20181228 TZHC Mwanza2

IN THE HIGH COURT Of TANZANIA IN THE DISTRICT REGISTRY ATMWANZA HIGH COURT CRIMINAL APPEAL NO. 120 OF 2017 (Original Criminal Case No. 03 of 2016 of the District Court of Chato at Chato) TIMOTH KASOBI me ■■ 11ms ■■••••••••••••••••~•••••·• ■ a•••••••••••• .. •••a11m11e APPELLANT VERSUS THE REP'UBLIC ■ ■ n ■ ■ ■ ■ •• ■ ■ ■ 11 1111111111 ■ 11 • • rr ■ a:•.• ■•·•• ■■• ■ ■ ■ • •• ■■ ■ ■ • ■ ■ ■ ■■ ■■ RESPONDENT 11 11 1!11 11 JUDGMENT '19/09 & 28/12/2018 RUMANYIKA, l.: Appeal is against conviction and a two years custodial sentence of · 03/10/2016 for offence of being in possession of goods suspected to have been stolen or unlawfully acq~ired Contrary to Section 312 (1) and (.b) of Penal Code Cap. 16 R.E. 2002. That' Timoth Kasobi (the appellant) was on 01/01/2016 at about ) 12:45 hours at Kanyama Village Chato unlawfully found in possession of a motor cycle (me) make SANLG Reg. No. T. 239 CRR suspected stolen or unlawfully acquired. The grounds of appeal are two basically: 1. That the trial Resident Magistrate wrongly cc;mvicted him ·relying on the appellants' week defen~e case. 1 ~. 2. That the doctrine of recent possession was improperly invoked . .) The appellant appeared in person and submitted nothing. Ms. Gisela Alex, learned State Attorney appeared for the respondent Republic and readily -supported the appeal. That the charges were not proved beyond reasonable doubts. That he may have had no documentary evidence yes!· But only mentioning Mwalimu Masizi the appellant had casted reasonable doubts on the prosecuti9n case. Much as· the three · criteria were not met; One; there had been incident of stealing. Two; the property belonged to the complainant and Three; the property had been recently stolen. That the statement of offence however, confusingly suggest doctrine of recent possession. The conviction and sentence were improper. ·stressed the learned State Attorney. A brief account of evidence on record runs as follows: PWl D. 6944 D/Sgt. Emmanuel stated that as was in ordinary course of business at the material tim~ on duty, he found the appellant in possession of a motor cycle with Registration No. T. 239 Make SUNLG (Exhibit "PE1'') which he claimed owning but gave no sufficient account. As had no documentary evidence or something. PW2 E. · 1119 D/Sgt. Steven supported him and stated as· pwl materially. That is it. 2 . On defence, the appellant just admitted possession. But the MC had been given to him and but unfortunately transaction not reduced into writing. That is it. Handling down his decision, the learn~d trial Resi~ent Magistrate found that as long as no witness, during pendency of the case appeared to support him, and appellant should not have purchased such a valuable item just like fruits or chicken without a exhibitory receipts (registration card and the like), the charges were proved against him. He convicted and sentenced the appellant~ The issue is whether the charges of being in possession of property suspected or unlawfully acquired were beyond reasonable doubts proved. The answer is no! Like Ms. Gisela -Alex, learned State Attorney argued, properly so in my view, the moment he stated that he had been given the me by ·one Mwalimu Masizi, the appellant was home and dry. Without the prosecution clearing the reasonable doubts casted by the appellant, the latter was entitled to acquittar. However, I would not agree with the learned State Attorney that criteria of the doctrine of recent possession was not met. M·uch as that one wasn't basis of the conviction or at all. Issues like whether it was ·stolen, who was owner of the me, and whether it had been recently stolen cannot arise.· In other words, contrary to cardinal law and principle, the trial court very clearly shifted the burden to the appellant. · Iri any criminal 3 I j proceedings, accused has no duty to prove his innocence. I entertain to doubts that requiring him to produce documents of ownership or witnesses it tantamount to the trial court shifting burden of proof to the appellant. After all it is common knowledge that 911 motor cycles were in the. system traceable. The me was no exception. In which case therefore had it. now from the -system been proved that the me belonged to else body, that person should have been brought to court to contradict the appellant and - probably prove the prosecution case. Having said all, -I will, as hereby do quash conviction and set aside the sentence. Appeal is allowed. Unless was legally held further, the appellant be released from prison forthwith. Ordered accordingly. Right of appeal explained. ·;;, S.M.(RllM YIKA )U GE 25/12/2018 DR 28/1'1./;2018 4