ALLY BAKARI & PILI BAKARI v REPUBLIC 1992 TLR 10 (CA)

 ALLY BAKARI & PILI BAKARI v REPUBLIC 1992 TLR 10 (CA)

Court Court of Appeal of Tanzania - Domoma

Judge Mapigano Ag. JA, Ramadhani JJA, Mnzavas JJA

20 February 1992

Flynote

Evidence - Circumstantial - Facts from which inference of guilt is drawn must be

proved G beyond reasonable doubt;

Criminal Law - Recent possession - Applicability of the doctrine.

-Headnote

On 1/11/86 at about 8.30 pm, two persons called at the house of PW.2 when he was

H outside relieving nature. They were let in by Ally Hassan, now deceased.

Immediately thereafter PW.2 heard a sound of a gunshot. He ran to the house of his

neighbour. When he returned he found the deceased having a wound on the

abdomen. In addition I the culprits had stolen several items including PW.2's sewing

machine head. None of the culprits was identified. The

1992 TLR p11

MAPIGANO AG. JA, RAMADHANI JJA, MNZAVAS JJA

deceased died later. PW.1 asserted that he met the appellant having a gun a few A

hours before the incident and further that the appellant confided to him that he

intended to rob someone. PW.3 alleged that he was called by the appellant while in

remand prison and informed that he, the appellant, had hidden a sewing machine

head in the bush and requested him to retrieve it and send it to his (appellant's) home.

On B 24/12/86 PW.3 went to the scene and found the machine but did not take it.

Somehow other people got wind of the event and as a result he was arrested and

joined with the appellant in a charge of murder. He was discharged later. The

machine was tendered in court as an exhibit. The trial judge convicted the appellant

for murder. He appealed C to the Court of Appeal on the grounds, inter alia, that the

doctrine of recent possession which was used to find the appellant guilty was

misapplied on the ground that there was no sufficient evidence that the sewing

machine belonged to PW.2. D

Held: (i) Where the evidence against the accused is wholly circumstantial the facts

from which an inference adverse to the accused is sought to be drawn must be proved

beyond reasonable doubt and must be clearly connected with the facts from which

the inference is to be inferred. E

(ii) as PW.2 could not with certainty show that the sewing machine (Exh. P.2)

belonged to him the doctrine of recent possession could not be applied in this case.

Case Information

Appeal allowed. F

Alimwike, for the appellant

Njulumi, for the Republic

[zJDz]Judgment

Mapigano, Ag. J.A. and Ramadhani and Mnzavas, JJ.A.: On 1/11/86 at about G 8.30

p.m. one Ally Hassan was shot with a firearm and killed. The incident took place in

his village of Mulua in the Kondoa District, inside the house of PW.2 Juma Bakari, his

relative. The appellant was charged with the murder of the deceased man and tried by

the High Court. On 20/3/91 Maina, J. sitting at Kondoa convicted him of the offence

H and consequently sentenced him to death. This is an appeal from that judgment.

PW.2 gave an account of the commission of the crime before the High Court.

According to him, two persons called at his house in that night when he was outside

relieving nature. They were let in by the deceased and immediately thereafter he

heard I the sound of

1992 TLR p12

MAPIGANO AG. JA, RAMADHANI JJA, MNZAVAS JJA

gunshot. He was terrified and he did the only practical thing: he ran to the house of

his A neighbour. When he returned to his house he found the deceased within

doors, having sustained a wound in the abdomen. The culprits had made away with

several valuables including PW.2's sewing machine head, Simanco make. Neither the

deceased nor B PW.2 could identify any of the two culprits. The deceased later died.

When the evidence is properly examined it becomes plain that the two culprits were

involved in a common design to commit a robbery, and that their plan envisaged the

instant use of maximum violence to overcome any possible resistance. It also becomes

C plain, as the learned trial judge apprehended, that the evidence led against the

appellant was circumstantial in nature.

That evidence related to the appellant's alleged encounter with PW.1 Paulo Fokas in

the morning of 1/11/86 in the village of Sori; a request which was allegedly made by

the D appellant to PW.3 Halifa Sefu, his nephew, at the remand prison; and the

discovery and identification of a sewing machine head, Simanco make, i.e. exhibit

P.2, that followed that request.

PW.1's allegation was that he met with the appellant on 1/11/86 early in the morning.

E He was in his garden when he saw the appellant passing by. He called the appellant

and sought his hand to put a bag of tomatoes on his head. His request was met with a

positive response. The appellant put down his bag and came to PW.1. On getting

closer PW.1 observed that the appellant had a magazine that contained bullets. PW.1

was F suspicious and he told the appellant that he wanted to see what he was

carrying in the bag. The two went to the bag which the appellant opened and took

out a gun. Next the appellant levelled the gun at PW.1 and threatened to do harm to

him if he revealed that he (appellant) was possessed of the weapon. Finally the

appellant disclosed to him G that he intended to use the weapon to rob some one of

a sewing machine head and other things in discharge of a deal he had made with

another man. All this was denied by the appellant.

The narrative of PW.3, also denied by the appellant, was that he went to the remand

H prison on 19/12/86 and saw the appellant, as he had received a message from his

sister that the appellant wanted to talk to him. The appellant told him that he had

hidden a sewing machine head in the bush and requested him to go to the place and

retrieve it, that is, take it to his (appellant's) house. He went to the place on 24/12/86

and saw I the machine, exhibit P.2, but he did not take it. He went and sought

counsel from his friends, but somehow

1992 TLR p13

MAPIGANO AG. JA, RAMADHANI JJA, MNZAVAS JJA

other people came to know about the hidden machine and he was arrested, confined

A and charged with the murder of the deceased along with the appellant. He was

discharged nine months later.

The appellant told the trial Court that both PW.1 and PW.3 had cause for telling a lie

against him, namely, that PW.1 wanted to avenge the death of his brother Valentine

B who, while in the company of the appellant, was shot and killed by the police; and

that PW.3 simply wanted to extricate himself from the charge he was facing.

Exhibit P.2 was shown to PW.2 at the trial and the witness claimed that it was his

property and the one that was stolen by the bandits who killed the deceased. He did

not produce any document to support his claim and he would not remember its serial

C number. Under cross-examination he was candid enough to say that "if exhibit P.2

is put with others of this type, I cannot say it is mine. What I say is that the sewing

machine head stolen from my house was Simanco make". D

The trial judge believed the evidence of PW.1 and PW.3. He also accepted the

evidence of PW.2 that exhibit P.2 was his property and that it was the very sewing

machine head that was stolen during the killing of the deceased. He paid attention to

the fact that PW.2 had once been a co-accused of the appellant and he took the view

that E his evidence required corroboration, as a matter prudence, before it was acted

upon. He found such corroboration in the evidence of PW.3 and, accordingly, he

treated the case as one admitting of the application of the doctrine of recent

possession of stolen property.

Of the seven grounds of appeal filed by Mr. Alimwike, learned advocate, on behalf of

F the appellant, only five bear our consideration. The first grounds attacks the

finding of the trial judge on the credibility of PW.1. In his address Mr. Alimwike

argued that it is highly unlikely that the appellant would have made such a serious

and risky disclosure to PW.1. He demonstrated how in his testimony PW.1 had

diverged from the statement G he had previously made to the police. He submitted

that the trial judge was wrong when he dismissed the appellant's contention that

PW.1 was ill-disposed to him as a result of the violent death of his brother Valentine.

Appearing for the respondent Republic, Mr. H Njulumi, learned State Attorney,

generally supported the reasoning and findings of the trial judge.

The second ground of appeal attacks the finding of the trial judge on the credibility of

PW.3. Mr. Alimwike's submission was that the judge ought to have approached the

evidence of that witness with greater caution. With respect, we have failed to see the

I point

1992 TLR p14

MAPIGANO AG. JA, RAMADHANI JJA, MNZAVAS JJA

of this submission, because that is exactly what that learned judge did. The judge, as

A shown, looked for corroboration.

The third ground of appeal faults the learned judge for holding that the evidence of

PW.1 supplied corroboration to that of PW.3. Mr. Alimwike said that he had failed to

see how the evidence of PW.1 could have done so. Again with respect, we agree B

with Mr. Njulumi that the evidence of PW.1 could serve that purpose, provided that

it was itself credible.

The fifth ground is that the trial court went wrong in accepting the evidence of PW.2

to the effect that exhibit P.2, was the sewing machine head that was stolen from the

house C of PW.2, and that the doctrine of recent possession was thus misapplied.

Mr. Alimwike submitted that there was no sufficient evidence that exhibit P.2

belonged to PW.2. On his part, Mr. Njulumi pointed out that the appellant had not

claimed the machine to be his and no body else except PW.2 had lodged any such

claim. D

Our view is that there was hardly any truth in the appellant's allegation that PW.1

bore hard-feeling against him in consequence to the death of Valentine. The evidence

does not show why that death might have engendered such impulse in the mind of

PW.1. We agree with Mr. Alimwike, however, that the encounter between PW.1 and

the E appellant, as described by PW.1, was quite peculiar.

It was said that the appellant ordered PW.1 to sit down and then threatened him with

the gun. Yet within no time the appellant went on to confide to PW.1 about his

atrocious plan. It is an undeniable fact of life that the normal run of such criminals do

not behave F in such a thoughtless and dangerous manner.

It is true that in his testimony PW.1 shifted from the statement he had made to the

police and he more or less admitted that fact. He told the trial Court that he reported

the appellant's disclosure to the police on 2/11/86, that is the day following the

murder. G But when the police-statement was shown to him by the defence Counsel

he agreed that he might have done so a week later. He also testified that he did not

accept the appellant's invitation to be a partner in the intended robbery, whereas in

his police-statement he stated that he had agreed to take part in the commission of

the crime. H

Given the uncommonness of PW.1's account and the discrepancies we have alluded

to, we think that it was needful for the trial Court to apply practical wisdom in

viewing and assessing the credence of that story.

The evidence of PW.3 pertained to the discovery of exhibit P.2 in the bush. We I

entirely agree with the trial judge that the

1992 TLR p15

MAPIGANO AG. JA, RAMADHANI JJA, MNZAVAS JJA

evidence of this witness required corroboration. As shown, the judge held the view A

that the evidence of PW.1 provided the required corroboration. The judge accepted

the word of PW.2 and found that exhibit P.2 was the machine that was stolen from

the house of PW.2 immediately after the deceased was murdered in that house. The

judge went on, as mentioned already, to apply the doctrine of recent possession. B

To be sure, if upon a charge for murder it is proved that the deceased person was

murdered in a house and that the accused stole goods from the house, as was the case

here, and that the accused was a few days afterwards found in possession of the stolen

C goods, that raised the presumption that the accused was the murderer, and unless

he can give a reasonable account of the manner in which he became possessed of the

goods, he would be convicted of the offence.

Mr. Alimwike's argument was essentially that the doctrine of recent possession was

D inapplicable in this case, in that it was not established that exhibit P.2 was the

property of PW.2 and the very sewing machine head that was stolen by the two

murderers. This argument has tremendous force.

Quite clearly, as a matter of law and logic, it is essential for a proper application of the

E doctrine of recent possession, that the stolen thing in the possession of the accused

must have a reference to the charge laid against the accused. That is to say that the

presumption of guilt can only arise where there is cogent proof that the stolen thing

possessed by the accused is the one that was stolen during the commission of the F

offence charged, and, no doubt, it is the prosecution who assumes the burden of such

proof, and the fact that the accused does not claim to be the owner of the property

does not relieve the prosecution of that obligation.

Also pertinent to this matter is the rule that in a case where the evidence against the

G accused is wholly circumstantial, the facts from which an inference adverse to the

accused is sought to be drawn must be proved beyond all reasonable doubt, and must

be clearly connected with the fact sought to be inferred therefrom.

The vital question which needs to be considered and answered, therefore, is whether

H there was sufficient evidence to support the finding of the trial judge in respect of

exhibit P.2. This takes us back to the evidence of PW.2.

As shown above, PW.2 could not produce any document to support his claim that

exhibit P.2 belonged to him. He said he could not remember the serial number of the

I sewing machine head that

1992 TLR p16

was stolen from his house. Under cross-examination he put the matter bluntly and,

on A our part, there is no mistaking the state of his uncertainty, and we again quote:

"if exhibit P.2 is put with others of this type, I cannot say it is mine. What I saw is

that the sewing machine head stolen from my house was Simanco make". It is highly

improbable that he B was the only person who had acquired a Simanco sewing

machine head in Kondoa. And it is to be observed that it was not PW.3's allegation

that the appellant had intimated to him that the sewing machine which was lying in

the bush had been stolen from the house of PW.2.

We respectfully think that the identification of exhibit P.2 by PW.2 came short of the

C requisite proof and we, therefore, agree with Mr. Alimwike that there was no

proper occasion to invoke the doctrine of recent possession in this case.

In the final event we sustain the last ground of appeal, which is that having regard to

D the totality of the evidence on record which was wholly circumstantial, the guilt

of the appellant was not proved beyond reasonable doubt. We accordingly quash the

conviction and set aside the sentence, and we order the appellant's immediate

discharge from custody if he is not otherwise lawfully held. E

Appeal allowed.

1992 TLR p16

F