19780607 TZHC Mbeya

• ,-'. -•.4•.-•. - - 4'.'-. . _______________ C IZ) Q IN 9HE HIGH COURT OF TANZANIA AT MBEYA c APPELLATE J1HISDIC TION H IGH COURT CRflIIINAL APPEAL NO • 1 OP 1977 ORIGINAL CRBIINAL CASE No.27 OF 1977 ( OF IBE DISTEICT COURT OP MEOZI DISTRICT AT MBOzI) BEFORE: P.M.K.I/MAWIAJA,ESQ., ISTRICT • MAGISTRATE. • ,.,.,,,....APPEILANTS - 2 STANLEY MGALLA (Original accused) verus •.-. - 1HE REPUBLIC......... S ........................PFSPOIDENT • (Original Prosecutor) - CHARGE: Shop breaking and stealing c/s 296(1) and 265 of the PerixjlCode. JUDGMENT SAMATTA, J. r millions of the people in this - country the night of 29/3 0 th January,1977, was an orinory njht. The tmosphere of peace reigned in -their hones, The law had succoafully ed then against the activities • of the anti-social elements in our society. One Simon Ally, a resident of Nanbinzo village was not so lucky. - About to hours after January 29 had given way to January 30 his hone was tum,c1 into a scene of terror. What happened ? According to the story whjch:he unfolded- before the ojstrict court of Mbozi district, at 2.00 a.m. Simon -Ally was confortcb1y asleep in his bedroom. Together with him in the bedroom was his wifo His young brother, who is a teacher by profession, was in a room which sees as a shop. He was also asleep. At that tine the thr-e were awakened by a big bang on the shop door. A big stone had been flung against the door. The door could not resist the. force appliedagainat it. It go -t broken. By any standard it was a terrifying episode. What wac the reaction of Simon Ally and what followed thereafter ? I propose t o toll the story in Siraonts own word - "1 woke up, took a torch and flashed it outside. When I was going out from my own I saw Stanley; the 2nd accused, who had a hanmr - in his hands. He h.:ncrcd me on my ho-ad. •I fl1 • down. My wife and young, brother cried out. I woke up and byiing my torch I sw the first accused in my house...... . ... . . • .2.. I -2- • in my house as well. He had a stone in his hands0 We all cried out for help6 My youn brother trickly called out. "Bring a pistol, bring a pistol". • When the.accuscd persons hoard this they went outside my house. We closed the door inmeciately. Iter on they came back and stnigglcd to re-open the door. As they failed to re-open the door, I heard them 1.reak • the windows. They broke the window andes the bed was near my winnow they manaa:ed to take the money • which was hidden underneath the mattress. I went to the room y flashed the torchand could see the two accused at the window standing. The•2nd accused had my money in his hands - danh l,lOO/=. later I saw something like a firearm pointing at through the wifiAow. They ordered us to sit down 1€-st we be killed But we raised an alarm until people came When the pcople caine there the accused persons were nowhere to be seen". Simon claimed in his evidence tht he had tontionad the names of the assailants to the people who had responded to the hue and cry, but on this ho was not supported by Etson Msangawalo, who testified to the effect that Simon had mentioned the names of the assailants for the first time when he (Simon) met a. Ward Secretary on the following day. The evidence of Sim onts wife and brother otherwise substantially devetailed with that of Simon. After tho incident had been reported to the uuthorities in The area, hc appellants worm arcs ted and charged before the district court of Mboi district with shop-breaking, contrary to s.296(l) of the Penal Code. The particulars of the offence were couchod in the following terms.: ?!Th c two persons are charged jointly end together That on the night of BOth day of Tanuary,1977, at about 02.00 hours at Nrnbinzo villeac, within thu district of Mbozj, Mboya Region did break and enter into the shop of one SIM0 S/0 ALLY end stole therein cash shs.1,100/=, the property o Simon Ally". It will be readily noted, from th evidence narrated abovo, that the particulars of the offence veru wronr;. The shs.1,100/=had not boon stolen from the shop; rather it was stolen from the bedroom. It was common ground t the trial that the first appellant, Pius Botaoma, was the neighbour. of Simon's. His houses sitmtod about thirty paces from Simon's house. It was also not in dispute that.Sirmn end his wife lmow the second appellant be fore the night of terror. Each appellants set up a defence of nlibi. The first appellant Clij :c: that he was in his house on the night in cuestion. At about 2.00 a.rk he heard noise . . . . . .. . . . . . . . 3. 0 t.1 11r).rd n)iso of 1)rrr; :--t c}c)ui. orir;±ntitij: frozi SimuU'3 house. A short interval later, t1 wife of Simon cane to his house an1 informed him that their house had çon invaded by some people. Together with other villagers he went to e house. There he asked Simon whether he imew any of the thugs, bu Simon replied in the negative. The appellant's witness, one Mariana d/o Nambuye, another neighlour in the loca1iiy, supported the story that the wife of Simon had goneo the house of the appellant to nfom him of the brutal events at her house. The seconft appellantts starT was that during the time when Simon's house was being invaded, he was on a mission, with other people, of looking for a fellow-villager'3 wife who had eloped. Several witnesses supported this story Having sunmiarised the evidmce before him, the learued trial magistrate proceeded to deal wte the issues ralsed. by He said: "From this evidence, it is not in dispute that the complainant shop curn &ielling house (sic) was broken into. That two persons enterid into the house. Lhat one nact a hammer and another witi o7 stone in their respective hands. That one with a hammer lid haaxner the complainant on the head causing him to suffer a wound or injury as stated in the medical report - &.?.l. The two points for decision is whether or not the two acused persons were the persons who entered into that house ard stole the money cash shs.l,1UO/ as claimed by the prosecution witnesses. It is not in dsaute that on that very night the -ompainant was asked if he imew the persons who broke into his hoiise and he agreed. But be never mentioned their names. He said he did so for feai that he mightbe haned if he dd mnion out those names at That night. But on the follwisg rorning he did mention the two accused persons". - I interpolate there to point out that, athough it wou1C. appear to find some suport in the evidence of Etson M ngawae, the finding by the learned trial magistrate that Simon had not' disclosed the nes of is assailants to the people who responded to the alarm flies in the face QI the evidence of Simon and that of his (Simon's) wife. In exaninti - in—chinf Simon said, inter alia: "I informed the people who caine - there that the thugs who entered into my housC. did not come far away. They were people from our village. I mentioned Stanley and Pius. I also told my fellow villagers that the other people who were outside were not imow o - iie That evidence tallied with his (Simon's) wiios evidence.. • • • • •, • . . •.. . . .4. r- v —4- v1.dene. She said: "We did tell those people who Caine there that those who wanted to kill us were Pius and Stanley. But the accused were not followed on that night at their places." The learned trial magistrate gives no reason in his judent whyhe did not accept that evidence. The learned trial magistrate went on to say: u The first accused is said to be the closest neighbour of the complainant while the second accused also come (sic) from the .same ward with the complaiant thongh in different irillages. The three witnesses, P.W.2, P.W3 and P.W5(Simon, his wife and his brother) testified in court here how they savi the two accused come into their house. Their evidence was indeed very consistent'. Ther all said they managed to recognise the two accused by the light of the flashed torch the complainant had. All 'mentioned the second accused as the person who hammered the complainant on the head. As to the first accused they said he had a stone but did nothing with it. All these witnesses said besides the two accused also entered into their house, there were other persons outside whom they said they did not know. Though the matter happened at night time I em satisfied that by the light of a torch flashed in a house, the witnesses could well see who were the persbns who entered into their house. After all, from the evidence given, the wo accused were-not strange to the three witnesses who were in that housee The second accused was well known to the witnesses vihlle the first accused lived just about 30 paces from the complainant's housed So 'the three witnesses who imew well these accused persons could not have mistaken their identity' With these evidence (sic) I an satisfied that the two accused were the vary persons who entered into the complainant's house on that night after breaking the door. That after they had entered the second accused hammered the complainant on the head with the harmer the second accused had." Having made those positive findings a;ainst the appellants, the learned trial magistrate proceeded to deal with the defence of each appellant In the upshot, he rejected both defences as false. That approach, with unfeigned respect to the learned trial magistrate was utterly wrong. The learned magistrate should have reviewed all the disputed evidence e2o'e him, including.tho defence case for each appellant, before making any findings on it. i --t' - .n thL. uo. '2 - nalysing to:efence case after positive findings had' already been made against the appellants ? I can see none. As was..,....5. S I. t•It) —5- As was recognised by the learned trial nngistrate 1 the prioipol issue in this case was one of identity of the assailants. Simon's wife asserted that the night was a moonlit night. But this piece of evidence is a solitary tree in the forest of the evidence on record. Vere Smaon, his wife and his young brother witnesses of truth ? Both Simon and his wife expressly claimed that they mentioned the names of the appellants to the villagers who gathered at their house in response to the alai they (Simon and his wife) had raised.. But there is a yawning gulf between that evidence and the evidence of Etsbn Msangawale and that of Simon's young brother. The two witness expressly said that the names of the appell- ants wore not mentioned to that villagers on the night. The testimony of Simon's young brother on that point reads as follows: TrJe never nentioned the names of the accusad persons to the people who gathered there. But we mentioned the names of the accused persons to the Vard Secretarj." Though there was that material dishcinaony in the prosecution evidence, surprisingly the learned trial magistrate made nbt even the slightest attempt to resolve the contradiction. Having not bsd the advantage which was enjoyed by thp learned trial magistrate - that f observing the winessest demeanour— I am unable to sy which of the wo versions bore the stamp of truth. Mr.Tukunjobri, counsel for the appellants, strenuously attacked the icarned m.gistrate's decision as one which was not warranted by th-c ovicncc on record. In support of his submission.he referred me to the followina identity.ceses: Elias Scato, (1960)E4A4174; Indoviko s/o Icnsheki (1967) H.C., n.194 end Rep. v Alli (1971) H.C.D. n.306. Mr. Mwonyiko, counAci for the Republic, contended, on the other hand, that the evidence touching upon the identification of the appellants was a safe basis for convictii the appellants. To support that contention, he referred me-to the ecison of the Court of Appeal in Waswa Damashi and Two others, .(Cr.App.No051 of 1975- not yet reported). I have gone through those decisions. It is not out 01 discrespect to counsel that I do not feel inclined to discuss them in this judgment. In my view the errors in the judgment of the learned trial nagistrao which I have pointed out are incurable vices in the circinotanc a of this case. I would allow both aapoals. - - - -- B • A • SJLA TTA, JUDGE. Q1DER: The appeals are allowed, the convictions are quashed and thc sentences imposed thereon are set aside. Unless their liberty cause, is being assnilcd in connection with any other 1awfl the appellants to be set..•.............6 - - -- -6— to be set at liberty forthwith. B.AQSAMATTA, JDDGE • Delivered in Oourt this 7th day of June, 1978 9 in the presence of Mr. Thikunjoba, cothasel for the appellants, and Mr.Mtaki, counsel for the Republic.