20120301 TZCA Mwanza

IN THE COURT OF APPEAL OF TANZANIA ATMWANZA (CORAM: MSOFFE, J.A., BWANA, l.A And MJASIRI l.A.) CRIMINAL APPEAL NO. 447 OF 2007 ~: ~~~;E~~~~q .......................................................... APPELLANTS VERSUS THE REPUBLIC ...................................................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Biharamulo) (Mchome, l.) dated the 6th day of November, 2007 in Criminal Sessions Case No. 4 of 1999 .............•.•• JUDGEMENT 10F THE COURT 29 February & 2 March, 2012 BWANA J.A.: The appellants herein were charged with and convicted of the offence of murder contrary to section 196 of the Penal Code, Cap 16. They_ were said to have murdered one Buhabi Patrice, who was the husband of the second appellant. Upon conviction, the appellants were sentenced by the High Court to the mandatory sentence of death by hanging. Aggrieved by the decision of the said High Court, they preferred this appeal. 1 It was the prosecution case that on 30th day of April 1997 there was a party hosted by Buhabi Patrice at his residence. Many people attended. After the party the. deceased pro·ceeded to have a drink at a nearby Trading Centre. The deceased had two wives. The second appellant was his second wife. Upon his return home, apparently intoxicated, the deceased went to his second wife's house. Later that night, he was murdered. He was cut to death six times, using an axe. It was later claimed by the second appellant in her cautioned statement, that ban.dits had invaded her house and killed her husband. She managed to identify the first appellant as one of those bandits. Those bandits also stole selected items from the house, items that belonged to the deceased. They included a radio cassette, blankets, "sufurias," bucket of water, cups and clothes. We must be quick to note here that those items are common items in people's homes and everyday lives and in the absence of specific, positive identification, the doctrine of recent possession may not apply. We will revert to that point shortly. After further querries by the local. vigilante group, the "sungusungu," 2 " the second appellant disclosed that the first appellant participated in the killing and that the stolen items were hidden at his premises. A search ensued and the alleged stolen items were indeed recovered at first appellant's premises. Subsequently both appellants were arrested and charged with the offence of murder. Both appellants denied to have committed the offence. The first appellant claimed that it was the second appellant who brought the said items to his house and asked him to keep them for her as she was travelling the next day with her husband, the deceased. He was later to learn about the death of Buhabi Patrice. On her part, the second appellant claimed before the trial court that on the fateful night, bandits attacked them at around 11.00 pm. She was blind folded and her husband was brutally murdered. She raised an alarm and called both her brother in law as well as the mother in law, who both lived at the same homestead. She was arrested and later gave a cautioned statement to the police. In that statement, the second appellant exonerated herself but she implicated the first appellant. 3 As rightly stated by the trial court, the evidence against the first appellant consisted of the following three features. First, was the allegations in the cautioned statement which implicated him as being one of the bandits who killed the second appellant's husband. Second, was the recovery of items at his premises, items that were said to have been stolen from the deceased's house, the previous night. Third, was the sketch map of the scene of crime which in essence showed that although the second appellant shared the same compound with her mother in law; Masele Patrice, her brother in law, PW1, the stolen items were to be found at the home of the first appellant, half a kilometre (1/2 km) away from the said compound - something which raised suspicion as to why, if the first appellant's version is to be believed, did the second appellant decide to keep those items so far away at a house of the first appellant described as a distant relative, leaving houses on the same compound and of closer relatives, including the deceased's first wife. In so far as the evidence against the second appellant is concerned, there was First, the cautioned statement wherein she admitted that she was the one who sent the deceased's items to the home of first appellant. 4 Second, that she reported the death of her husband remarkably much later, if it is to be believed, as stated in the record. The bandits are said to have attacked and killed her husband at around 11.00 pm but then that she reported the matter at around 2.00 am that night. That long lapse of three (3) hours is unaccounted forr in the circumstance of this case. It should further be noted that both the cautioned statement, the postmortem examination report and the sketch map were tendered in court during the preliminary hearing without objection. We have considered this case in its totality and came to the following observations which substantially form the basis of our decision. 1. That the prosecution case was built upon the defence case/evidence. 2. The application of the doctrine of recent possession in this case. Before us both appellants were represented by Mr. Wilbald Butambala, learned counsel, while Mr. Athuman Matuma, learned State Attorney, appeared for the respondent Republic. 5 I In so far as the first issue is concerned, it is evident that the prosecution's case depended mainly on the second appellant's evidence as obtained from the cautioned statement. In convicting the appellants, the trial judge, inter alia, did rely on the provisions of section 33 of the Evidence Act. We are, however, of the considered view that the said section 33 is inapplicable in the instant case. We will show why we hold so. Section 33 states- s. 33 (1) "When two or more persons are being tried Jointly for the same offence.... and a confession of the offence or offences charged made by one of those persons affecting himself and some other of those persons is proved, the court may take that confession into consideration against that other person'fEmphasis provided). In order for section 33 (1) to apply as stated above, the maker of the statement must firstly implicate himself/herself in the commission of the offence and then proceed to implicate that other co-accused. In the 6 instant case, the maker of the cautioned statement, the second appellant, did not implicate herself. Instead, she exonerated herself at the same time implicating the first appellant. Accordingly section 33 (1) does not apply. As noted by the trial judge, the only evidence that linked the first appellant with the offence was that as taken from the cautioned statement. However, section 33 (2) of the Evidence Act further states that such evidence cannot be used to ground a conviction. It states- "S.33 (2)- Notwithstanding subsection (1), a conviction of an accused person shall not be based solely on a confession by a co-accused" (Emphasis provided). Therefore, second appellant's confession could not be used to ground a conviction against the first appellant. The only other link that could implicate the first appellant was the invocation of the doctrine of recent possession, that following the murder of the deceased at his house, a number of items stolen in the process from 7 the said house were recovered at the first appellants' premises the following day. However, for the doctrine of recent possession to apply the following elements must exist. 1. That there should be a nexus between the property stolen and the person found in possession of the said property. 2. That in the absence of cogent explanation showing how he came about to possess such property, the person may be taken to have been either the actual thief or a guilty receiver. (See R v Bakari Abdallah (1949) 16 EACA 84 .., 3. That the stolen property in possession of the accused must have a reference to the charge laid down against him. 4. That there must be positive identification of the said property as being the property truly stolen from the victim, that is, the property possessed by the accused is the one that was stolen during the commission of the offence with which he is charged. (See Patrick Jeremiah v Republic, (CAT) Criminal No. 34 of 2006, (unreported). 8 Applying the foregoing, it is apparent that the doctrine of recent possession does not apply in the instant case due to the fact that the said items recovered at first appellant's premises were not sufficiently and positively identified as being those that were stolen or belonged to the deceased. We note with concern that during the trial none of the prosecution witnesses positively identified the items. This was in our considered view, fatal to the prosecution case particularly if we are to note that the items allegedly stolen were of common and general type or use. Items such as "sufuria", bucket of water, cups and radio cassette belong to that category of items. The evidence of both PW1 and PW2 did not in our view, positively identify those items either. General identification, like the one by PW1 that the radio cassette was a Panasonic type is not sufficient. In brief, therefore, the doctrine of recent possession is inapplicable in the circumstances of this case as there was no sufficient, positive identification of the stolen property, linking them to the ownership or possession of the deceased. The doctrine could not therefore, be invoked herein to ground a conviction. Having taken into consideration the effects of section 33 of the Evidence Act and the inapplicability of the doctrine of 9 . recent possession in the circumstances of this case, there was no other prosecution evidence which could be relied upon to ground convictions of both appellants. What is apparent is that whatever evidence was leveled against the appellants was based on mere suspicion but it is trite law that suspicion however strong, cannot form a basis for conviction. In the circumstances and all the foregoing considered, we allow the appeal, quash the conviction for murder and set aside the sentence. The appellants are to be set free unless they are otherwise lawfully held. DATED at MWANZA this 1st day of March, 2012 J. H. MSOFFE JUSTICE OF APPEAL S. J. BWANA JUSTICE OF APPEAL S. MJASIRI JUSTICE OF APPEAL I certify that this is a true copy of the original. <::: j) ;s'' t/ J. S. Mgetta DEPUTY REGISTRAR COURT OF APPEAL 10 l