seif hamisi saidi ngachumi vs republic 2007 tzhc 433 25 may 2007

IN THE HIGH COURT OF TANZANIA AT MTYVARA APPELLATE JURISDICTION CRIM INAL APPEAL NO. 20/2005 ORIGINAL CRIMINAL CASE NO. 10/2004 OF THE DISTRICT COURT OF KILW A AT M ASK BEFORE: S.G. CLEOPHACE, ESQ D/M AGISTRATE SEIF HAM ISI SAIDI N G A C H U M I------ APPELLANT VERSUS THE REPUBLIC Date o f Last Order: 20/4/2007 Date o f Judgment: 25/5/2007 JUDGM ENT SH A N GALL J . The appellant SEIF HAMISI SAIDI NGACHUM I was charged before the District Court o f Kilwa with two counts namely Burglary Contrary to Section 294(1) o f the Penal Code and stealing c/s 265 o f the Penal Code. On 20th May 2004, the appellant was convicted on both counts. On the first count o f Burglary he was sentenced to serve twelve months imprisonment and on the second count o f stealing he was sentenced to serve five (5) years term o f imprisonment. The sentences were ordered to run concurrently. The appellant being dissatisfied with the decision o f the trial District Court has preferred this appeal against both the conviction and sentence. Briefly the facts o f the case as deponed by prosecution witnesses discloses that in the night o f 1st February, 2004 the Shop o f PWI situated at Mikoma Nakimwera village was burgled by bandits and several items were stolen therefrom including one radio, differet types o f washing soap, pairs of Khanga, cooking Oil, Tomato souce, tooth paste, underwears, Office Pins, Chocolate bars and other items as shown in exibit PI collectively; all valued at T sh.l 17,330 the properly o f PWI Mohamedi Saidi @ Duka. In the early morning o f 2nd February 2004 PWI reported the matter to the village executive Officer (PW3) and other Village leaders. The Village leaders organized a manhunt exercise by using the villagers and village vigilante group commonly known as sungusungu. At the sometime PW3 ordered for search and arrest o f the appellant who had borrowed the bicycle o f one Hassan Kachepo and disappeared with it. j On 3 February, 2004 at about 1.30 am, PW5 and his searching party were able to arrest the accused (appellant) at M kazambo village with the alleged bicycle together with a sulphate bag full o f the alleged stolen items from the shop o f PWI. The appellant was taken before the village Chairman (PW 2) and the village executive Officer (PW3) where all the stolen items were duly identified by PWI. The owner o f the bicycle was allowed to take his bicycle and the appellant was taken to the Police with the stolen items and later charged. In his defence the appellant categorically denied to have committed the offence and claimed that the whole case was fabricated against him by PW5, the village militiamen and Hassan Kachepo the owner o f the bicycle because o f their badblood relationship. He complained that he was forced by the village leaders to carry the sulphate bag full o f stolen properties to the Police Station as if he was the one who had committed the offence. As I have pointed above the trial District M agistrate was satisfied with the prosecution evidence and convicted the appellant. In his elegible memorandum o f appeal the appellant filed about grounds o f appeal which may conveniently be summarized to only one crucial ground namely whether there was cogent and sufficient prosecution evidence to warrant a conviction against the appellant. Mr. Hyera, Learned State Attorney who appeared for the respondent/Republic supported the decision o f the trial District Magistrate on conviction and boldly submitted that the prosecution evidence against the appellant was over whelming, watertight and straight forward. The learned State Attorney stated that although there is no evidence to show that the appellant was seen or found breaking the shop in that night but he was arrested within a period o f two days in possession o f some o f the items stolen from the shop o f PWI while in his attempts to sell the same in the neighbouring village. The Learned State Attorney submitted that the doctrine o f recent possession is applicable in this case because the appellant was not able to give any reasonable explanation on how he had came to the possession o f the recently stolen items. Mr. Hyera also submitted that it was impossible for the village leaders and the villagers to fabricate such an offence against the appellant. On sentencing, the Learned State Attorney had no quarrel with the sentence imposed on regard to the second count o f stealing; However on the first court he stated that when the offence o f burglary was committed on 1st February, 2004 that offence was under the Minimum Sentence Act 1972, first schedule. The Minimum Sentence for such offence was specifically five years imprisonment. He further contended that, that law was amended later in the written laws (M iscellaneous Ammendment) Act No. 9 o f 2002 which came to operation on 1st September 2004 by GN.312 o f 2004. The Learned State Attorney requested this court to impose a sentence which will be in line with the relevant provisions o f the law in operation at the time. On my side the available prosecution evidence from the 5 witnesses convinces me totally and completely that the appellant was arrested with the stolen shop items exibit PI together with the hired bicycle o f one Hassan Kachepo. The appellant was arrested with those items within a period of 48 hours from the time when the shop o f PWI was burgled into and those items stolen therefrom. The appellant failed totally to explain to the Court how he acquired the possession o f those stolen items. The stance o f the law is that where a person is found in possession o f the properly recently stolen and fails to give reasonable explanation on how he acquired them is presumed to have participated in the offence o f stealing the same. In other words where a person is found with stolen or unlawfully obtained property, the burden shifts on him to satistriy the court on how he obtained the same. That position o f the law is amply demonstrated in the case o f MWITA W AMBURA VS. REP - Criminal Appeal No. 56 o f 1992 (CAT) Mwanza Registry (Unreported) and in the case of ALLY BAKARI VS. R. Criminal Appl. No. 47 o f 1991 (CAT) Dodoma Registry (Unreported). In the present case there is over whelming evidence that the appellant was found with those stolen items but he has failed completely to give any explanation an how he came to the possession o f the same and instead has been capitalizing on total denial. Regarding to the issue o f sentence I am afraid that there is a small confussion. To my understanding the written laws (M iscellaneous Ammendment) Act No. 9 o f 2002 being as it is a miscellaneous Amendments, th it came into operation on 4 June 2002 when his Exellent the President assented the same. That law deleted amoung others the offences o f House breaking or burglary from the Minimum Sentence Act, 1972. The present offence was committed on 1st February, 2004 almost about two years from the date when the Minimum Sentence Act 1972 was amended. The GN. 312 o f 2004 deals with the proclamation date o f coming into force o f the Revised Edition, 2002 and not any particular law encompassed in the Edition. Therefore the trial District Magistrate was correct not to apply the Minimum Sentence Act in sentencing the appellant. In conclusion, I am satisfied that the appellants conviction was based on cogent and sufficient prosecution evidence and sentences imposed are proper in law. The decision o f the trial District M agistrate is hereby upheld and appeal is dismissed for lack o f merits. It is so ordered. 25/5/2007 Judgment delivered in the presence o f Mr. Hyera, Learned State Attorney represating the respondent/Republic and in the absence o f the appellant who is said to have been released on the Presidential Clemency on 26th April, 2007. O * \ *7 \ \l\ M.S. JUDGE 25/5/2007