rashidi maridadi vs republic 2013 tzhc 2221 16 august 2013

IN THE HIGH COURT OF TANZANIA AT MTWARA CRIMINAL APPEAL NO. 25 OF 2011 ORIGINAL MASASI DISTRICT COURT CRIMINAL CASE NO 130 OF 2009 RASHIDI MARIDADI........................................APPELLANT VERSUS THE REPUBLIC........................................... RESPONDENT JUDGMENT 24th June 2013 & 16th August. 2013 M. G. Mzuna, J.: Rashidi Maridadi, was convicted for Burglary and Stealing contrary to sections 294 and 265 of the Penal Code Cap •16 R.E. 2002. He was sentenced to twenty and seven years imprisonment respectively. The sentences were ordered to run concurrently. The appellant was appearing as the second accused in the trial court where the charge comprised of 5 accused persons. The prosecution called in four witnesses to prove their case and it was found that the 5th accused person had no case to answer, the 3rd and 4th accused persons were acquitted while 1st and 2nd accused persons were convicted and sentenced as above shown. ................... The first issue is whether there was sufficient evidence connecting the appellant with the offence he was charged with? The argument by the appellant during hearing of this appeal was that he was not identified at the scene of crime and that he failed to know as why he was convicted leaving others who were found with the properties but were acquitted. Mr. Makasi, the learned State Attorney supported this appeal for the reasons which are quite obvious. I will tell. Before I do that let me give a brief summary of the evidence. It was the evidence of PW.l Hamad Mnipeta (PW.l) that it was on 10th July, 2009 at about 2.00 a. m he was asleep. Upon waking up at 4.00 a. m he noticed that the door was broken and some of his properties stolen among them being the T.V and trousers he reported the matter to the police on 11th July, 2009 and one No. E. 6063 D/CPL Gidion (PW.4) was assigned to investigate on the matter. He, on 5th September 2009 received the call from PW.4 requesting him to go to the Police station so as to identify his properties and he did so. He managed to identify the T.V, which was said to have been found with the 3rd accused. He also identified two trousers which were alleged to have been found with the appellant. The same were tendered after he had said "yes these are mine" and that was done without asking the accused to comment before they were tendered. PW.2 Mary Michael was a witness during the search at the house of the 1st accused while PW.3 Karim Abdallah witnessed during the search in the house of the appellant where two trouser were taken from the rope. However he was never shown in court if the said trousers were among the exhibits which were tendered in court. The apellant's defence was that the policemen went to his home at night and took the trousers. The trial Magistrate relied on the evidence of the 3rd accused who said was given the T.V by the 2nd accused at day time as a bond. This issue was however not put to the appellant by the said accused when he testified. The learned State Attorney has attacked the evidence of PW1 which does not show specific marks which show that the properties found in possession by the appellant belongs to him. He said the identification of the properties was only made in court by saying that the said properties are the one which were stolen. He submitted that such evidence was not enough. Further that, S. 166 of the Evidence Act, cap 6 RE 2002 provides that there must be evidence of former statement showing description of the stolen property. He cited the case of Fadhili Mohamed vs. R. 1974 LRT No. 5 where by the court held that, the witness must state the marks on the properties. He also argued that, the court record is silent on what did the appellant say on the said properties before they were tendered in court. Further that the said trousers were not listed during PH and there was no leave asked to add them as among the Exhibits. He said the 3rd accused said the TV was taken to him as a security for loan, and that it was taken there at broad day light, however there was no proof of the said loan so it was a way for the 3rd accused to escape and he managed to do so. He cited the case of Bushiri Amiri vs. R. [1992] T.L.R. 65 which held that the evidence of the co-accused is the same as that of an accomplice. It must be treated with caution and requires corroboration. He submitted that the evidence of 3rd accused had such deficiencies and therefore it was unsafe to use it to convict the appellant. That, the appellant was not seen committing the offence or arrested near the scene of crime but was seen with the said trousers in early August while the offence was committed in early July. He said for a serious offence like this, it was unsafe to base the conviction on this weak evidence. He prayed for this appeal to be allowed. I agree entirely with the submission of the learned State Attorney. PW.l has a generalized evidence when he said that "yes these are mine". In a similar case of Haruna Mohamed and Others Vs. R. Criminal Appeal No.30/2001 CAT (unreported) at Page 13, the court held that: " . . his evidence, it seems to us is generalized in such terms as these items are mine. No specific marks on description were given by PW.10. This we think will not do in a criminal charge." That is an answer even in the case under consideration, it was very important to give specific marks. I would like to draw to the attention of the trial magistrate, the case of Fadhili Mohamed Vs R 1974 L.R.T No.5 cited also by Masanche J, (as he then was) in the case of Machia Mashenene and Another Vs R (DC CR. Appeal No. 13 of 2006, High Court of Tanzania Dodoma Registry), unreported. The following are guiding principles when the issue involves possession of property suspected to have been stolen: "(a) When a person reports a theft to the police, he should be called upon to describe the same fully. This description should include make o f goods, manufacturers number, quantity and any distinguishing features, such as size, colour defects, reparation etc. (b) A person should normally not be asked to identify property suspected to be stolen unless he has first reported on his loss as above; (c) A person identifying goods in court as being his should always be asked how he can distinguish them and his reasons recorded. (d) A court, in considering identification, should consider the truthfulness or otherwise o f the witness and a possibility o f honest mistake (i.e. where no distinct features are present) and should also consider the possibility o f similar articles existing in the locality. (e) An extra ordinary large quantity o f any particular goods or an unusual combination o f articles may, o f course, have evidential value assisting the court to decide whether goods found in possession o f accused are those that were stolen." There are a plethora of authorities on the subject to mention but few are the cases of Bawari s/o Abedi vs R. (1967) HCD No. 11 where Said J. (as he then was) held that; "Exhibition o f pair o f Khanga not distinguishable from other items by special marks or features will not support finding that they are the same as those stolen " Also in Nassoro Mohamed vs R. (1967) HCD No. 446 it was held that; "The proper identification o f property in court is that the compiainant should describe the property before it is shown to him so that when it is eventually tendered and the description confirmed it can be clear to the court that identification was impecable or not" PW1 did not give special mark or features of the trousers and the T.V which were alleged to have been found in possession of the appellant such that it could be said to be his. He just told the trial court that he came to know the properties at the police and that it was his. That was not enough. Equally important, PW1 did not describe the trouser and TV before they were shown to him. That was an error. It was wrong on the part of the Magistrate to shift the burden on the appellant that he never gave the explanation for its possession. The burden of proof does not shift to the accused but remains with the prosecution. He was not seen committing the offence. The whole case was based on circumstantial evidence without any chain that would link him. It was also very unsafe and the Magistrate fell in error to use the evidence of the third accused to convict the appellant while knowing very well that he was an accomplice with his own interest to serve. I am in agreement with Mr. Makasi, the learned State Attorney that the evidence of co-accused is the same as that of an accomplice, so it must be treated with caution and requires corroboration as was held in Bushiri Amiri V.R. [1992] TLR 65. It was not treated with caution and was not corroborated with any other independent evidence. The first issue is therefore answered in the negative that there was no sufficient evidence to connect the appellant with the charged offence. The second and last issue is whether this appeal should be allowed? From the above analysis, having found that the prosecution did not establish the issue of ownership and that the alleged properties were not described to have distinctive marks and that evidence of accomplice alone could not form the basis of the conviction, this appeal should be allowed. The appellant was convicted on the basis of mere suspicion and it has held time without number that suspicion however grave can not form the basis for the conviction. Appeal allowed. Conviction and sentence is set aside. The appellant to be released from the prison forthwith unless legally held. M. G. Mzuna, JUDGE 16/8/2013 Court: Judgment delivered this 16th day of August 2013 in the presence of Mr. Mkude, learned State Attorney and in the presence of the appellant. M. G. Mzuna, JUDGE 16/8/2013