20100215 TZCA Arusha

...... '•-~ .. ,., !'.1) I 1t·~1i •

IN THE COURT OF APPEAL OF TANZANIA

I

AT ARUSHA (CORAM: MUNUO, J.A., i<ILEO, J.A., And MANDIA, J.A.) j\ ' •" . . .,·. ._. ~! f CRIMINAL APP;EAL NO 312 OF 2009 I JAMALI MO HAM ED •••• ■■■■■■■ ••••••••••••••• ■■■■■■■■ ••••••••••••• I ••••••••• APPELLANT

AND I THE REPUBLIC. ■■■■■■■■■■■■■■■■■■■■■■■■■■■ ••••• ■ I ••• I ■■■ I ••••••••••••••••• RES PON DENT (Appeal from the judgment of the High Court L of Tanzania at Arusha) (Sambo, J.) , . ,,- . .I, I I dated the 2611' day pf August 20097 I in Criminal Appeal No 5 of 2009) I ' ' ' 1; (. JUDGMENTOF1HE COURT 14th & 21st February, 2012 KILEO, J.A In the District Court of .· Kiteto; at Kibaya, the appellant Jamal , , J 1.\i:1 l\ . t• ( ' I Mohamed was charged with and convicted of the offence of robbery with ! violence contrary to sections 285, 286 and 287A of the Penal Code. He was ! sentenced to 30 years imprisor:rfuent and in addition he was ordered to ' '' '::!'• t ., /', 1 ·1·;'. I '~ .. •!:,. I' ' -~' 1 return the amount of shs. 370,000/= that wa~ stolen from the complainant. His appeal to the High Court was partly qllowed. His sentence was reduced to 15 years imprisonment and the order for return of shs. I 370,000/= was set aside. Being ~tm aggrieved he has come to this Court. t1ii At the hearing of th,e appeal the appellant appeared in person and was i unrepresented. He filed two grounds of appeal against the decision of the it-:. 111 ·.~i ~; High Court. First, that he was:not,sufficiently identified at the scene of crime and secondly, that both courts ,below erred inI convicting him on contradictory evidence. The facts leading the appellants' conviction are q·uite brief and

are to be found in the testimonies of four prosecution witnesses. The ' . -~ ' complainants, PWl and PW2 were rhlusband and wife respectively and residents of Engusero village in Kiteto Distrct. On the night of the incident, :( at around 2.00 am, they were ipvaded by a group of bandits who made i ►~. ·t .-~C .\ i ' , H' . ·1clj;·., . away with their bag containing shs; 370,000/=. The bandits disappeared '. . i when the couple raised an alarm for_ help. Other villagers including PW3 and PW4 responded to the alarm. The appellant's conviction was based on 2 !.ii:1 .' 1, ::, ~)i the witnesses' testimonies on his identification and possession of the stolen bag. ,;.;j· t ')1 The issues before us are· therefore only two. One, whether the appellant was sufficiently identified at the scene of crime and whether he was found in possession of the bag that was stolen from the complainants -i.e. whether the doctrine of recent possession would apply in this case. Submitting before us the appellant argued that the circumstances pertaining at the time of commis'sion of crime were not favorable to make a positive identification of the appellant. As for possession of the stolen bag I he submitted that in view of thei' :cqntradicting .,. ",. testimonies concerning his 1 · !~•'• ;" ·i:1±:;~ 1 \ ,.'t possession of the bag it was not proper to base his conviction on ,· ·• I ' possession of the

bag. The Republic which was represented by Mr.Zakaria Elisaria learned Senior State Attorney at the hearing of the appeal did not support the appellant's conviction and sentenc::e. The learned Senior State Attorney '_[.{' , H (~: . conceded that the conditions of identification at the scene of crime were not favorable for a positive identification. Referring to a decision of this I I l ! ~ . ~ . Court in Abdi Julius @ Mollel::•:Angther vs Republic -Cr. Appeal No ' ' •..,;( I • i 3 ! I 1007 of 2009 in which the doctrine of recent possession was discussed he I submitted that the circumstances of the case at hand did not meet the criteria for the doctrine of recent possession to apply. I i We respectfully agree withf~both:1~he appellant and the learned Senior I State Attorney that the conditions for identification pertaining at the I material time were not favorable for positive identification. Though PWl . ~ t, I , :< 't · ';1)1i' claimed that there was moonlight on · the night that the crime was I committed, hoY'(ever it is not very clear 'how the moonlight assisted him in ' I identifying the appellant considering that they were irivaded while they I were inside their house. PW2 just mentioned that she knew them as there I was light in the room. She did not specify what kind of light there was in the room. i It has been settled that visual identification evidence· is of the

weakestI character and that before a corniictidn is entered basing on such evidence . ·'! i J_l;: . ri.~/ • .,... I it must be absolutely watertight. The celebrated case o( Waziri Amani vs. R. (1980) T.UR. 250 enumerated factors to be taken: into account by a court in order to satisfy itself on ,whether or not; such evidence is watertight. These factors include: 4 ;,):; •1'· .•,1t· 'the time the witness had the accused under observation; the distance at which he observed him; the conditions in which such observation occ~rrr;d, if it was day or night time; whether ,.1_t i ,1 '.; ~, . . i there was good or poor lighting at the scene; whether the witness knew or had seen the accused before or not ' The necessity for clear evidence which leaves no doubt that the identification is correct and reliable ca'nnot be over emphasized. The High Court judge who heard the first appeal observed as fo;llows in relation to identification: 'Certainly, they were not preparing th~ said "DAKU" in darkness. They did identify them, after which they . f '' ' found refuge to th~; r6of ,Jf his house." : ' . : , · ;q· .. We concur with the learned Senior State Attorney that the above observation was a wrong assumption which the learQed judge was not entitled to make. Suffice it to say that the appellant was not sufficiently i r·! identified at the scene of crime and for this reason we find merit in his

first ground of appeal. The second issue for consideration is whether the doctrine of recent possession can properly apply in' .this case. This Court in Abdi Julius @ ( :t- ,'_. t:. t.1 . , ."¥?- . Mollel & Another vs R. supra discussed Joseph Mkumbwa & Samson 5 Mwakagenda vs. R - Cr. Appeal INo. 94 of 2007: (unreported) which stated the position of the law in regard to the doctrine of recent possession in the following terms: "where a person .Js found in possession of a property recently stolen or unlawfully obtained, he is presumed to have committed the offence connected with the perspn ' . or place wherefrom the property was obtain~r:t. .:For ,:the doctrine to apply as a basis of conviction;· ;t multbe proved, first, that the property was found with the suspect, second that the property is positively proved to be the property of the complainant, third, :that I the property was recently stolen from the complainant, and lastly, that the stolen thing constitutes the subject of the charge against the accused.. The fact that the accused does not claim to be the owner of the property does r,ot rel/eve the prosecution of . :;. '/ . ' ' their obligation to prove the above elements.... " We are of the settled vievv;tthat irr,this case the prosecution failed to , ~~~ : .:''t' :' .·~";:' prove, beyond reasonable doubt . tt,at the appellant was found in possession of the bag that was

stolen from the complainants in the course of the robbery. There were contradictions . between the I evidence of PWl . I and PW3 as to whether the appellant was actually found with the bag or it 6 .. was found behind the toilet in which the appellant was. said to have hidden I himself. PWl said the bag was f9H~P b~pind the toilet whereas PWl stated -~·~.; l . ,, ·,fl,' ~; i that the appellant was found with 'the· bag. We think that this being a . I criminal case jwhere the prosecution had a duty of proving the charge against the accused beyond reasonable doubt the contradictions we have " I shown above ought to have been resolved in favor of the appellant. We accordingly also find merit in the ,second, ground of appeal. ' ' It is in the light of the above considerations that we find merit in the I appeal preferred by Jamal Mohamed. ., In the circumstances we allow the : ' ./..... . .f ~ : • \ appeal. Conviction is quashed artcVsentepce is set asidfr, The appellant is to ": I be released from custody forthwith unless he is held for some other lawful cause. DATED at ARUSHA this 15th Day of Fe~ruary 2010 L. ! E.N.MUNUO ,-,. JUSTICE OF'APPEAL E. A. KILEO

JUSTICE OF APPEAL \Mt<: vv1, . S}'MAI\JDIA . , ...,..• , . JUSTICE Of/APPEAL 7 I' I , "' I certify that this is a true copy of the original. ~w:-rvrRWI~U " , I

DEPUTY REGISTRAR I COURT OF AP.PEAL 1 " s 't \ /( 8