ofugang abdallah vs republic 2006 tzhc 246 18 august 2006

: IN THE HIGH COURT OF TANZANIA : AT MTWARA APPELLATE JURISDICTION CRIMINAL APAPEAL NO. 57/2005 ORIGINAL CRIMINAL CASE NO. 99/2004 OF THE DISTRICT COURT OF MASASI D/COURT BEFORE: T.S.A MTANIR/MAGISTRATE OFUGANG ABDALLAH - .............................. APPELLANT VERSUS THE REPUBLIC -I.......................RESPONDENT Date of Last Order: 26/6/2006 Date of Judgement: 18/8/2006 JUDGEMENT o i. 4l ' i- *■1 SHANGALIJ. In this appeal, the appellant OFUGANG ABDALLAH is appealing against the decision of the Masasi District Court (Hon.T.S.A. Mtani,DM) in the criminal case No. 99 of 2004 in which he was charged and convicted for two counts. The first count is Burglary c/s 294 (1) of the Penal code and the second count is stealing c/s section 265 of the Penal code. On the first Count the appellant was sentenced to serve four years imprisonment and the second count he was sentenced to serve six months term o f imprisonment. The sentences were ordered to run concurrently. The appellant was aggrieved with the decision of the Trial Court and preferred this appeal. . : * i Briefly the fact of the case may be summarised as follows. In the early morning of 16/5/2004 at about 05.00 am, at Lukuledi village within Masasi District the complainant MARTINE HAMIS (PWI) woke-up in his house only to find his house doors ajar and several items missing from therein. The missing items were 2 bicycles, one sponge mattress, 3 bedsheets, 2 trousers and one thermos all valued at Tsh.223,000/= property of PWI. It seems the matter was not reported to the village authority nor police . Station and instead PWI mounted his personal investigations. Oh 20/5/2005 * he got rumous that someone has been sported with his missing bicycle at Napata village. PWI proceeded to Napata village and when he reached at the village he sported a person sleeping under the tree with his bicycle aside and a sword. PWI approached the person and interrogated him. The person happened to be the appellant who admitted that he stole the bicycle from Lukuledi village. On further interrogations the appellant revealed that he had kept some other items in the house of one Asha Ausi (PW2) at Chikunja village. The appellant led PWI to the house of PW2 where another bicycle . and sponge mattress belonging to tile PWI were found. PWI stated that the appellant admitted to have already sold the other stolen items.; PW2 testified how the appellant brought the bicycle and one mattress in her house in .the midnight for safe keeping. Knowing the appellant to be a reknown thief she suspected the items to have been stolen. On the following morning of 20/5/2004 she reported the matter to the village Executive Officer PW3. Later, on the sameday at about 04.00 pm the appellant was brought at the house of PW2 by a group of people including PWI and the stolen items were fished from the house of PW2. From there the matter was reported at the Police Station and the appellant was charged: In his sworn defence the appellant categorically denied to have committed the offence and claimed that he purchased the bicycle and one mattress from one DUBE at Lupekenyela village infront of one Octavian Ngonyani (DW2) on 10/9/2003 and kept the same in the house PW2. DW2 supported the appellants story that he witnessed the transaction when the appellant purchased one bicycle Olympic make and one Matress from one Dube. DW2 claimed that from 5/5/2004 he was in remand custody on another charge and therefore he knows nothing about the events of 16/5/2004. i t In his evaluation of evidence the Trial District Magisrate found that there was no direct evidence to connect the appellant with the charges because he was not seen commiting the offences nor arrested at the scene of crime. The Trial District Magistrate used the doctrine of recent possession and convicted the appellant because the appellant was found in possession of recently stolen properties. In his;memorandum of appeal the appellant has raised ten detailed - circuitous ground o f appeal which may conveniently be reduced to only * hree grounds o f appeal. One,- whether the alleged stolen properties were sufficiently identified. Two, whether the doctrine of recent possession was :orrectly applied and three* whether there was enough and congent evidence ; ;o warrant conviction. •: Ms. Shio, the Learned State Attorney who appeared for the^ ilespondent/Respublic supported the conviction but challenged the sentence for not being in accordance with section 5(d) of the Minimum Sentence A.ct, 1972 which provide that if the value of the stolen property exceed the value of five thousands shillings the convict is liable to Imprisonment o f not less than five years. Ms. Shio argued that since the appellant was convicted for burglary c/s 294 of the Penal Code, which is specified under the first schedule to the Minimum Sentence Act 1972. the appellant should have been awarded with an imprisonment term of not less than five years. With due respect to the Learned State Attorney that position o f the ' law has been changed by the amendments in the WRITTEN LAWS (miscellaneous Amendments) Act No. 9 of 2002 in which all offences under the first schedule to the Minimum Sentence Act, 1972 including theft and burglary has been totally and completely erased. - of Back to the grounds of appeal raised by the appellant, the record of the Trial Court is clear that there is only evidence of PWI to the effect that his house was bangled and several items stolen therefrom. There was no police officer as an investigator or village member who verified the occurrence of that incident. The incident happened in the nightjaf.^ 16/5/2004. Then PWI mounted his investigations and after about four days he managed to arrest the appellant with his two bicycles and a mattress. I have painstakingly scanned the Trial Court record to see how he (PWI) managed to identify those items arid convinced the Trial Court that they were the real stolen items from his house. I have discovered that there’was « i no evidence to that effect other than PWIs words of mouth that the items belong to him and referring one bicycle as Olimpic make. On the other side the appellant has adamantly insisted that he purchased the bicycle and the mattress from one DUBE on 10/9/2003 at Mbekenyela village. His witness (DW2) went further and stated that the appellant purchased the' Qlimpic make bicycle for Tsh.50,000 and the mattress for Tsh.20,000/=f from the said DUBE. : ; In the normal practice PWI should have advanced some explanations, descriptions or any document to support his claims that those were the very items stolen from his house.- The borden is not upon the appellant to prove ’ that the items belongs to him but upon the prosecution to disprove it beyond reasonable doubt. At the moment we are hanged with the question * whether in the all villages of Lukuledi, Napata and Chilcuhja or the whole PWIs locality there was only one Olimpic Make bicycle and one mattress , belonging to PWI. If we agree that PWI is not the only person who had 5 acquired such items then it was incumbent on him to distinquish his items by giving some explanations and description on how he identified the alleged items. This position of the law and its Principles were adequently echoed in the case of FADHILIMOHAMED VS. R. (1974) LRT (5) where it was stated that; “In the identification of stolen property, the desired procedure is for the complainant to describe the property in some detail and to give any distinquishing features where possible..” That stance of the law was also repeated in the case o f ALLY BAKARI VS. R. Criminal Appeal No. 47 of 1991 - Dodoma Registry -CA (Unreported). On the second ground of appeal, the doctrine of recent possession : provides that if a person is found in possession of property recently stolen and gives no reasonable explanation as to how he came by the same, the court may legitimately presume that he is a thief or a guilty receiver. This. doctrine is applicable where the alleged possessed and recently stolen properties has been well identified and proved to be the very recently stoleij properties. If the complainant have failed to adequently identified the items as his very stolen properties like in this case the doctrine o f recent possession can not be invoked against the appellant. I hold that the doctrine was wrongly invoked against the appellant. Together with the above findings 1 have considered the appellants complaints that there was no enough evidence to establish the incidence of theft; that there was no enough evidence to prove that he (appellant) confessed to have stolen the properties as alleged by 5PWI, and the factthat he has insisted and maintained that the alleged properties belong Uxhim. In view of the foregoing I agree with the appellant that there was no enough and congenf prosecution evidence to ground a conviction against the \ appellant. • . Accordingly the appeal is hereby allowed. The conviction and sentence imposed against the appellant in both counts is quashed and set aside. The appellant should be set free immediately unless lawfully helc| on another separate matter.', • ! I* * ; It is so ordered. - M.S^^iangali JUDGE 18/8/2006 Judgement delivered todate 18/8/2006 in the presence o f Mr. Luena, Learned State Attorney and the appellant in person.