by the High Court (Mussa, J) for want of merits. The facts of the case as reflected in the record are simple. There was a communication tower at Sangaiwe village owned by TTCL Company. It used to be guarded by watchmen. On 27.3.2002, around midnight, while three watchmen namely, Emmanuel Peter (PW1), Abubakar Quani (PW3) and George Michael (PW4) were on guard, they were invaded by a group Of about 8 bandits who were armed with a firearm, machetes and clubs. The bandits brutally assaulted them and tied their hands and legs. They stole communication systems which included eleven (11) solar panels and solar batteries. The bandits were strangers and so PW1, 3 and 4 could not identify any. On the following day the appellants were found in possession of 11 solar panels and other gudgets at Vilima Vitatu village which Amilien Mushi, a TTCL official, identified to be those stolen from the 1TCL tower at Sangaiwe. The appellants were arrested and charged as above. 2 - In their defence the appellants denied to have been involved in the offence charged. They denied even to have been found in possession of the 11 solar panels or any. They were convicted and sentenced as above. They unsuccessfully appealed to the first appellate court which held that the doctrine of recent possession was properly applied. Still dissatisfied they preferred this second appeal. Before us they appeared in person, and the respondent Republic was represented by Mr. Henry Kitambwa, learned State Attorney. Their main complaint is that they were not found in possession of any property alleged to have been stolen in the course of the armed robbery and that the 11 solar panels and other gudgets tendered in 2 court as exhibits were not found in their possession. On his part Mr. Kitambwa contended that there was ample evidence by Inspector Athuman Mhina (PW5) and No. E.7726 D/C Joseph (PW7) that the appellants were found in possession of the 11 solar panels and other gudgets at Vilima Vitatu while boarding a bus. The 3 learned State Attorney pointed out that since they were found in possession of the same hardly a day after the armed robbery and could not give a satisfactory explanation as to how they had come by the same, they were deemed to have been involved in the offence charged. On our part we think there is nothing to detain us much in deciding the appeal. There was ample evidence by the three watchmen, PW1, PW3 and PW4 that they were invaded by bandits who cut them with pangas and stole 11 solar panels and solar batteries. There was ample evidence by PW5 and PW7 that on the following day the appellants were found in possession of 11 solar panels and other gudgets at Vilima Vitatu boarding a bus. PW2, a TTCL official, confirmed the same to be the property of TTCL Company which were stolen in the course of the armed robbery at Sangaiwe 1TCL Tower the previous night. The appellants did not give any reasonable explanation as to how they had come by the same. In fact in their defence they did not give any explanation at all, leave alone a reasonable one, as to how they had come by the same. They merely denied to have been found in possession of the ru same. A mere denial in the presence of such overwhelming evidence is of no help1 There was no way for the appellants to escape the ambit of the doctrine of recent possession. They were deemed to have been involved in the offence charged and were properly convicted. Lastly, there is a complaint by the appellants that Alex Loinyalewa (PW6) was not listed as one of the prosecution witnesses at the preliminary hearing, and that his evidence should be disregarded. The learned State Attorney readily conceded the allegation but was quick to point out that even if his evidence is discarded, the other evidence by the other witnesses was sufficient to ground conviction. We have carefully considered this complaint. Indeed PW6 was not listed among the witnesses the prosecution had intended to call. However, going through the judgment of the trial court, it is evident that the appellants were not convicted on the strength of the evidence of PW6 alone but rather on the totality of the evidence of all 7 witnesses. The evidence of PW6, the driver of the bus which the 5 appellants boarded with their loot, was more or less a repetition of what PW5 and PW7 had testified. TherefOre even if his evidence is discarded, the evidence of PW5 and PW7 sufficiently proved that the appellants were found in possession of the solar panels in issue. Since the appellants were found in possession of property stolen in the course of armed robbery hardly a day after the robbery and could not give a reasonable explanation or any at all as to how they had come by the same, they were rightly convicted in terms of the doctrine of recent possession. This Court has held similar view in numerous cases of this nature such as the case of Twaha Elias Mwandungu v R. Criminal Appeal no. 80 of 1995 (unreported). The sentence imposed is the minimum. It is for the foregoing reasons that we have found nothing to fault the concurrent findings of fact by the two courts below. In the event, and for the reasons stated, we dismiss the appeal in its entirety. n. DATED at ARUSHA this 18th day of April, 2008. S. N. KA.JI JUSTICE OF APPEAL E. A. KILEO JUSTICE OF APPEAL N. P. KIMARO JUSTICE OF APPEAL I certify that this is a true copy of the original. (/ - C H \o ' )1 (F. L. K. WAMBALI) SWIOR DEPUTY REGIST 7