20140730 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA IN THIE DISTRICT REGISTRY .ATMWAMZA HIGIH!-COl!JlRT CRIMINAL APPEAL NO 24 Of 2014 (Arising from Criminal Case No. 144 of 2011 of Magu District Court, at Magu) MATHIAS S/0 SYLIVESTER.~ .......................................APPElLANT versus . . THE RIEPlJBlIC. •11 ■ ■ ec: c a ■ o 11ecaec•~ 1 ■ ■ ■ ■ •e 11ra 11 ■ ■ ·■ a 1111111 e••• c •a.fin a ■ act11ea111e ■ a ■ R·ESt?ONDENT II JUDGEMENT 9 -30/07/2014 J. A. De--MeHo, J; The Appellant and nine (9) others, were charged with the offence of Shop Breaking c/ s 296 (b) of the Penal Code Cap 16 [Revised Edition 2002]. The District Court found the Appellant guilty and, sentenced him to serve a seven (7) years ter~ imprisonment. It is that conviction anq sentence that he is aggrieved . and . now in this Court Appealing against, with seven (7) grounds. - - I - With no representation, the A p ~ s on his own personal capacity while Judith Nyaki the State Cou~presen_ted the Republic. With his seven ~ . ! . (7) grounds of Appeal·and, in essence, by·large the Appellant is . challenging . the 'Doctrine of Recent Possession' in which the Trial Magistrate based conviction and sentence. He is in· total denial for both shop breaking and . . . possession of the s_tolen goods. His defense is basically that the case was a 'fabricated' one by a Policemen whom he had a misunderstanding with. Co171mencing with the. 2 nd ground of Appeal, Judith Nyaki t0e State . Counsel for the Republic strongly and, in total, supportive of both conviction and sentence. She refererred the Court to page 7 of the judgement alleged . to be controversial . and contradictory, to be in line with· ' the fact that the prosecution failed on its part to prove the Appellant to be a thief. However, she avers, re_ading through paragraph 2 of that same page of judgement it is evident that riothing substantial could establish the Appellant as the one .who broke the shop. With regard to ground 1, Counsel observed that the 'Doctrine o~ Recent Posession" was adequately and sufficiently analyzed and-~valuated as required law. That, the mere fact that Appellant was ·shortly thereafter the theft found in possession of the stolen properties to include ·340 CD & DVD's, Computer set, scanner and one lamination properties of the victim, amounted. to TShs. 17,510,500/=. All this was reflected from page !~proceedings, she referred. '!2fl5 . 2 I !.. State Attorney cited the case of Meses. Charles Deo vs. R, [1978]TLR page 34-39 rrt her· endevour to define what the Doctrine of .Recent . .. Possession' means. · In the instant case and, as depkted in of the . . proceedings a_s testified by PW2 with who it ..was alleged, transacted with the Appellant as they negotiated for sale. It was his further testimony t~<?t the Appellant even volunteered to retrieve all the items. His ~rrest at Kisesa . . lead the investigators to Magu where the bulk of the goods stolen was stored and found. From pages , of the proceedings it was further testified that the Police investigators ·were lead to DW10 and having found him in possession of the stolen goods, the same we·re retrieved, tendered and admitted during Trial without any objection. Having admitted all this, the Appellant found in such 'Actual possession' of the said goods from Musoma could not escape liabilty. In her concluding remarks, J11.1di_th brought to light . the case of Romara vs. R, Criminal Appea~ 115 of 2005 to fortify the laid down principles for the 'Doctrine' (supra) to encompass as hereunder; a) Stolen good to Ille in possession of the accused lb) The said good to be owreed rather property of the complainant c) The theft must have !been recent and in thafc chain d) Theft must be prov~ch\J~ . . if 3 . '\, . . . t . \ All this wa·s proved by- th~ prosecution for what has been observed· above she emphasized. PWl the complainant,· did duly identify his properties which were stamped & laminated in his name of 'Zengo Nangu Suluba'.. . . .. Further that, while the theft took place·· on the 3 rd of August 2011 they were retrieved on the ,to be precise only 11 days soon thereafter. However, Counsel is of the view that cumulatively, there was circumstantial . . evidence cogent to infer the Appellant with the said theft, him being in that recent possession of the same shortly thereafter. In his brief and limited rejoinder, the Appellant rebuted the submissions by Counsel for the Republic claiming that with no receipt of ownership by the· complainant PW1, proof for ownership was wanting. The one admitted by the Trial Court was though marked as .Zengo Nangu Suluba a resident of Meatu and not Musoma as alleged is wanting too. Such contradiction he asserted, called for benefit of doubt and in his favour. Being . . a 'bodaboda' rider and hired_ to carry passengers and ca_rgoes, his arr~st was malicious by the said police whom he had a misunderstanding with. The passenger'he was with, was never intercepte~the best and worse even his house (the Appellant) never s e a r c ~ ) e him with the stolen goods. 4 Before I embark on ·discussi17g this Appeal and based on the Doctrine· of Recent Possession', I am mindfu~ and duty bound to. acknowledge and appreciate the position that where the circumstance may so demand, by the . . principle that this being a. first Appellate Court, there is a duty to revisit, reconsider and evaluate the evidence on record and come to own conclusion bearing in mind that it never was privy to witness~sas they testified. Thi? is . . more so when there is likely hood that justice had been miscarried or occasioned ,in reaching the decision _by the Trial Court.· Cases of E Kibal vsa "dm IEUpenda & Others, Civii Appeia No. 107 of ~011 CAT Tabora Registry and that of 'Maramo Slaa Hofu & Others vs. Republic, Criminal Appeal No. 2546 of 2011 refers. On record, 1t was the testimonies of PW1 Zengo Nangu Suluha and PW2 Bahati .Sahani who identified the stolen items recently in purported . . possession of the Appellant stolen at the complainant shop on the 03/08/2011.The items found at IKahangara village within Magu District included various items including DVD, VCD, Calculators, Stepplers . C@ d . ~ mac.h m~s · o,ore_ p.rm~e~ne stabilizer, Counter Books and lam1nat:1on Machine.~ ~ if . .v 5 - \f\Jith no direct evidence of who actually broke and stole from th~ shop, the - Trial Court relied in its findings on the 'Doctrine of Recent Possession'. As a matter of princip_le, fFor the doctrine to apply as a basis of .conviction, · it must positively be proved as the case of Joseph Mkubwa and Another vs. Republic, Criminal Appeal. No. 94 of 2007 Criminal session .at Mbeya, stated as follows; First that the property was found with the suspect, second, the property is positively the property of the complainant, thirdly, that the property was recently stolen from the compl?linant and lastly, that the stolen goods in possession of the accused constitutes the subject of a charge against the accused. The same elements were alluded in the case of Ally Bakari & Pili Bakari vs. R [1992] TLR 10, ·salelhe Mwenya & 3 Others vs. R. Criminal Appeal No. 66 of 2006 and Allhaj Ayubu @ Msumari & Others vs. R, Crimina~ Appeal No. 136 of 2009 (both Unreported) . . . There is no dispute that the Trial Court did admit items allegedly to have beeen stolen from ·marked exhibit Pl. It was also testified that the Appellant is a 'bodaboda' driver carry:~sengers and cargoes of di~erent types .. Further evidence alu~ ~~e fact was that he was arrested at his ~ 6 ; . t \ \ working _station .at IKisesa area by a policemen and forced to lead h_im to a place purported to store the stolen properties and Which was never searched. · The place ·where the goods were found. was· not his homestead, no doubt. His version is t~at this is the place· where he dropped his customer one Nze~a Chelehann the 6 th accused in Trial proceedings, was where the goods were found. While this was never pursued adequately it_ is strange to learn how the Court never addressed possession to the said 6 th accused . In my view, the Trial Court wrongly invoked the said 'Doctrine of Rrecent Possession pointing and directing it to the Appellant. Most likely and, in_ this vacuum, failure or neglect to implicate the 6th accused alone, leaves much to be desired. No firm cogent evidence, that relies on the inference to connect the Appellant to a conclusion of a fact, has been established, I would confess. The application of the principle is m.issing in terms of proving a proposition with accuracy of mathematics and on the standards set. This is in the light of the case of Julius Justine & Others vs. Republic, Criminal Appeal . . N_o. 155 of 2005, CAT Mwanza Registry (Unreported) demanding that each link in that chain must carefully .be t~sted and if it does not lead to the irresistible conclusion of the accused then the whole chain remains wanting. The same was the positio~~~ase of _Samson Daniel vs. R. // 7 (1934) 1 EACA 154. rn rriy sincer~ view as one can not avoid to link. the Doctrine of Rcent Possession to that of Circumstantial Evidence. In the interim and for the for~going reasons I allow. the Appeal. The · conviction is quashed and sentence is set aside as the Appellant is re~f:ased forthwith from prison, unless lawfully held oth;:I-yvise. . ( It so ordered. · --, ·, _ ,D.A I/ "'- 0-lfa .J.A~~ Judge 8