NA TZHC DODOMA3

.:_.. · INTttE HIGH COURT OF TANZANIA AT DODOMA'. ·• . : (PCJ CRIMINAL ~P:PEAL NO. 3.0F 2011 ·', · · .-.~ .•.. (from the.decision of the District Cdurt ofKondoa at.Kondoa in Criminal Appeal No. . . • _:- •!·,-. ::.;·/-;:>:;.·.. ~_ .. . .. .. • ,.>.... . :. :._·:.' ,•. :- . ·. .. . . < ;,<·t\;J.2 of 2002/ Original Criminal Cafe No., 245 of 2001 of KwamtoniPrimary Co11rt) : ., , ·" .· .. _·,•1~. CHUYO MCHIWA< ·1· ., ,... , · · ... · . ·. · ·. :/2.ROBERT CH~-WAZA' -:~■-■■-.1..u.•u•■~•··••u••~· .•..:...... . .APPELLANTS •, • ••.: ' ' ~-~:~(, • • • .' ; • • •. •. ,, •.. • • • I ' • VERSUS .. · .. .NlEDENGWA NGAYONI u.~:......................:~~•RE~P:~NDENT ·. ,,_. . ' JUD~EMEN:t" ·\, 08/6/20i1 & 17/6/2011. KWARIKO, l: The appeHants. herein had been arraigned before Kwamtoro Primary Court with the"bffence ofRo.bbery c~i,frarY: .'' ~ ' \(! ·:'., ._,.. ' ' ' to sectio~: 285 and 286 of the : ,' ', Penal Code Cap. 16: VoL 1 of:the Laws. It was alleged by the prosecution that the appeU~nts had on th·; iO :day of December, 2001 at about 10.00 th pm at Magungu Mpendo village within Kondoa District in Dodoma Region jointly and together stole twenty three (23) cows, five (5) goats and seven (7) sheep all valued at Tshs. 801,900/= the property of NJEDENGWA S/0 NGAYONI and blind folded, tied hands with ropes and assaulted the 1 'complainant. and hisifa:fnily members i~ order to obtain and:}etaln the said prope~. . : .. ' . . .. .: . . . .. . . . :,- ;;. . ·, . . . --_. The appeUanr had deriied·'::::/~e charge and after the trial ·was------- cQncluded th~y 'tv'_~re both found ·goilty, convicted and sentenced to thirty ·-years imprisonmeht-each. _ ·. . '!', . . . . . . . :_. . ·.. · . ··.· .·· -· ..The '· ·.-· facts of the case born -outof the evidence at the trial re:v~al ·.:'- .· ·. ,· that on /the·_ material night while •- the complainant< NJl:DENGWA S/0 NGAYON I (PWl) was 'na~lng supper with :family: rhe~bers about twelve ( 12) thugs /Who had torches directed · to them invaded them and were ordered to lie down where they complied. They had their hands tied and were blindfolded while their clothes and beads were taken from them. PWl's father and his wives ~ere similarly . ,_.·. invaded and all the family ·, members were guarded into the bush where·:* sheep was slaughtered and ...,.:.· were forced to eat its . raw ' intestines. -. Then .. three thugs remained guarding . •- ,.' them until 4.00 am:· When theyJelt the place was quite they unfolded the . , blinds and raised alarms_ where village mates responded that included KABANGO CHIPANTA (PW2) and KUHAYA SEKERTI (PW3). PWl's father was found severely injured by the thugs and was sent to hospital. 2 .. . .. ... . . . The co:mplainant and ;co.lleagues ', ?tarted i'r~llowing foot /and hoof prints tothear~-a-~whereth~Yfound one persqn if{the'farm and they:fdfc~d ... , , himto teH them'-~bout the stolen' cattle. Thatpe~so~ told them that he had<'._·. - . . . ~--, : .. st seen. the 1 appeflqr1t: . ·. ~ :CHUY.O . '. . . S/Q:MCHIWA '; . ... . . '. with fire in the farm hence he'··.::. .' ' . : •. ' . });was .. directly suspected-/That the prints lost at Lukali village and the. search . . · ,:_.:· . 'pa,rty . decided to . retur_r, .. hometo . . . . . take care of PW l's father. . . . :. . . .. The search party/convened again on 15/12/2001 . . . ~ and this time .they . . directly ·went to pursuethe l st appellant who upon arrest admitted that he wal'ariiong twelve cattle.thieves and said that his part bfthe loot (eight (8) tows) was being k~pt at the . ,2 nd : appellant's .home. That they had ; '· slaughtered one cow and-they found portion of the meat in his house. The party w·ent to the 2nd appellant's home but they found him and the cows in the bush and had a kraal made for them. He said the cows had been brought there by the 1st appellant. There were seven or nine cows and one , , had been slaughtered while among'. them two did not belong to the complainant. The appellants were sent' to_ Mpendo's Ward Executive Office and . ·. then to Police on 17/12/2001 where they were accordingly charged. In his defence the· 1 st appellant denied the allegations and accounted that while at home at 8.00 pm on 15/12/2001 three people knocked his 3 , ·, ....,: house and ~hen.'·he :responded. tbey·restrained him and'severely:beaten . him \.A/here:th.ey.forced:him tO showMze~· Chiwanga'shOm~.:Th~t;-he lect ·.... th{~eopl~to Miee·c~hiwa~ga's ·whe~ethe 2nd appeUant was~a~~ested._:Th~':::- ·_. 2nd appellant also test.ified ' ' ·. that he ~as arrested at 3.00 am on 15/12/2001 . ', ' , .. where thel st appellant . . . was with. ·•. . .. the arresting team. He denied;:the .. . :, ' ~ . : ,illegations :.:'·. ' ;and .. th,at . . he saw . •, the alleged cows at Mpendo Ward Office. . ' He .' ., '• complained· thatthe d1arge was. not proved since the local area ieaders from M~endo . . a~d his,viH~g~ . '.··· . . w'ere n~t called to testify on the allegations ... .·· . . . . againsthim. ·· ·-:·-. The trial courtfound· that the prosecution had proved its case to the . . . .. .. ' . .·_· standard required in law. since the 1st appellant admitted the allegations, . . . . . mentioned th_e: 2 .appellant: t6 have been kept the stolen cattle and that nd finally was found in possession of the same. That, since the complainant did not know the appellants before there was no possibility that they framed up the allegations. They were convicted of Armed Robbery as there , ..... was a use of a Machete (sime} during the . incident. . . ;· The appellants unsuccessfully ·apbe·aled before the first appellate district court. In dismissing the appellants' appeal the district court upheld the trial court's findings. 4 • ···:....;_:<·:'.,.( ... ··· .. -·, . .,-,. ~:. . Thus, - this is_ a second app~al ~wh-ere .the appellaqts·-·filed separate grounds of appeal- Which es~entially complain that the pro~ectition cas·e did not provelhe case ·agai~sflh~rn:.beyond reasqnable ~oub~. -·: . _':/ ,. _:: ·, ,:_. ... When the. aPp~al Sas ·called' for• hearing. the· respondent did not ·_.- ·..ijppear. anc;I efforts;to trace him had been made. in· futile hence the Court -_ .- >~;d·~:red -the .app~al :hearin"g. to proceed in his absence considering that the - appellants :are prison~rs and had been in incarceration since January, 2002. _ Thus~ the appellan~ ciid not add anything useful during the hearing ofthe _ - appeal. They onlyargued the cou~ to allow their app~al. . :: . ,' ~ : ·. : . . This court has considered the grounds ·of appeal and gone through . -~ . . ·.. the lower courts'·· record and find that the issue to be decided here is; whether· the prosecution case against the appellants was proved to the standard required in law. . . . ' I would like first to respond to one:-of the· appeUants' complaint that . -· . : < :·:.:·.:. . . the prosecution evidence_ did not prove that :·they were identified at the ,- :·,:·- '· · .. ·-·:-. . scene. I have gone through the evidehtti{by the prosecution witnesses at . ·:.':",'. the trial but I did not find where they· had testified that they identified the appellants at the scene. The witnesses only testified that upon follow-up of the cattle they suspected the 1st appellant and when they arrested him he nd admitted the allegations, mentioned the 2 appellant and the cattle were 5 0 • and.Jt is, hereby ~ismissel ·:. . . . . . . .. . is fo~nd: in possession ~(the. 2nd appell~nt. th:us'this complaint unfo~nded However,.· i. a'gree; with the app~Hant~ that· since the prosecution , :·:·evi:dence . -·- b~:sed ··o~·Jh.e ,. . 1st appellant's alleged .: ... confession, there ought to have·. been a .written.·, confessfdnal . . . . . statement to that effect. Sirice the appellants we·re. sentto. P.Olice 'and if there had been any admission of the allegations I belleve the.Police must have reduced.: it into w·~iting and in accordance to the \VeU lied down legal procedures:Surprisingly, there ~as , ·_•· 110.;any, shch written confossion and actually no any police officer testified in cocir(to· prove howth,e\appellants -were implicated with th~se allegations and to explain what' ~rornpted them to take them to court. What I gathered from the prosecution is that; firstly, the 1st appellant . . was suspected after one person who was not called to testify had told the cattle search party that there was fire in the· l st appellant's farm. This was a very serious misdirection since suspicion how,eve'r ·,strong cannot take a position of proof of the charge and .l1~; hof:suffi~ient evidence to convict (see HAKIMU MFAUME VR (1!JB~) ·, . TtR 201f There was no proof on ' st how the alleged fire in the 1 a·ppeilant's . farm was. related to the stolen cattle or his involvement in the robbery. 6 .. · .......... ·.· .. :.· ,• .. •,·. . ..... ·...·.·;~: ',. ~ •, \ .. : ·.· .... .'· ... . . .. · · . , ' . ·... :.-,·... :secondly,: the -ali'e~j'ec:i" ·barbetj:Lied. me:at and cow's< i~t~:iti~~--:.:~hkh'.- -:::·: ·.. · .. : were:·-:·safd tq:-,h~vE(be~n:·.Oio:urid· in ._th~- -1 st ·_ ap.pellant's·· 'house. i~re<ri6~ ·.. - ;;.~:tendered in·;co(i~I~---pr6ve:th:~:-c·h~'.rge:.·.~ga\n?t him;.not even any rnventb_~-- -... ,.- - ··:<fc>r-.t,h~ m_eat;_,~-~ff~-~:d~~~~ ,. ,•. .. .. \n:·court to th~t-~ffect had the same been·fo~~d. /,•, . · /:··=::..:: . perishable· and_ destroyed before-th~ trial. Thus, thi~ .piece of evidence did · =·· · not 1Jg'a11y· connect the. 1st: appe.llant with the' charge: .. . - ... : ; ·,. . . ~- . .... •' . .. . :i -:.J\1$bj the -prose~utiq.n's failure· ·to .parad~·-· to court the local .area leatj~•ris':\r~here:::th~-----~ll¢~ed .cows were said. to· ihave_- -b~en··, °found in po~:~,~~~i'on of th~ 2nd .~~pellant· negated_ the ·case.-'a·g·~i-g~t him since there needed to be a corro~of1t;v~~-eviden~e fro~ ·them. The search party also ought to h.av~ . . r~~brted· :tc/-th@.,:--loc~I leaders or the police soon after they :·t ... had got information that the 1st appellant was involved in these allegations so that he could have been pursued accordingly; more so because they had five days ahead before they arrested him from t~e date they had received the information that· he was a suspected thjef A search in his house could have been therefore con_d:uct~~y-·in accordance with the law. This omission did nothing but to create-doubt to the prosecution's account •··. ·.·.'· ·. . •.· of events. Coupled with the above this court finds that the alleged stolen cows' identification had not been proved before the court by the complainant. This is so because the same were presented in court before the trial commenced and thus the complainant had not even given his evidence to 7