Samwel S/O Marwa vs Republic (Criminal Appeal 104 of 2000) [2000] TZHC 28 (17 November 2000)

IN THE HIGH COUiiT OF TANZANIA AT MV/ANZA APPELLATE JURISDICTION IIIGH COURT CRIMINAL APPEAL NO. 10 ^ OF 2000 (Original Criminal Case No* 52 of 1997 of the District Court of Musoraa District at Musoma* Before: L. M. Mlacha, Esq* Resident Magistrate), SAM'TEL S/0 MRUk .................. ..... APPEI.LANT (Original Accused) VERSUS THE REPUBLIC . --- RESPONDENT (OrigincG. Prosecutor) J U D G M E N T MROSO, JUDGE/ Theappellant, Samwel Marwa, together with one Geti Bururo were jointly and together prosecuted in the District Court of Musoma for the offence of robbery with violence contrary to sections 285 arid 286 of the Penal Code, Both were convicted as charged and were sentenced to fifteen years imprisonment* Aggrieved by the conviction and sentence both appealed to the High Court0 Gati Bururo! s appeal, No,135/99 has already been heard and decided by another judge of this court# The present appellant’s appeal was filed in this Court much later and assigned to a different judge. The brief facts of the ease which was before the trial court are that on the night of 5/1/97 the house of one Julius -Mankori was burgled and property valued at Shillings 198,500/= was stolen. In the course of the theft they tied up the owner of the house onto a bed and made verbal threats to him. Some of the things which were stolen were and a sewing machine, two radio sets*/a bag. The bandits could not be identified but on the following day those items were allegedly found by the police in a room in which the appellant and the other accused person were found sleeping. The appellant and the other person were

arrested and the items seized raid taken to the police station* The complainant was colled to the police station and he identified those items as ' . h i s property, forming part of the assortment of things which were stolen from his house. During the trial one of the rarest i. n g , police officers, P.C. Chacha (PW3), explained how he arrested the appellant in the room where the stolen property was recovered and his evidence was supported by a young man of 17 years,- one. Fadhili Shabani (Pl/2) who had' made his with own independent complaint to the police in connection y f things which had been stolen from his home in a different burglary. The appellant denied being arrested together with another person, However, he said he was arrested while at his brother’s home and denied any knowledge of, the property which complainant identified as part of his stolen property. The question before me is whether he v/as wrongly convicted and sentenced* The trial court was satisfied that the appellant and the other person (whose appeal has already been dismissed by this court) were among the handits who broke ?r+o the house of the complainant and stole from therein. Unfortunately, the trial resident magistrate made use of irrelevant considerations «Fo** ‘ example, he appeared to consider it an incriminating circumstance the fact that the accused persons before him were not bailed out. He said in his judgment , f \7hat is funny is the way they (appellant and his co-accused) remained in remand all the way todate without sureties The picture I am getting is that the present accuseds (sic) are habitual criminals and nobody was ready to bail them out. Not even their relatives'?. This statement from the lower court judgment does not only suggest of faulty reasoning a an indication/on the part of the trial magistrate, it is indicative

of biased mind* Even so, there was cogent evidence on which the appellant could justifiably be convicted for the offence charged* There can be no doubt that the appellant and his co-accused were found sleeping in a room in which stolen property was traced* The , appellants denial of that fact was only a desperate attempt to wriggle out of a conviction* The stolen property was found in the joint possession of the appellant .and "his co-accused in less than a day after it was stolen and the doctrine of recent possession was squarely applicable* The conviction was therefore well merited and the sentence of fifteen years imprisonment is the statutory minimum* I dismiss the appeal in its entirety* j J. A* MEOSO JUDGE At Mwanza 17 / 11 / 2000 . Appellant )