Samwel S/O Marwa vs The Republic (Criminal Appeal No. 104 of 2000) [2000] TZHC 71 (17 November 2000)

IN TJIE HIGH GOUln' OF TANZANIA AT My!ANZA APPELL{-1'I'E JURISDICTION .,. . " HIGH COUR'l' CRIMINAL APPEAL N0.10lt OF 2000 (brigihal Crimfoal Cas_e No. 52 of 1997 of the District Court pf Musoma Distr'ict at Musomai Before: L., Mo Mlacha, Esqi Res1.dent Magistrate)~ (Original Accused) VERSUS THE REPD13LIC 0 0 C O O O o O O IQ O O O O o 'J o O G 4' ,-, O O & O O • RESPONDENT (Original Prosecutor) JUDGMENT The appellant, Samwel Marvi2,, to1t,ether with one Go.ti Bururo were jointly and together prosecuted in the District Court of Musoma for the offence of robbery with violence contrary to sections 285 vnd 286 of the Penal Code. Both were convicted as charged Md were sentenced to fifteen years imprisonment., Aggrieved by the conviction and sentence both appealed to the High Courto Gati Bururo 1 s appeal, No.135/99 has already been heard and decided by another judge of this courto •''l'he present appellant I s appeal was filed in this Court much later and assigned to a different judge. The brief facts of the case which was before the trial court nre 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 himo Some of the things which were stolen were and a sewing machine, two radio sets 1 L a bo_g. The bandits could not be identified but on the following day those items were allegedly found by the police in a r6om in which the appell&nt ax1d the other accused person were found sleeping. The appellant mid the other person were

.. ~. .. '< arrested and the Hems seized 2.nd taken to the police station, The compll_{nant was called to the police station anci he identified those items aSi.~his __ property, forming part of the assortment· of things which ~~re" stolen from his hoi.,se .. During tfai":tria+ one of the•-- o:':"resting, police officers, P.C ~ Chi.i.cha (PW3) 1 explained how he arrested the appellant in the room where the stolen proper~• was recov:ed and his evidence was supported. by a young man '5f·:"17 years,., one, F.adhili Shab.:mi CPW2), who had' madehis ..... ,. ·.. ,. ·:·. · -..-· .. --··· ··· with .. · .. own independent com1':ilaint to the police in connection f_f things ~hich,,: had been stolen fro1?1 ,:his hoi:ne in n different burgle.ry • ......... The appellant denied being arrested together with another person. However, he said he we.s arrested while at his brother's home and denied any knowledge of,.th,,-property which complninant identified as ,;· ~' ··1•! part of his stolen property •. . ':. The question before me·is whether he was wrongly convicted and sentenced. The trial court was satisfied that the appellant and the other person (whose appeal has alreody been dismissed by this court) were among the bandits who broke :ir1to tb.e house of the complainant and stole from therein. Unfortunately, the trial resident magistrate made use of irrelevMt considerations •l'or::·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:- "What 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 accusecl.s (sic) are habitual criminals and nobody was ready to bnil them out.. Not even their relativesri. This statement from the lower court judgment does not only suggest of faulty reasoning a an indication£on the pGrt of the trial magistrate, it is indicative

3 of biased mind• Even so, there w.'3.s cogent evidence on 1t1hich the appellant; c◊uld justifiably-be convicted for the offence charged • ..... There can he no doubt that the appellaht a.hd his co-accused were ... ~ ~ -·.·. ~ . . . ·. . found sleeping in a room in which stolen property was traced,. The , appellt 1 .s denial of that fact 1·1as only a desperate attempt to wriggle out of a conviction. The st?len J>rope-rty was found in the joint possessio!'!, .of the appellant and "his co-accused 'in iess than a day after it was stolen and the doctrine of recent possesion was squarely applicable. The conviction was therefore well merited end the sentence of fifteen years imprisonment is - the· ttutor.y minimum. I dismi.ss -the appeal in its_ entirety~ j J:e ·A,. M"R.OSO JtTDGE At Mwr:mza, 17/11/2000. Appe,llant .·./· _)) St.'3.te Atfqrne.y '- · · · .. -'.;·, - . .,.- ) absent .• • ......