CRIMINAL APPEAL NO 536 B OF 2020 MWITA MAGORI MOMANI AND ANOTHER VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT MUSQMA CRIMINAL APPEAL NO. 536 B OF 2020 fCORAM: LILA. J.A., KENTE, J.A.. And MGONYA. J.A.) MWITA MAGORI MOMANI.................................................. 1st APPELLANT NYAMAHONGE JOSEPH CHACHA MAGORI.......................... 2nd APPELLANT VERSUS THE REPUBLIC ............................................................. . RESPONDENT (Appeal from the Judgment of High Court of the Tanzania, at Musoma) (Galeba, J.) dated the 15th day of October, 2020 in Criminal Session No. 49 of 2020 JUDGMENT OF THE COURT 12th July, & 30th October, 2024 LILA.: In an incident causing death of spouses Mgosi Chacha @ Marwa and Mtongori Mwita @ Marwa, nine heads of cattle were stolen. The appellants were allegedly arrested while in possession of the said heads of cattle. Suspicious of their involvement in the murder of the spouses, the appellants were arrested and arraigned to answer the charge comprising two counts. In the 1st count, they were charged with the murder of Mgosi Chacha @ Marwa and, in the 2nd count, the murder of Mtongori Mwita @ Marwa. Trial ensued upon the appellants' denial of the charge and they were, at the end, convicted of both counts and a death sentence passed against each of them. Aggrieved by the decision, they have appealed to this Court. According to the charge levelled against the appellants, the spouses were murdered on 29/5/2011 at Itununu Village within Serengeti District in Mara Region and on the verge of establishing the appellants' responsibility, only three witnesses featured for the prosecution namely Chacha Marwa Werema (PW1), Johanes Chacha Bunyike (PW2) and Chacha Nyageko (PW3). According to PW1, who was then Chairman of Manyata Hamlet, after being informed by one Tereti Wankuru on 29/5/2011 at around 09:00 that Mtongori Mwita Marwa had been killed at his residence, he went to the deceaseds' house and found his body lying with cut wounds on the back, neck, face and arm. His wife and heads of cattle were not there. This prompted PW1 and Tereti Wankuru to raise alarm so as to call other people who would assist in tracing the whereabouts of deceased's wife one Mgosi Chacha Marwa and heads of cattle. After a brief search, the wife's body was found about thirty (30) paces from that of the husband. Chacha Nyageko (PW3), who was among the persons who responded to the alarm, revealed that Mr. Mtongori (the deceased) had nine (9) heads of cattle in his kraal. So as to ensure those who took away the heads of 2 cattle are arrested, PW1 relayed information of the incident to village chairmen of nearby villages including Itinde Mgosi of Ru'gabure Village, Mwita Nyamhanga of Gesari Village and Johaness Chacha (PW2) of Kitunguruma Village. A serious manhunt was mounted and they went up to Machochwe area where they slept. Come the next day (30/5/2011) at 08:00 am, PW2 called and informed the search team that they have arrested two youths with nine (9) heads of cattle at Kitunguruma. PW1 and others went there where they found heads of cattle but the two youths were already taken to the police station. They drove the heads of cattle to Mugumu Police station where those arrested with them were produced and PW1 identified one of them as being Mwita Magori (the 1st appellant) who lived at Manyata Hamlet and he was told that the other person is called Nyamalonge (2nd appellant). Chacha Nyageko (PW3) who was part of the search team, identified the cattle as belonging to the deceased by telling the marks which he had not disclosed before mounting the search and the heads of cattle were given to him at the police station. PW1 also said he saw one Momani (2nd appellant) with blood stains but did not know of which animal. On his part, PW2 confirmed that he was informed by PW1 of the killing incident on 29/5/2011 and he informed other people of his area. On 30/5/2011 at 11:00 am, he was informed that there were heads of 3 cattle crossing Nyamakendo River towards a primary school. That, while together with Paulo Chacha Munyige and Paulo Matiko Ryoba, they went to Nyamakengo river where they met two people who had a sword with blood on the handle and had nine (9) heads of cattle who said they were coming from Masangura and were going back to Masangura. As to why blood stains, the two persons told him that there was a tired cow which they had to slaughter it and gave some meat to Gethari Village. Upon further interrogation, they said they had stolen the cattle from Kiagata Musoma Rural District and promised to give him two cows so that he could release them. He then tricked them to enter to his room and locked them in. He later informed the Village Chairman one Mwita Chacha Makuru who informed the OCD of Mugumu Police station who went there and took the two suspects who were recognized as the appellants to police. The cattle were left at PW2's residence and later were taken to the police station where he signed a handing over document of the heads of cattle to Chacha Nyegeko (PW3) as a relative of the deceased. PW3 had a similar story to that of PW1 but went further to say that he was related to the deceased man and frequently visited his place hence he knew that in the house only the spouses stayed therein and that he had nine heads of cattle with some marks. That, on 28/5/2011, he visited the deceased for an advice as he wanted to sell one cow and he noted that there were nine heads of cattle with marks CMKV, CMK, SS and two had no any mark. Regarding how the heads of cattle were disposed at the police station, he said he was given the heads of cattle after signing a certain document prepared by police (exhibit PE3) and he later gave them to owners, one Boniface took five (5) and Chacha Nsogo took two heads of cattle and he remained with two heads of cattle which belonged to the deceased spouses. That, one head of cattle was slaughtered during the funeral ceremony remaining with only one head of cattle at his home. Apart from the 1st appellant testifying in defence as DW1 and the 2nd appellant as DW3, the 1st appellant called, as his witness, his father one Mwiregi Rahel Mwita (DW2). Both DW1 and DW3 refuted PW2's evidence that he arrested them while in possession of heads of cattle. Instead, DW1 said, they were involving themselves with illegal hunting using trap wires and, on the material date, they succeeded to catch a wild beast and went to PW2's place with meat as he used to find buyers for them. He said he had known PW2 since 2008. That, to their surprise, on such date instead of looking for customers, PW2 called police who arrested them on accusation of killing the spouses. DW2 supported his son's (DW1) evidence stating that he was about to be arrested on accusation of murder that faced DW1 and said DW1 had no criminal records but he used to go to the jungle for hunting animals and take meat home. The learned trial Judge read the summing up notes to the gentlemen assessors. One of them dissented opining that the appellants are not guilty. The remaining two assessors were of a unanimous opinion that the two appellants were responsible and returned a verdict of guilty. The [earned trial judge drew two issues to guide him in determining the case. These are: - "1. Whether the persons who were intercepted by Johanes Chacha Bunyige at Kinguruma Village driving the stolen cattle away from Itununu were the two accused persons. 2. I f the 1st issue will be answered in the affirmative, whether by doctrine o f recent possession, the two accused persons murdered the deceased coupie," In its comprehensive examination of the appellants' defence evidences, the trial judge was of the finding that they constituted of a defence of aiibi and, citing the provisions of section 194(4)(5)(6) of the Criminal Procedure Act (the CPA), he was of a finding that they improperly raised it for not indicating their reliance on it at the earliest opportunity by lodging the requisite notice or supplying both the trial court and the prosecution with detailed particulars before closure of the prosecution 6 case. He further, referring to the Court's decision in Sijali Juma Kocho vs Republic, [1994] TLR 206, held that it lacked evidential value because the appellants failed to prove it on the balance of probability. Having so discounted the appellants' defence, the trial court considered and found PW2 to be a reliable witness and relied on his evidence that he arrested the appellants in possession of the stolen heads of cattle to positively find the first issue. Regarding the second issue, alive of the doctrine of recent possession, the trial court reviewed the evidence so as to determine whether it applied in the circumstances of this case. It was finally satisfied that PW3, who was handed over the nine heads of cattle at Mugumu Police station and signed exhibit PE3, frequently visited the deceaseds' house, knew well and positively identified seven (7) heads of cattle out of the nine (9) heads of cattle found in the appellants' possession and that he knew their owners by special marks which heads of cattle were, at the material time, under the care of the deceased and two heads of cattle which belonged to the deceased spouses but went missing after the spouses were killed. The trial court, too, accepted as good reason that it was difficult to produce the remaining one head of cattle to the High Court in Musoma as it was at Serengeti, after one head of cattle was slaughtered on the fateful date. With such evidence, it was satisfied that the nine heads of cattle belonged to the deceased spouses. Relying on PW3's testimony, it found that the stealing was recent having been done on 29/5/2011 and finding of stolen heads of cattle happened on 30/5/2011, hence establishing all the necessary elements for invocation of the doctrine of recent possession. And, as the stealing was preceded by killings of the deceased spouses, the doctrine of recent possession was applied to find the appellants to have been responsible with the killing of the spouses. Having resolved that the appellants were responsible with the death of the deceased spouses, the trial court went further to consider whether the killing was intentional and, considering the factors for determining malice aforethought pronounced in the case of Enock Kipala vs Republic, Criminal Appeal No. 150 of 1994 (unreported), relying on the evidence by PW1 and PW3 that they found the deceased bodies with cut wounds and the Post-mortem Examination Report (exhibit PEI) revealed that the death of the deceased spouses was due to excessive loss of blood, the trial court arrived at a conclusion that the killings were with malice aforethought and convicted the appellants with murder as they were charged and it sentenced them to the statutorily prescribed mandator/ sentence of death. In protesting their innocence, the appellants have appealed to this Court and have, in their joint memorandum of appeal, preferred ten (10) grounds of complaints. However, upon their serious scrutiny, Mr. Leonard Elias Magwayega and Mr. John Kuboja Manyama, both learned advocates, who were assigned dock briefs to represent the 1st and 2nd appellants, respectively, joined forces and intimated to the Court that the ten (10) complaints boil down to only two grounds that: - "1. The High Court erred in law and fact to convict and sentence the appellants to death while the prosecution failed completely to prove its case. 2. The High Court erred in law and in fact to convict and sentence the appellants to death by relying on the doctrine of recent possession while the prosecution to establish it as per the requirement o f the law." For the republic Respondent, was Mr. Tawabu Yahaya Issa who was assisted by Mr. Isihaka Ibrahim Mohamed, both learned State Attorneys. Mr. Issa resisted the appeal on behalf of the respondent. Mr. Magwayega opted to launch his first onslaught to the High Court decision by addressing the Court on ground two (2) of appeal. His main argument was that the doctrine of recent possession was wrongly applied in the circumstances of this case to convict the appellants. Justifying his position, he advanced two reasons; one, according to the PW2, the appellants were locked in the room by PW2 and the police were informed who went to PW2's house and formally arrested the appellants. In view of this evidence, it was Mr. Magwayega's firm stance that the police went to PW2's house aware of the appellant's being held by PW2 and ought to have had carried with them a seizure certificate in terms of section 138 of the CPA in which the seized heads of cattle would be listed and signed by PW2 and the appellants which they did not. He insisted that PW2 who said he was with another person did not arrest the appellant but just locked them in the room. As this was not done, the issue that the appellants were found in possession of the nine (9) heads of cattle does not arise citing the case of Director of Public Prosecutions vs Orestus Mbawala @ Bonge (Criminal Appeal No. 119 of 2019) [2020] TZCA1728 (18 August, 2020) TANZLII to support his position that, no real possession was established of the stolen cattle which is an essential element for the doctrine of recent possession to apply. Mr. Magwayega's second point was that there was no positive proof by the prosecution that the nine (9) heads of cattle belonged to and were positively identified to belong to the deceased spauses, another crucial element for the doctrine to apply. He was of the view that the prosecution evidence was doubtful. Explaining further, he said, PW3 was unreliable 10 because he contradicted himself as to who owned the heads of cattle because he first said they belonged to the deceased spouses but later stated that only two belonged to the deceased spouses and the rest belonged to one Boniface Chacha and Chacha Nsongo, He pressed the Court to find that it was doubtful that the heads of cattle belonged to the deceased spouses. Worse still, Mr. Magwayega argued, Boniface Chacha and Chacha Nsongo, for no reasons, did not testify to prove that they owned some of the heads of cattle stolen from the deceased spouses' residence after the killing, and identify them by the marks stated by PW3. Being crucial witnesses, he stressed, the two persons ought to have been summoned by the prosecution and failure to call them dented the prosecution case supporting his stance by the Court's decision in Aziz Abdallah vs R [1991] TLR 91 and urged the Court to draw an adverse inference against the prosecution evidence that had they been summoned they would have given evidence unfavourable to the prosecution. Notwithstanding the above alleged weaknesses in the prosecution, in ground two (2) of appeal, Mr. Magwayega sought, in ground one (1) of appeal, to show how the prosecution failed to prove the charge against the appellants. He was emphatic that there was no direct evidence linking the appellants with the killing of the spouses as there was no eyewitness li to the incident and the circumstantial evidence relied on by the prosecution did not point at the appellants as the responsible ones. Attacking the testimony of PW2 that the appellants had a sword and clothes with blood stains which suggested that the blood belonged to the deceased spouses' blood whose deaths was a result of cut wounds, Mr. Magwayega submitted that it was not ascertained through forensic profiling that the blood, if any, was of a human being and, more particularly, of the deceased spouses. In his further attack, Mr. Magwayega argued that the procedure adopted by the police in disposing the heads of cattle taken to the police station was irregular as they were handed over to PW3 after signing exhibit PE3 in the absence of the appellant who were right there in the police custody. Related to the above is non-involvement of the trial court in dealing with the recovered heads of cattle, the point of complaint here being that they were not produced in court for the court to satisfy itself as to the alleged special marks on them for the court to satisfy itself as to who owned them as PW3 alleged in his testimony hence allow opportunity to the appellants to cross-examine the witnesses. Reliance on Post-mortem Examinations of the deceased spouses (exhibit PEI) by the trial court to convict the appellants did not pass unchallenged by Mr. Magwayega arguing that the appellants were not accorded an opportunity to cross-examine the author, that is the doctor who examined the deceased spouses' bodies arguing that the infraction occasioned injustice to the appellants. Adding to Mr. Magwayega's arguments, Mr. Manyarrta submitted PW2's evidence is doubtful as he said he was with another person but that other person did not testify. He pleaded for the Court to believe the appellants' story on how they were arrested and particularly that the appellants'defence evidence that they were arrested having in possession of government trophies which was not addressed by the trial court. In resisting the appeal for the respondent Republic, was Mr. Issa who took a different view to that of his learned brother Mr. Magwayega. He agreed with the learned judge in the manner he applied the doctrine of recent possession to convict the appellants with murder. In respect of proving that the heads of cattle belonged to the deceased spouses, he was of the view that PW3 explained that the heads of cattle which were in the appellant's kraal belonged to the deceased and others belonged to Boniface Chacha and Chacha Nsongo. He said, as at the time of the killings were under the deceased persons' care, they were under his constructive 13 possession. He argued further that the heads of cattle were recovered just a day after theft hence it was recent and, given their nature, could not have changed hands within such short period. These two ingredients being proved, warranted invocation of the doctrine of recent possession. Mr. Issa could not be moved by Mr. Magwayega to agree that the charge was not proved beyond doubt. Relying on the testimony by PW2, he insisted that there was no doubt that the appellants were found in possession of heads of cattle stolen after a killing incident hence, by invocation of the doctrine of recent possession, the appellants were properly convicted of murder citing the case of Nuru Venance and Two Others vs Republic, Criminal Appeal No. 431 of 2021 in which the Court cited with approval the case of Although Mr. Issa admitted that there was no eye-witness to the killing incident, he argued that it is not necessary otherwise, many killers would go unpunished supporting his argument with the Court's decision in Mathias Bundala vs Republic, Criminal Appeal No. 62 of 2004 (unreported). He similarly argued that forensic test Report is not a legal requirement thereby refuting Mr. Magwayega's position that it was necessary to confirm if the blood stains allegedly seen in the appellants' clothes and sword were of a human being and of the deceased spouses. Addressing the complaint that the recovered heads of cattle were irregularly disposed by handing them to PW3 in the appellants' absence, Mr. Issa argued that no prejudice was occasioned to the appellants as they, in defence, disassociated themselves with the recovered heads of cattle and did not cross-examine the prosecution witnesses on that regard bolstering his assertion with the Court's decision in Saidi Bakari vs Republic, (Criminal Appeal No. 295 of 2021) [2022]] TZCA 125 (21 March 2022) (TanzLii). According to Mr. Issa the explanation by PW3 over how the heads of cattle were handled in particular that they were given to owners at the police station was sufficient and the trial court was right to rely on handover document (exhibit PE) written by police. Regarding reliance on post-mortem report (PEI) without calling the Doctor, Mr. Issa submitted that it was admitted in evidence without an objection from the appellants' side and without a request to call the Doctor by the appellants. He added that neither were the prosecution witnesses cross-examined which meant that the appellants accepted that the deceased spouses died of cut wounds caused by sharp objects. He cited the case of John Madata vs Republic, (Criminal appeal No. 453 of 2017) [2020] TZCA 154 (2 April 2020) (TanzLii) that matters not raised during the witness testimony by way of cross-examination but raised during defence evidence are afterthought. In the end he prayed the appeal be dismissed. There were no rejoinder arguments by both Mr. Magwayega and Mr. Manyama. We have carefully gone through the evidence by both sides and arguments by the learned brains representing the parties in this appeal. From them, it clearly appears that there is no controversy to the facts that there was no eye-witness to the killing incident of the spouses and that the appellants were held under restraint by PW2 before the police went to collect and take them to police station. The prosecution relied on the evidence by PW2 that the appellants arrested the appellants while they were driving nine (9) heads of cattle stolen from the spouses' kraal just a day after the killings of the spouses to, circumstantially, link the appellants with the killings, the evidence the learned trial judge, too, relied on and applied the doctrine of recent possession to convict the appellants with the murder of the spouses. Conversely, the appellants refuted the evidence by PW2 stating that they were arrested having an unskinned wild beast meat they had illegally caught using trapping wires in the Grumet forest which they had taken to PW2 who used to assist them to find customers. In view if these divergent versions, the crucial issue demanding the Court's consideration is whether or not, the appellants 16 were found in possession of the stolen cattle so that the doctrine of recent possession would apply. For, if found that it does not apply, the prosecution case against the appellants would crumble. Before providing an answer to the issue, we wish to state right here that the learned trial Judge rightly appraised himself of the import of the doctrine of recent possession citing the case of Mustafa Darajani vs Republic (supra) which reiterated the position set in the often cited case of Mkubwa Mwakagenda v. Republic, Criminal Appeal No. 94 of 2007 (unreported), in which the Court observed that there are four factors that must cumulatively be established for the proper application of the principle of recent possession that: - "For the doctrine of recent possession to apply as a basis o f a conviction, it must be proved, first, that the property was found with the suspect, second, the property is positively proved to be the property o f the complainant, third, that the property was recently stolen from the complainant and lastly, that the stolen thing constitutes the subject o f the charge against the accused,..." [Emphasis added] Certainly, and clearly, upon our thorough examination of the trial court proceedings, judgment of the trial court, the two grounds of appeal and the respective arguments by the parties' learned counsel before us, 17 it appears that the appellants' liability with the offence of murder revolved around the application of the doctrine of recent possession. The learned counsel for the parties parted ways on this aspect, the appellants denying being found in possession of the nine heads of cattle and the prosecution pressing that the prosecution evidence candidly proved so. To resolve the controversy, the Court is therefore invited to reconsider the evidence and answer the question as to whether the appellants were found in possession of the nine heads of cattle recently stolen from the deceased spouses after the killings which is one of the essential elements which must be proved for the invocation of the doctrine of recent possession. Stated otherwise, the appellants' liability depends on the answer to this crucial issue. Unfortunately, in the instant case, after the trial judge had treated the appellants' defence evidence as amounting to an alibi and after holding that it was improperly raised for want of notice or supplying the prosecution with its particulars, he did not go further to consider the second limb of the appellants' defence evidence that they were not found in possession of the stolen heads of cattle but with wild beast meat. This vividly appears at page 132 of the record where the learned trial judge stated that: - "The 1st ingredient was proved and by answering the 1st issue in the affirmative, this court effectively meant that the accused persons were 18 arrested with the stolen cattle at Kitunguruma Village/' It is common knowledge that the defence of alibi relates to a denial by an accused that he was not at the crime scene when the offence charged was committed. In the present case and as repeatedly indicated, the appellants admitted being arrested by PW2 while with wildebeest meat, not with the alleged nine heads of cattle. We are therefore justified to observe that the two defences are different and each of them ought to have been considered and determined separately. However, the omission can be remedied by the Court as we are alive of the salutary principle of law that a first appeal is in the form of a rehearing hence it has the duty to re-evaluate and subject the entire evidence on record to a critical scrutiny and if justified, arrive at its own conclusions of fact. (See: D. R. Pandya vs Republic [1957] EA 336). Of course, it is a cardinal principle in criminal law that it is the prosecution which is duty bound to prove that the appellants were arrested while in possession of the stolen heads of cattle. In our endeavour to address the above issue, we find it apposite to recapitulate the evidence by the prosecution, PW2 who claimed to have had arrested the appellants with stolen cattle which were identified by PW3 by certain marks to have been the cattle kept by the deceased spouses but some of belonged to other persons, namely Boniface Chacha and Chacha Nsongo to whom they were later handed over. Of the remaining two heads of cattle belonging to the spouses out, one was slaughtered for use during the funeral ceremony. It cannot be disputed that the nine heads of cattle were a subject of the case faced by the appellants, hence a potential exhibit. They were the sole and crucial evidence relied on by the prosecution to establish the link between the killings of the deceased spouses and the appellants' involvement. Aware of this, the same were taken to the police station. But, surprisingly, they were, as per exhibit PE3, handed to PW3 who later gave them to Boniface Chacha and Chacha Nsongo their respective number of cattle. Actually, what was done at the police station was disposal of the heads of cattle before they were produced in court and conclusion of the appellants' trial and without a court order. And, to show that the heads of cattle were intended to be produced in court, a handover was reduced into writing and produced in court. To us, tendering exhibit PE3, was an indication that the prosecution intended to produce in court, as evidence, the heads of cattle. The procedure was of disposal was, however, flawed for these reasons: - First, the heads of cattle were not perishables properties which could be disposed of without undue delay. The law is clear on how to 20 handle such materials. Even if perishable, section 353(2) of the CPA, in clear terms provides that the court may order disposal on certain terms whether perishable or not at any time during the proceedings and order the proceeds thereof be held to await finalization of the trial or appearance of the owner. The provision provides: - "Where anything which has been tendered or is intended to be tendered or put in evidence in any criminaiproceedings before any court is subject to speedy and naturai decay the court may, at any stage of the proceedings or at any time after the disposal o f such proceedings, order that it be sold or otherwise disposed o f but shall hold the proceeds o f the sale and, if unclaimed at the expiration o f a period o f twelve months after the final disposal o f such proceedings or any appeal entered in respect thereof, shall pay such proceeds into the generai revenues o f the Republic:"(emphasis added) For other properties, like heads of cattle in this case, which are not of a perishable nature and which were intended to be produced in court as evidence, the provisions of section 353(3) apply. It provides: - "Notwithstanding the provisions of subsection (1), the court may, if it satisfied that it would be just and equitable to so do, order that anything tendered, or put or intended to be put in evidence in criminal proceedings before it should be returned at any stage of the proceedings or at time after the final disposal o f such proceedings to the person who appears to be entitled thereto, subject to such conditions as the court may see fit to impose." (Emphasis added) As it will be noted, the above cited provisions apply when already there are proceedings going on court, that is, when an accused is already arraigned in court, hence inapplicable in our situation because the disposal was made before the trial of the appellants [see Mohamed Juma @ Mpakama vs Republic, Criminal Appeal No. 385 of 2017 (unreported)]. But, in a situation where the appellant is yet to be arraigned and the prosecution is still conducting investigation, the police has an obligation to take care of the intended exhibits from the time of recovery to the time of production in court. This is in terms of Paragraph 2(a) of the Police General Orders (PGO) NO. 229 (INVESTIGATION - EXHIBITS) which provides that: - "2. (a) The police are responsible for each exhibit from the time it comes into the possession of the police, until such time as it is admitted by the Court in evidence, or returned to its owner, or otherwise disposed o f according to instructions." This provision is intended to ensure that exhibits which are essential in establishing the guilt of accused are properly preserved and are not interfered with in any way so as to affect their substantial character, This is insisted in paragraph 3 of the PGO NO. 229 which provides that: - "3. Exhibits are vitai evidence, their preservation or loss wiii depend upon the manner in which they are handled and examined. The Police Officer first at the scene o f a crime or incident in an urban area or near a Police Station shall ensure that exhibits are not touched and that the scene is kept intact untii the investigating officer arrives," In a situation where the exhibit is an animal, as is the case herein, the police have a specified manner of handling seized or recovered animals as stipulated under Paragraph 23 of PGO NO. 229 that; - 23. Animals, where possible, will be retained by their owners, provided full particulars such as colour, marking, brand marks, etc., have been recorded and, if practicable, photographs taken. Before returning an animai to the owner, an undertaking, in writing, will be obtained from him by the investigating officer, that they will produce the animal when called upon to do so. I f animals are retained in police custody they will be placed in the Government pound. When an animal is 23 suffering from an injury or disease; the Magistrate wiii be asked to give instructions regarding its disposal. As it will be noted at once, the undertaking has to be made by the owner of the animals and the undertaking, under these provisions, is for the purpose of temporarily holding the animals before they are produced in court as evidence. A document containing an undertaking is not intended to restore the animals to the owner permanently and the owner is not thereby permitted to dispose them in any way. In the instant case, it appears, the police sought to comply with the requirement to handover to the owner of the animals by PW3 making an undertaking in writing as reflected in exhibit PE3. But, PW3 himself did state, in his evidence, that he owned the animals. He was explicitly clear that the nine heads of cattle were, at the material time, under the care of the deceased spouses who owned only two heads of cattle and the rest were entrusted to them by Boniface Chacha and Chacha Nsongo. In the circumstances, the principle of constructive possession applied as we lucidly explained it in the case of Moses Charles Deo vs Republic [1987] T.L.R 134, where the Court stated that: "... for a person to be found to have had possession; actuai or constructive, o f goods it must be proven either that he was aware o f their 24 presence and that he exercised some control over them, or that the goods came, albeit in his absence, at his invitation and arrangement" In view of this legal position, it is the deceased spouses who owned the two heads of cattle and constructively owned the seven heads of cattle not PW3. That said, it was the deceased spouses who, in law, had the right, in terms of paragraph 23 of PGO No. 229 to be handed over the heads of cattle. It was therefore an error for the police to handover the animals (nine heads of cattle) to PW3. And this anomaly, renders Exhibit PE to be of no evidential value. As the spouses died, legal steps to have an administrator appointed, ought to have been taken whom the heads of cattle could be handed over in lieu of the deceased spouses. Exhibit PE3 is hereby accordingly, disregarded. Consequently, it cannot be said that the heads of cattle were positively identified by the owner (complainant). We would, before concluding, add that PW3 wrongly disposed of the heads of cattle and as they were not of a perishable nature they could be disposed of after the trial, and if there is an appeal, after the appeal in terms of section 353(3) of the CPA. Such none production and disposal of the nine heads of cattle worked injustice to the appellants and created a presumption that had they been available in court the defence could have created doubt in the prosecution case by way of cross-examination of the witnesses in their respect. (See a persuasive decision by the High Court in Theobald Charles Kessy & Vincent Mwaikambo vs Republic, [2000] T. L. R. 186). There could, and this is by the way, be an argument that Boniface Chacha and Chacha Nsongo who were said by PW3 to be owners of some of the heads of cattle could be tasked by police to hold them until trial of the appellants was concluded. The argument would be unfounded because these were unsubstantiated assertions by PW3 which did not find support from Boniface Chacha and Chacha Nsongo because they did not testify to prove their ownership of the said seven heads of cattle by such marks. We think, the two would be required to prove their ownership to the administrator to be appointed so that, depending on the nature of the outcome of the case, their interests in the deceased's estate would be considered. As earlier on pointed out, the heads of cattle, the substance of the appellants' arrest and arraignment in court with the murder of the deceased spouses, were not produced in court as evidence. They were the essence of the learned trial Judge applying the doctrine of recent possession to ground the appellants' conviction. In lieu thereof, exhibit PE3 was tendered in court to prove that the heads of cattle were found 26 with the appellants. Now, expungement of exhibit PE3, the subject matter of the charge, from the record of appeal, definitely, adversely affects the prosecution case against the appellants as there is no basis upon which the doctrine of recent possession would apply against them. It is important to note that the appellants' were linked with the commission of the offence on the allegation that they were found in possession of heads of cattle stolen from the kraal where it was later found that the spouses staying therein were killed. The accusation was founded on possession making it necessary that the thing possessed, in our case, the stolen heads of cattle, be produced in court either itself or an inventory duly recorded by a proper authority verifying or certifying its disposal. Failure by the prosecution to produce the thing possessed or an inventory thereof is, in the circumstances, fatal vitiating a conviction. We held so in the unreported case of Remina Omary Abdul vs Republic, Criminal Appeal No. 189 of 2020. In that case the appellant was charged with two other persons with the offence of Trafficking in Narcotic Drugs contrary to section 15(1) (b) of the Drugs Control and Enforcement Act, No. 5 read together with paragraph 23 of the First Schedule to the Economic and Organized Crime Control Act [Cap 200 R. 2002] as amended by Written Laws (Miscellaneous Amendment) Act No. 3 of 2016. The particulars of the offence alleged that the appellant Remina Omari Abdul, Maemba Jonathan Maemba and Said Mkonde Kitalo, on 29th day of August, 2017 at Kinondoni Ufipa area within Kinondoni District in Dar es Salaam Region, did Traffic in Narcotic Drugs namely heroin Hydrochloride weighing 201.38 grams. During the trial, it was testified that the narcotic substance was contained in envelop A which had two packets weighing 201.31 grams which contained heroin hydrochloride and was tendered and admitted as exhibit P3(a). It was said that exhibit P3(a) was found inside the house during search and was the foundation of the appellant's charge and conviction while others were acquitted. On appeal to the Court, the Court was successfully moved by her counsel that exhibit P3(a) was not listed during committal proceedings as being among the exhibits to be relied on by the prosecution during trial hence it was irregular for it to be admitted in court as an exhibit and the Court expunged it from the record of appeal. The Court then held that: - "Having expunged exhibit P3(a), the subject matter o f the charge, from the record, definitely, no other evidence would be able to ground the appellant's conviction." Without demur, we follow suit and hold that without production of the nine heads of cattle in court and without a positive identification of them by the owners, the doctrine of recent possession could not apply hence the appellants' conviction cannot thereby legally stand. 28 We have scanned the remaining evidence and bearing in mind the position we have taken above, it is a reality that the rest of the evidence, if anything, would only be able to show that the appellants were arrested by PW2 which will not be able to ground the appellant’s conviction of the offence charged. We are fortified in this view for, even the alleged blood stains in the appellants' sword and clothes was not established to be human blood, and, in particular, of the deceased spouses as Mr. Magwayega rightly argued. As a result, the appellants' defence that they were arrested with wildbeest meat which could possibly be the essence of the blood stains, becomes highly probable. Otherwise, the prosecution relied on mere suspicion which, time and again, the Court has maintained that, in law, it cannot ground a conviction. For instance, in the unreported case of Salehe Ally vs Republic, Criminal Appeal No. 20 of 2009, the Court held that: - "In our understanding and appreciation o f the evidence as a whoie, one thing is evident to us. There was very strong suspicion against the appellant. But suspicionhowever grave, is not a basis for a conviction." Given the apparent procedural irregularities in the trial, we fault the learned judge for holding the appellants guilty and convicting them. Under the circumstances, we allow the appeal, quash the convictions and set aside the sentences imposed against the appellants. We order them to be immediately released from prison unless they are lawfully held for other lawful purposes. DATED at DAR ES SALAAM this 17th day of October, 2024. S. A. LILA JUSTICE OF JUSTICE P. M. KENTE JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL The Judgment delivered this 30th day of October 2024 in the presence of Mr. Mwita Magori Momani 1st Appellant, Mr. Nyamahonge Joseph Chacha Magori, 2nd Appellant and Mr. Isihaka Ibrahim Principal State Attorney for the Respondent/Republic, via video link from Musoma High Court is hereby certified as a true copy of the original.