20111027 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA AT DODOMA : (EXTENDED JURISDICTIO) PRM. CRIMINAL APPEAL NO. 24 OF 2011 (DC) CRIMINAL APPEAL NO. 21 OF 2011 ORIGINAL CRIMINAL CASE NO. 57 OF 2009 OF THE DISTRICT COURT OF KONDOA DISTRICT AT KONDOA HIMIDI HAMAD1 SAID HASSANI _J . .. APPELI..ANTS (Original Accused) VERSUS THE REPUBLIC .................. .................... .............. RESPONDENT (Original Prosecutor) JUDGMENT 30/8/2011 & 27/10/201 R.I. RUTA —PRM. EXT. J. The appellants, HAMID HAMAD and SAID HASSANI were produced before Kondoa District court (Criminal case No. 57/2009) arraigned for Burglary c/s 294 1 of the Penal Code. Cap. 16 and, stealing c/s 265 of the Penal Code Cap. 16 Vol. 1 R.E. 2002. The allegation was tHat on 15 May 2009 at about 22. ..30hrs at Mnarani street in Kondoa the said appellants broken ,entered and stolen various properties including one Radio Cassette make Sonny and DVD deck, cash money and mattress; the properties of Khadija Kanyinyi. At the end of the full trial the appellants found themselves behind the bars serving term of 10 years in jail. Aggrieved by the decision they preferred the instant appeal. Jointly lodged, the grounds of appeal . The two appeared when the matter came for hearing. They banked on the grounds of appeal and had nothing to add. The republic respondent was fully represented by Mr. Nchimbi, learned state attorney. The state attorney was not ready to support the decision of the trial court. In his submission Mr. Nchimbi emerged with two points in order to support his stance. On the first point he argued that the doctrine of recent possession was not properly applied . That for the doctrine to apply the prosecution must prove that the property alleged to have been stolen belong to the complainant, and that those property were stolen the very date of incident. 2 9 He cited the case of Ally Bakari and Pili Bakari Vs. R. (1992) TLR. 10 (CA) That it was said that the stolen property must have reference to the charge laid against the accused. Also the case of Nassoro Mohamed V.R. (1967) HCD 9.446. That it was said that for the proper application of the doctrine of recent possession to apply the proper procedure is for the complainant to identify properly the properties alleged to have been stolen. And in so doing the claimant should describe the items before it is shown to him or her so that it can be clear to the court when the item is eventually tendered to see whether or not he/she was able to identify it. He submitted that in the instant case Khadija Kanyinyi, PW1, had to describe the properties before could see them in court and describe the special marks. That PW1 did not describe any special mark which could separate them from other property. That those items are common and can be possessed by any one. After having heard the submissions and my careful perusal to the proceedings and the copy of judgment of the trial court I agree with Mr. Nchimbi that the properties found in possession of the 1st appellant were not properly identified. It is true that the said items are common at our local markets. They can be possessed by any person. The trial court should have considered the possibility of honest mistaken identity where no distinct feature was described. (See: Fadhil Mohamed Vs. R. (1974) LRT No. 5. The second reason advanced by Mr. Nchimbi, was that the 2d appellant was 1st joined to the charge following the statement of the appellant which was made 3 Li V before D/Cpl said, PW3 . That PW3 testified that the ist appellant upon interrogation said to have committed the offence together with the 2nd appellant. That the said statement was not recorded as required under section 57 or 58 of Cap. 20. R.E 2002. That the oral testimony of PW5 can not be admitted. He went on that even though theist appellant could have mentioned the 2ndappellant that evidence needed to be corroborated. That the evidence of PW3 left much to be desired. I agree with Mr. Nchimbi that PW3 was obliged to write down the statement made by the 15t appellant. Since that was not done the evidence by PW3 remains assessed as weak. For the said reasons the appeal is allowed. The conviction is quashed and the sentence set aside. The two appellants each one be released forthwith. R.I. RUTTAL ' PRM. EXT. 3URISDICTION 27/10/2011 Delivered in the presence of appellants and Ms. Haonga State Attorney for the Respondent. Right of appeal explained. 4 Lfl C (I) c1 (') ce - I .. Lu (i .4