19841201 TZCA Dar es Salaam4

...... ~ t:)li-..,.,,,,_.,_,, , IN THE COURT OF APPEi\L OF Ti,NZANIA AT IVIWANZA (CORAM: Nyalali, CoJo, Mustafa, JoAo and Kisanqa, JoAo ) CRIMINAL APPEAL NOo 59 OF 1983 BETWEEN ) BUSIKA s/o KYARUZI ) o o o o o o o o APPELLANTS O O O O O 0 ABDU s/ o i-lBAS ) A N D THE REPUBLIC O 0 O O O O O O O O O O 0 0 0 0 0 0 0 RESPONJENT (Appeal from the conviction of the High Court of Tanzania at Mwanza) Munyer a, Jo ) dated the 15th day of June, 1983 JUDGMENT OF THE COURT This is a second appeal arising from the conviction of the two appellants on a charge of robbery with violence an1 thee; sentence of seven years' imprisonment.. We have to point out at I \ the very outset that the case was very poorly handled both at the trial court and on the first appeal. The recording of the evidence was done rather casually and the appraisal of the evidence and the manner of determining the issues involved by both courts left a lot to be desired o · Essentially 1 the case for the' prosecution was that: During the ni(Jht of the incident at about eleven o'clock the two appellants and one other person who was a co-accused at the trial and who has not appealed, jointly stole various items of property including shso 300/- from a woman complainant, one Margaret. (PoW 1) 1 0 and that in the course of such stealing the appellants and their co-accused assaulted the complainant and her room-mate, one Rosemary _(P.W.2) 0 ,1 oooo/2 .,. 'J " 2 In support of the charge, there was the evidence of the two complainants, P.W.1 and p.W.2, to the effect that on the material night the co-accused, who has not appealed and who was referred to at the trial as the first accused, broke . the door and entered the room where both complainants were sleeping,. Both apoellants folloflil'ed anJ. also entered the room .. Then the three intruders began to beat up the complainants, demand money and to threaten them wit.h a knifeo As a result P.W.1 directed them to where she had kept some shs. 300/- and they took it. The first accused then collected a number of clothes and took them away. The complainants raised an alarm and people came who arrested the firtt accused with the clotheso i'he two appellants, however, succeeded 'to run away but wer,? arrested la tero Then there was the evidence of Hussein (P.W.,3) who lived in the room adjacent to that of the complainants. He claimed --1 \ to have witnessed the incident as narrated by the complainants but went further to claim that the appellants and the first accused also raped the complainants~ And, finally, there was the evidence of the police officer Revocatus (P.W.5) to the effect that after both appellants were arre:sted by civilians, he sea1;:ched the appellant Abdu and found on him shs. 300/-o The witness was then informed that the appellant Abdu was wearing a, jacket at the time of the alleged incident but he had no jacket on at the time of his arrest,. On being asked, the appellant is said to have replied that he kept the jacket at the guest house where he was lodging. The police officer claims that he sent the appellant with someon2 to the said lodging where the appellant showed that person the 3 jacket and he took ito The said person who is alleged to have recovered the jacket however was not called to give evidence nor was fue said jacket put in evidence~ In their defences, both the appellants stated that on the material night they had left the bar to return to the guest house where they had lodgedo The¥ were accompanied by two girlso Appa"rently, they had arranged with these girls to spend the night \ at the lodgings and so somewhere on the way the girls went to lock their rooms and bring khangas while the appellants waited for them 0 While the appellants were thus waiting, they heard shouts following which people came round and arrested themo The appellant Abdu was searched at the police stationo Although he had a total of shso 1,370/-, the police took only shsa 300/- which they treated as exhibito The appellants denied being in the company of the first accused on the night in question or knowing him at allo I In convicting the appellants the trial magistrate, inter \ alia, said: "I ha~e physically (sic) perused the evidence of both sides o., o the second and third accused persons (present appellants) confirmed that they seduced the complainantso o•o The third accused was mentioned to have been wearing a jacket which was later on discovered. in the lodging after he has (sic) shown it to .the policeo Also on searching him he was found with shso 300/- which the complainu;--:.ts alleged that they were :their moneyo Their a llegatio1·1 was supported by the finding of the money and the evidence of PoWa3a From the circumstanc~s emboding (sic) this case I am bound to agree that the circumstantial evidence leads irresistibly that the accused persons did rob the complainants as alleged .. 11 ., There is no evidence that the appellapts confirmed that they seduced the complainantse On this point the appellant Busika ,. in his defence said:- oooo/4 4 "I failed to secure transport to N<guduo I decided to sleep here (Magu)~ I got a lodgingo I then I went to one bar and later on I got one woman .. ' :t After the bar had been closed, I went with her 0 She went to close her house and bring one Khangao I had the third accused (Abdi)o There were two women and we were two of us o"., In cross~examination by the prosecution, he went on:- "Before that time I .did not know those womeno Even those witnesses were not known to me.,"o And the appellaht Abdu said:- "We decided to sleep hereo We obtained one lodging t<::> sleepo We then went to bars to drink .. We met two women., We talked to them eventually we came tb mutual agreement., They decided to go to take ttheir khangas."., In cr6ss-examination by the prosecution he said further:- "I didn't know all the witnesses beforeo"o This is all that both appellants said about the women with whom .·. t they had dealings~that nighto But even mak;ing an, ,a llowane::::e .for the poor recording:qf t_he evidence, it seems fairly:apparl;!nt that the appellants: are ,.ref~rri,n.g ,to some two women who, however, ., are not the complainants in this caseo This was confirmed .. 1'; ·: :: • :- _1 ' " by the appellants who, being unrepresented ·in this appeal, appeared in per~9,n,.be£ore us., , The trial, magi.st-rate thE;refore mis_d~rected hi~s,elf.• on th~ ~Y.idence to the extent that he found that the appelrHmts :had: d.eal,j;ngs _with" the. compl94"nants _on the : ~- r.:•... ! ~-,, ~~J, night in questiono ; f:i..e, _equal:ly,}flisdirec:;t~. h-:i,.Ill~el:f ::_qn hi$:,:,. 0 stated earlier, :the, ,perspn a,l],eged t_9_ .h8 ve recovei;-eq" . . the alleged j9f~ket_ w~.s not callqd and. the jacket i tse],:f. 119:s never put-. in a_vJd,enc.e or,.p~oy.ed ;-in,any wa,-y as __ being:;tha,t_:o:f. the appell3nt Abclu., • 1.- 5 complainants. The appellant had claimed this money to be part of a total of shs 0 1,370/- which he had on himo The trial magistrate did not consider this aspect of the appellant's evidence, to say whether he accepted or rej,ected ·i to As it is how, it is possible that the shso 300/- is the property of the appellant, in which case that money cannot be taken as providing a link between the appellant and the offence chargedo Finally, there was the evidence of P .. Wo3 which, ' according to the trial magistrate, supported the allegation of the complainantso The trial magistrate accepted that evidence on its face value without any scrutiny at all to decide whether Pi>Wo3 was worthy of credit.. For exarq,pl~, PoWo3 claimed that th0, appellants and the first accused raped the complainantso But this was not at all suggested by the complainants themselves., Had the magistrate scrutinised closely the evidence of this witness, he might not have accepted _his evidence on its face ~--:.) value as he dido These misdirections and non;direction by the trial magistrate were not put right on the first appeal .. Indeed, instead the learned High Court judge compounded the matter by falling into a further err.or., He rightly recognised that the issue which was before him was ,Y'lhether the two appellants had been sufficiently identified that night as the persons who participated in the commission of the offence chargedo Mro So Kidela 7 the learned State Attorney who appeared before him, took the view that the identification of the appellants was doubtful anj therefore he could not support their convictio,1. Rejecting that submissi'on, however, the learned judge in his judgment said:- eooo/6 . 6 "But the onoellants told the trial court that during th~t night they had love dealings with the two women ( P .. W.1 and P. W. 2) o They said they chased the two women and agreed to go with them. That being the case then i t was inconceivable for th8 two women not being able to identify their lovers. I agree with the finding of the trial magistra·te that the appellants were in fact in the room of the two women.no /,s stat>'-:d earlier in this judgment, the appellants did not say that they had . any dealings with the complainants, that is, P.W. 1 and P.W.2 in this case. The true position is that the a.ppellant s· id that they had dealings with some two women. who, however, were not the complainants in this case. The learned judge further misdirected himself in finding that the two appellants stated that they were together with the first accused when they were dealing with the women that night. The relevant part of his judgment reads:- "In their defence the 'first appellant (Abdu) stated) that on that day he and his two friends had seduced the two women (P.W.1 and P. 14o2).". But the appellant Abdu did not say that he was with the first accused. All he said was that he was with the appellant Busika and that he only found the first accused at the police stationo . Thus, because the learned .judge wrongly found that . the a ;.)pellants were together with -the first accused and the complainants that night, this caused ,him to arrive c1t the wrong conclusion that since the first accused was found, in possession of the complainant rs clothes, then the appellants must hove acted jointly with the first accused in stealing those clothes. The result of a11 these misdirections and non-direction is that the findings of both -the. <;:ourts below were not founded on the evidence which was before themo Had both the courts below properly directed themselves on the evidence before them, we feel certain that they could not have come to the conclusion which they dido ,, <> o oo/7 - ..... 7 • ll 11 i' IiII Ii \ 11 \ 1\ ' ;I I <I"