20181114 TZHC Mwanza

. . IN THE HIGH C~~~RT Of TANZANIA . . \ IN TH~~,RICT Rl:~ISTRY . / .• ATMWANZA HIGH.COURT CRIMINAL APPEAL NO. 350 Of 2017 (Original Criminal Case No. 04 0(2016 qf the District Court of Musoma at Musoma.) ! SAMWEL MAGAIWA @ SI BORA ................................ APPELLANT _/· VERSUS .// JUDGMENT ----- 10/09 & 14/11/2018 RUMANYIKA, J.: Appeal is against the 06/08/2017 conviction and custodial sentence of 30 years and 24 strokes of the cane (1 st count) 3. years in jail (2 nd - count); and order for a Shs. 1,·000,000/= compensation to the victim (PW2). For charges of armed robbery and found in possession of property suspectedly stolen· Contrary to Sections 287A and 312 (1)'(b) of the Penal Code Cap. 16 R.E. 2002. Just a ·point at this stage to be made out clearly only Samwel Magaigwa @ Sibora (the 1st) preferred the appeal. Others are no part of it. The 5 grounds of appeal revolve around points, and may boil ~own to four (4): 1 1. the appellant was not ·properly identified. ( 2. the doctrine of recent_ posse$sion was improperly invoked. 3. · offence of armed robbery was not proved_ beyond reasonable doubts. - 4. PWl and PW2 so materially contradicted each other that the prosecution case was shaken. The appellant appeared in person Ms. Gisela Alex learned. state attorney appeared for the respondent Republic. - Ms. Gisela Alex learned state attorney· sort of general1y submitted that given evidence of PWl supported by PW9 (whereby the appellant was immediately found in possession 9f the stolen items; the doctrine of - common -intention and recent possession therefore were both pr9perly invoked provide: (a) the property was found in possession. _(b) the property had been stolen recently and; (c) ( case of James Kisabo @ Mirango & Another Vs. Rep., Criminal Appeal No. 261 of 2006 (CA} (unreported). Much as the appellant was not identified really. But addit!onally confessed to the charges. The best witness ever is the accused who confesses ( case of Msafiri and 2 Others Vs. Rep., Criminal Appeal No. 187 of 2006 (CA) at MZ (unreported). 2 That as for the no of culprits spotted by PW1 and PW2 whethe_r 3 or. 2 respectively, the learned state attorney submitted that the contradiction ( never went ·to roots of their·case. It is a nutshell evident; PW1 A/Inspector Richard Siyame stated that he was, together with DC. Paschal (PW9) the motor vehicle make Toyota Hiace, he suspected the appellant and fellows. One search, he recovered some items which turned ·. out to be the stolen property (as appellant gave no sufficient account). Copy of certificate of seizure and goods (Exhibits "Pl"- and "P2") respectively. PW2 Bruno Dominic stated as was in bed he was in the material night at 03:00hrs invaded by 3 bandits who had torches but again switched on electric lamps. That one had a piece of iron bar and panga. That they assaulted and robbed him Shs. 47,000/= and assortment of items (per - charge sheet). Some of which he identified at Musoma Police Station on 18/12/2015. · PW3 - PW6 only recorded cautioned statements of the appellant - 5th · accused respectively. PW6 also drew a sketch map of the scene of crime (Exhibit "P7~') led by ~w2· (victim). PW7 Dr. George Otieno of Bweri Health centre stated that ~s was on duty therefore in ordinary course of business on 17/12/2015, he attended PW2 ( copy of the material PF3 - .Exhibit "P9"). 3 PVV8 VVP 7070 DC. Sarah stated that with ,regard to the incident she ·only interviewed the. 4th accused -on 16/12/2015 ( cautioned ·statement ExhiQit "P9''). PW9 F. 7837 DC. Paschal only stated that at the time appellant and fellows were arrested he was together with PWl at Komoramba road toll (purely_ a replica of PWl.) That he was only arrested at Kirume Bridge on safari from Sirari - Mwanza by Zakaria-bus service. Copy of a ticket (Exhibit "Dl 1' ) . That he had been facing another charge i.e. Criminal Case No. 5 of 2016 and was not out on bail. Such that could not have committed another · office. The_ central issue is no longer whether the appellant was at the scene properly identified. Much· as PW2 identified no culprits and the trial senior-· district magistrate properly in my considered view so ruled: The issue is whether the doctrjne of recent possession was properly invoked. The answer is in answered in the negative. Reasons are; One; ·the complainant (PW2) may have had been invaded and robbed· such assortment of items yes! But he did not satisfactorily identify _the items. Identification of properly by· complainant be by way of colour, special marks, and where applicable _be way of serial numbers. Not by plain statements/allegations as PW2 only did. In other words one of the crucial criteria name by the stolen property belonging to the complainant was not met by PW2. (See the case of James Kisabo (supra)). Suffices the point to dispose of the appeal. After it was not his evidence the complainant had reported the incident before it to neighbours/passerby before the appellant 4 '• ' was arrested let ag 9in there was another but more serious .irregularity appellant convicted · offences namely armed robbery and being in ( possession of properly suspected to have been stolen· simultaneously. Infact cognate offences as were, should not have had co-existed. It is always one or the other or if at all never. Having said all I .will, as hereby do quash the conviction and set aside senten_ce and orders. Appeal is allowed. Unless was held legally further but for other cases, the appellant be released forthwith from· prison. The property forfeited to the Republic. Much as the appeUant claimed no title. Ordered accordingly. Right of appe_al explained. I s~ JU GIE 24/10/2018 5 Date: 14/11/2018 ( Coram: Hpn. M.A. Moyo, DR Appellant: .Present Respondent: Absent B/C: Elizabeth Court: Judgment delivered this 14th day of November, 2018 in presence of the appellant and in absence of the respondent. M.A. Movo· DEPUTY REGISTRAR 14/11/2018 Court: Right of appeal properly explained. lt~o) M.A. ~OYO , DEPUTY REGISTRAR 14/11/2018 6