selemani habibu vs republic 2007 tzhc 350 7 may 2007

IN THE HIGH COURT OF TANZANIA AT SONGEA. HIGH COURT CR. APP. NO. 11/2006 (ORIGINAL CR. APP.NO. 342/2005 OF THE D/C OF SONGEA DISTRICT) SELEMANI HABIBU ........ APPELLANT VERSUS: THE REPUBLIC .... ............ RESPONDENT 28/3/2007 - Hearing Concluded 7/5/2007 - Judgment Delivered JUDGMENT KAGANDA, J. The appellant was charged before the District Court of two counts, those were Burglary and Stealing. He was convicted and sentenced to five and three years jail imprisonment. He now appeals against both the conviction and sentence. The prosecution case is based on circumstantial evidence because there was nobody who saw the appellant break and steal the goods. On his grounds of appeal the appellant argued that there was no identification of the stolen goods by the complainant for her to claim title. Also he argued that, the trial Magistrate was wrong to shift the burden of proof on the appellant instead of the prosecution. His argument has been supported by the learned State Attorney in his submission before this court. The evidence for the -prosecution was based on three witnesses. In brief, P.W.I noticed of the offence but did not know who the Culprit were. Later after six days, he saw the appellant sell some of the goods stolen from his room. The search was witnessed by P.W.2 and a ten cell leader. P.W.2 being the Landlord to appellants house. According to P.W.I and P.W.2, the appellant entered into his room and took out all those items identified by P.W.I and later tendered before the court as exhibits. But, on defence case the appellant is said to have inherited the goods suspected to have been stolen from his late father. That was contrary to P.W.2’s and P.W.I’s testimony, according to those witnesses, the appellant is said to have claimed that the goods were brought to him by someone else other than himself. The appellant identified some of the goods by their specific marks but the learned Resident Magistrate rejected it on reason that, the ‘ appellant could have marked them during the six days he had been with them. I have examined the evidence and the learned Magistrates judgment. It is true that, she misdirected herself on shifting the burden of proof to the appellant instead of the prosecution. It has been stated on several occasions that in all criminal cases the burden of proof lies on the prosecution unless the law provide otherwise. The accused is merely required to cast some doubt on the prosecution case. In the case at hand I could have agreed with the learned State Attorney’s submissions together with the appellant had it been not for the stolen goods to have been surrendered by the appellant himself during the search as testified by P. W.I and P. W.2. That is, if a man confesses to a crime of theft and shows where he had kept the goods or surrenders them, then it is enough corroboration to the prosecution evidence. I am fully convinced that the search was conducted in the presence of the appellants landlord, he did enter into his room and surrender the stolen goods. Being a landlord means a person well to do, that is why she could afford to accomade the appellant at a fee. She has been a landlord for two years to the appellant and it is difficult for one to believe that she could have decided to implicate the appellant maliciously in such a serious offence. There was no evidence of resentment between the appellant and his landlord, I therefore have no cause to doubt of P.W.2’s evidence. On the issue of Identification to property, it is true and I agree with the appellant on that, In a case involving things of general description and common manufacture, anyone claiming that they belong to him must show special marks peculiar to himself to himself as evidence of ownership, Fadhili Mohamed V.R. (1974) TLR. 5 That precedent can be distinguished where the identification is not necessary. Similar view was'held in the case of Mohamed Ismail V.R.(1975) TLR 31 on that:- “Where the identification of stolen goods is necessary the prosecution must prove beyond reasonable doubt that the goods found with the accused were those of the complainant.” In the case at hand I find that the identification was not necessary since the goods he had stolen from P.W.I were surrendered by himself. In the event I find that, the appellant was legally convicted under the doctrine of Recent Possession of Stolen goods. I therefore live the conviction undisturbed, so is the sentence. Appeal dismissed. 5.5. KAGANDA, JUDGE. 6/5/2007 Court: Judgment read over and delivered in the presence of appellant and State Attorney this 7/5/2007. 5.5. KAGANDA, JUDGE. 7/5/2007 I certify that this is a true copy of the original. " DISTRICT R f ' ' ' ' " " ' PIGti CQ'MT 1 SSK/ESY.