maruzuku hamisi v republic 1997 tlr 1 (hc) a

MARUZUKU HAMISI v REPUBLIC 1997 TLR 1 (HC) A

Court High Court of Tanzania - Mwanza

Judge Masanche J

CRIMINAL APPEAL 84 of 1996 B

28 October 1996

Flynote

Criminal law - Theft - Proof of - Doctrine of recent possession - When applicable. Evidence - Burden of proof - Accused's version has only to raise reasonable doubt. C

-Headnote

The appellant had been convicted of robbing with violence and sentenced to 30 years' imprisonment. The evidence indicated that the complainant had been D attacked in his house at night by a group of people and in the course of the attack the complainant was assaulted with a panga and his bicycle was stolen. Three weeks later the appellant was arrested whilst being in possession of the complainant's bicycle.

Held:

(1) That the appellant had given an explanation to the police as to his E possession of the bicycle: he had said that he had bought it from the eighth accused in the trial;

(2) That the accused's story did not have to be believed but only to raise reasonable doubt. In the present case the appellant gave an explanation and the appeal was accordingly allowed. F Case Information Order accordingly.

Cases referred to

1. Hamisi v R [1963] EA 211 G

2. Hassan Madenge v R Criminal Appeal No 50 at 1987 (unreported)

3. Omparkash Gandi v R [1961] EA 643

Rutaisire for the appellant

Mbago for the respondent.

Judgment

Masanche J : H

The appellant, Maruzuku s/o Hamisi, was convicted of robbery with violence contrary to s 285 and 286 of the penal code. He was sentenced to thirty years imprisonment. He now appeals against both conviction and sentence. It had been alleged that on 23 September 1995, at 3:00 am, the appellant in the company of some 

1997 TLR p2

MASANCHE J

A other people robbed Jafary s/o Paul, PW1, of a bicycle and Shs 20 000/= in cash. Mr Rutaisire, learned advocate argued for the appellant in the course of the appeal before me. Mr Mbago, learned state attorney argued for the Republic. B We revisited the evidence that was adduced at the trial. Learned counsels were of the view that as far as this appellant was concerned (and he is the only one who is appealing) he was convicted on the doctrine of recent possession. That doctrine, they argued could not pin down the appellant, as he had given enough explanation for possession of the bicycle. C It was on 23 September 1995, at 3:00 am, when Jafary Paulo PW1, while sleeping in his house with his wife, a group of people pounced into his house. The wife of Paulo was quick to bolt out. She escaped. The complainant decided to engage one of them, but he was cut with a panga in the process. He abandoned his bravery attempt and fled. D

Later, people were arrested, including the appellant. The appellant was arrested with a bicycle, which, of course, got identified to be that of the complainant. But, and this is where the counsels agree, the appellant gave an explanation of how he got the bicycle. He explained that it was sold to him by the eighth accused in the E trial, and in presence of a witness Issa Ally PW8. The wife of the appellant also witnessed both the bargain and the actual sale. It was the wife who, actually, advised the appellant to go ahead and buy the bicycle. Time between the actual theft of the bicycle and the recovery of the bicycle from the appellant was three F weeks. I agree that there was an explanation here to the possession. Again, the same appellant had given a cautioned statement to the police (Exhibit P4) in which he stated that the bicycle was sold to him by eighth accused in the trial. In the case of Hamisi v R (1), it is stated that: G `Once the accused has been found in possession of property which may reasonably be suspected of having been stolen or unlawfully obtained, then the burden shifts on him of satisfying the Court as to how he came by the same. But the burden is not a heavy one.' H

The Court of Appeal for Tanzania in the case of Hassan Madenge v R (2), has said that:

`An accused's story does not have to be believed. He is only required to raise reasonable doubt, that is to say, his explanation must be within the compass of the possible in human terms.' I 1997 TLR p3

MASANCHE J

It may also be useful to quote the obiter of Sir Ronald Sinclair CJ, in the case of A Omparkash Gandhi v R (3) at 647 where he says:

`In all these cases [possession cases and receiving cases] the defence is never required to do more than show an explanation which is reasonably possible in the circumstances.' B Once again, I think the appellant gave an explanation for the possession of thebicycle. This is why I allowed his appeal on 11 October 1996 and set him free. C1997 TLR p3