20120330 TZCA Iringa2

IN THE COURT OF APPEAL OF TANZANIA AT IRINGA (CORAM: MBAROUK, J.A., MASSATI, J.A., And ORIYO, J.A.) CRIMINAL APPEAL NO. 228 OF 2010. JOSEPH S/O MBELWA ........................................... APPELLANT. VERSUS THE REPUBLIC .......... I •• I •••••••••••••••••••••••••••••••••••••• RES PON DENT {Appeal from the decision of the High Court of Tanzania at Iringa) {Uzia, J.) dated 23 rd day of August, 2010 in {DC) Criminal Appeal No. 10 of 2009. JUDGMENT OF THE COURT 2ih & 30th March, 2012. MASSATI, J.A.: Just about an hour before. midnight of the 18th June, 2004 the complainant, MAXIMUS s/o MFIKWA (PW1) was leisurely walking home in Kihesa, Mafifi, a suburb of Iringa Municipality. Before he entered his residence, he was ambushed by two youths who were waiting to spring to action. They stabbed him -1- with a sword on the head and hand, and hit him with an iron bar on his legs. He was then robbed of a cell phone, (make Siemens), a wrist watch, a pair of shoes and cash Tshs.15,000/=, all total valued at shs.85,000/=. His cries of agony brought forth some neighbours, who escorted him to his parents, and later to the police station. There, a PF3 was issued for him to get treatment. He later tendered that PF3 as Exh.P.A. On 22/6/2004, PW1 was called to the police station where he was required to identify some goods seized by the police.· Among those things were 3 cell phones, make SIEMENS. He identified one of them to be his because at some place he had to press it with super glue. He also said he had a receipt for its purchase. The. cell phone was produced in court as Exhibit PB. Investigators believed that PW1 had sufficiently identified the appellant a.nd that he was also found with the complainant's cell phone. So, the appellant was charged with the offence of -2- robbery with violence, contrary to sections 285 and 286 of the Penal Code, Cap.16 R.E.2002. At the trial, apart from PWl, three other witnesses testified._ PW2 and PW3, were the neighbours who came to the rescue of PW1, and took him to the police station and eventually to the hospital and back home. Both were consistent that although PW1 had described and identified to them, who robbed him and what he was robbed of and even said that the scene of c:rime was lit by a "light", and that PW1 had told them that the robbers also had a torch with them, which helped him identify one of the .assailants, they, themselves did not identify any of those attackers. PW4 D/Cpl. Onesmo, recorded the appellant's cautioned statement, and produced it in evidence as Exh.P.C. In his defence, the appellant told the trial court that he was a meat roaster, at a club called Semteme. On 20/6/2004 at 8:30p.m.; while he was serving his customers, police came in and rounded him up; taken to the police station and locked up. -3- On 22/6/2004, he was tortured and forced to sign a statement Exh.PC, and next day he was charged with the present offence. He denied having ever robbed the victim (PWl) or being recognized by him in any identification parade, or being found in possession of any of the stolen articles. He categorically denied making the cautioned statement. The trial court convicted the appellant as charged, and sentenced him to 20 years imprisonment. The first appellate court discounted the cautioned statement Exh.PC, and also he_ld that the appellant was not properly identified. However,, it found that the prosecution witnesses were witnesses of truth and .so credible and went on to find that on being searched the appellant was found with the victim's cell phone, Exhibit P.B. In his analysis, the learned judge on first appeal said at p.20:- "Upon the whole evidence, I am of the considered opinion that the trial court took a view entirely permissible on the available evidence of PW1, PW2, and PW4 and Exhibit "B: in holding the appellant's guilty as charged on the standard of proof required in a criminal -4- charge established by the prosecution beyond · reasonable doubt, because the appellant was searched and among other properties found in his possession was a Siemens mobile phone which was fully identified by the victim of robbery'~ On the basis of this re-evaluation of the evidence and finding, the High Court dismissed the appellant's appeal. The appellant has now come to this Court to protest his innocence. In this Court, the appellant appeared in person, and presented 8 grounds of appeal. They could, however, all be condensed into one single ground of appeal, which is, that the prosecution case was not proved beyond reasonable doubt. Spread throughout his grounds, the appellant's complaints were, that, first, he was improperly identified; two, that the cell phone (exhibit PB) was not properly identified as that of _the appellant; three, there were contradictions between prosecution witnesses as to the date the offence was committed; four, the cautioned statement (Exh.P.C) was improperly obtained and relied upon; five, that it was wrong to find that the appellant -5- was found in possession of the victim's cell phone; six, that the appellant was not given opportunity to object to the admissibility of the prosecution exhibits, seven, that the defence case was not considered; and lastly, that no identification parade was conducted. He therefore urged us to allow the appeal. Mr. Maurice Mwamwenda, learned Senior State Attorney, appeared for the respondent/Republic. He did not support the conviction. He had one reason. Since, the High Court had discarded the evidence of identification and the cautioned statement but confirmed the conviction on the ground of recent possession, the finding of the first appellate court was not justified both in law and fact. First, he said that PWl was first called to the police station to identify the cell phone. This was not right. He referred us to the decision of PATRICK JEREMIA v R, Criminal Appeal No. 34 of 2006 (unreported) and. the case of NASSORO MOHAMED v R, (1967) HCD on No.446, cited herein. Second, the receipt for the said cell phone was not produced in evidence. Third, there was no evidence that the -6- cell phone was found in possession of the appellant, as demanded by the dictates of section 38 of the Criminal Procedure Act (Cap. 20 R.E.2002). Therefore, the doctrine of recent possession was not properly invoked. He cited the decision of this Court in ALLY BAKARI & PILI BAKARI v R, (1992) TLR.10 - on how the doctrine could be invoked. He therefore prayed that the appeal be allowed. There is no doubt that the conviction of the appellant w~s based on his cautioned statement, the visual identification by PW1, and the recent possession of PW1's cell phone, make Siemens. We agree with the first appellate court that the evidence of visual identification was problematic and the cautioned statement was not properly received, and so, in our view, properly excluded. So, the only remaining evidence on record is the alleged. possession of the cell phone by the appellant. The attendant issue is whether the doctrine of recent possession was properly invoked. -7- 0 For a proper application of the doctrine of recent possession, it must be conclusively proved that; first, that the property was found with the accused; second, that property is positively the property of the complainant; third, that the property was recently stolen from the complainant, fourth, the property must relate to the one in the charge sheet, and that in order to prove possession there must be acceptable evidence as to search of the suspect, and recovery of the allegedly stolen property from him; and any discredited evidence on the same cannot suffice, no matter from how many witnesses. (See ALHAJ AYUB @ MSUMARI AND OTHERS v R, Criminal Appeal No.136 of 2009 (unreported), HAMIS MEURE v R, (1993) TLR.213, ALLY BAKARI AND PILI BAKARI v R, (supra). From the available records, the appellant was linked with "possession" of the cell phone by PW 1. After receiving information that some stolen goods were at the police station, he (PW1) went to the police station and was aided to identify his -8- • cell phone from any three that were there. He identified it by his own special marks. But asked by the appellant how he was connecting him with the cell phone, this witness said: ''I had found my Siemens at police station and was told had been seized in ''your" possession'~ In re-examination, PW1 confirmed that the cell phone was seized by_ police officers in the absence of the complainant. PW2 and PW3 did not testify about this piece of evidence. PW4 D/Cpl. Onesmo, who according to PW1, was the one who called him to identify the cell phone did not say anything about the search, seizure, or the appellant being found in possession of the ' cell phone. His evidence was simply to show that he took the appellant's cautioned statement in which he confessed to the commission of the offence. So, unless, the first_ appellate court was still referring to the contents of the discredited cautioned statement (Exh.P.C) the finding that the appellant was "found in possession of the mobile -9- phone" is based on nothing but the hearsay evidence from PWl. The finding has no legal and factual basis. This is sufficient to dispose of the appeal. Since there is absolutely no evidence to prove that the appellant was found in possession of PW1's cell phone, the doctrine of recent possession cannot apply. The conviction of the appellant was therefore against the weight of the evidence. We therefore allow the appeal. We quash the conviction and set aside the sentence. We order that he is to be set free forthwith unless otherwise lawfully held. DATED at IRINGA this 30th day of March, 2012. M.S.MBAROUK JUSTICE OF APPEAL · S. A. MASSATI JUSTICE OF APPEAL K. K. 0RIYO JUSTICE OF APPEAL - 10 - . I certify that this is a true copy of the Original. ----J=l:::;s:-(lr - 11-