19870819 TZHC Mtwara

IN THE HIGH cou.aT OF TLlJZP,1\l"IA AT l'liTUARA. . ll.PFELLATE JUR=C8DICTION HIGH COURT CRir-1IHAL AP:,?EJIJ., N0.66 .OF 1985 Original Criminal Case ~o. 68 of 1982 of' the District Court of' Mbinga Distr;i.ct a:f; Mbinga Before: A,. Y • Ki bona Es:4•, . Distr~ct Magistrat-e BARTAZAR ffiJGSEIN KAPI:NGA ·.• • • •• •. APPELLANT . . .... .. . ....... RESPONDENT Versus THE REPUBLIC ~ ~ ~ RUBAMA, ..~:, • Bartazar Hussein Kapinga was with five other people charged with four counts under the Penal Code namely burglary contrary to section 294(1), stealing contrary to section 265~ house ,breru~ing and stealing contrary to section 296( 1) and lastly attempted·: robbery contrary to sections 287 and 381. He was found guilty of' the offence of' attempted robbery convicted and sente- nced to five years imprisonment. He has·appealed against both the conviction 2nd sentence •. The evidence that was f'ound credible and accepted by the trial court was that the· appellant was identified at the scene of' the crime by four people: Faus tin .·· ::_ Alexander PW.2 his wife Ignus Komba PW.3, PW.2 1 s second wi:fe ·Def'rosa Mb.epera PW.4 and la.stly Alexander Mkoma Pw.5. Faustin Alexander PW2 had testi:f'ied.-th&t he was the Nchimbi village accountant e.nd that in this capacity he used to keep one· of' the keys for the village saf'e. _j . 2· . - On 25th October., t982he accompanied by two other people had :withdra'\-in. from ,the ·National Bank of' Commerce Mbinga Branch shs·._536,559/20 which they kept in n, s~'.3.:f'e: ready f'or payment· to· so·me deserving peasants on the 2_6th of October, i9e2·. . On -the night of' 25th of' October·, 1982 however his· house was invad,ed by six people who had demanded·f'rom him the village safe key. Faustin Alexander PW.2 had further stated that as there was sufficient light in the house eminatin~ from a lighted lamp and several torches that hnd been ·flashed l:>y the. people who had invaded his house. he had managed to identify al.:f_ the six people that demrmd.ed f'rom him the village safe key. The appellant, the'witness had stated, was amongst these six people. The testimony of' Faustin Alexander was conf'irmed• by that· of' Ignus.; Komba PW,.J inside whose house PW,;2 was on this fateful night spending the night..' She too maintained that the. appellant was amongst the people who had invaded their house on the 25th October, 1982 dem'anding the villa;g-e saf'e key. Dafrosa Mbepera PW ,.4 co-wife of PW ,.-J whose house was situated near that of PW.J confirmed the testimony ;•of PW• 2 on the identification of' the appellant. She had testified that the appellant was amongst the people th~t had broken into house of PW,J on the night of 25th October, 1982. She maintained that with the . assistance of moonlight and torches she had managed to identi:f'j'·the appellant at a time· when he {the appellant) was taking a "Kinu" which was later used in the forcing open of' the door of the house of Pw.3. PW.4 maintained further that the appellant was a son of· her uncle. Alexander Mkoma PW.5, father of Faustin Alexander PW,...2 1 had responded to the raised alarm for asstat~de by PW.4 Dairosa Mbepera and had been the first :to arrive at the house of' PW. 3 •. •••• /3 -- 3 Alexander Mk.oma PW. 5 was carrying ::-. bill hook. which he he.d used for the defence of P'.-T. 2, PW. J. and PW. 4 ' against the invading ttugs. He i;~o testified that he· ~ had identified the c.p::_:)ell2.I1t as .one of the thugs tha:t'-. had been to the house of PW.3 on the night of 25th October, 1982. Faust in Alexander PW. 2 was injured.- on· the·. head during the fight that had ensued the invasion of PW.J's house. He was taken to the hospital and the report made to the Police. B.51-61 D/S'gt. Alf.once PW.6 who had· investigated this case had testified about ~he report made to him concerning the attack o:f PW.2 and the .. demand from him for the village safe key that had been made to him by his attackers. Out of the people that had been mentioned as having participated in this vicious ·etd::b;ck·· the· ·n.-ppellant '·.s. :. name had not been mentioned: ;this notwi that anding the fact that the report to ~he. Po1ice was made few hours following the attack i.e. on the 26th October, 1982 and the :fact that the appellant .. by admission of' all the four identifying witnesses was a neighbour ~.nd further that the appell0.nt was related to Dnfrosa Mbepera PW.4. The appellant in his defence had denied having been one of the people that hr::.d invaded the house of' PW• 3 on the night of 25th October, 1982. He had raised a def'encc 0£ alibi maintaining that on the night in question he had been away motor cyling towards Mbingc1 Minor Settlement on a borrowed- motor cycle· 1-Ti th which he was later-involved in an accident and got a head injury and · some bruises. He called defence witnesses in support o:f his testimony. Paeencis Matia DW.2 confirmed the appellant 1.15::·defence stating that he had lent a motor· cycle to the appellan.t on the 25:th October, 1982 and that the aP,pellant hnd gone to his house between 9 and 10 p.m. on the same day asking to be taken by PW.2 to Litembo Mission Hospital f'or '.treatment for the injury he.had suffered following the motor _cycle accident • .... /~: 4 ... Ber.:mrdeta X~pinga DW.J, a nurse at Litembo Mission Hospital, hnd testified th2;t on 25th October 9 1982 at about 12.JO p.m. he had received 2nd treated the appellant. Faustin ICapinga DW.4 a brother-in..;.law of the appellant testifiaid th::::.t he had been in:formed by DW.2 on the night of' 25th October, 1982 that the appellant was hospitalised at Litembo Mission Hospital and that he had visited the appellant on the morning of' 26th October, 1982. Mr. Kapinga who had argued the appeal q.ad · submi tt.ed that the prosecution had :failed to prove its .case agains·t the appellant beyond reasonable doubt• , ·.He maintained that the appellant could not have been· properly identi:fied by the four identifying witriesses as having been one of' the people who ·had taken part in the breaking o:f the main door of' the PW.J's house.end who had rushed to the bed-room o:f Pw.·2 and PW.3;: attacked Pw.~:a:rter having failed to "peace:fully" ·obtain the village safe key from the said PW .2 •. ·Mr •. Kapinga further argued th&t the appellant's defence which had been corroborated by DW.2_, DW.3 and DW,4 had not been adequately considered by the trial magistrate.. Mr •. •. Kapinga submitted th~t the o:ff' hand dismissal of the defence by the trial magistrate merely because the appellant had not reported the motor cycle accident to the Police ~nd could not mention the name of the driver of the motor vehicle that had gii.ven him a lift :from the scene of his accident were not good enough growids for rejecting a corroborated defence story.· In d9ing that Mr. Kapinga.submitted the trial magistrate had shifted the burden of proof from the prosecution to the defence. Mr. Kapinga :further argued the.t in law t,here was not enough evidence to establish the offence o:f attempted robbery because the village accountant PW.2 had the money that had been withdrawn on that very day o:f the alleged attack safely deposited some two miles away f~om the scene of' crime. . .•• /5 I find merit in the argument by !J.ir,._Kapinga, defence counsel th~t the prosecution h~d not established its' case beyond reasonable doubt~ I accept Mr-. Kapinga's submission that the identification of the appellant as having been one of the attackers of PW~2 on the night of 25th October, 19.82 had not been suf'fi .... •ciently established. Accepting the evidence of PW,.2~ PW.3, PW.4 and PW • .5 that they knew the appellan·t '\tell and that there had been light eminating from the lamp inside the house of PW.2 and PW.J and that the invading thugs had their torches on 6nc1· going;··by the ev~dence of PW• 4 that the ap9ellant uas a cousin of' hers, I find merit in the submiasion. of'Mr. Kapinga that there had been considerable confusion in the house of' PW.2 and PW.3 that had made it not easy for both PW 1 2 and PW.J to have correctly identified the appellant. There is sufficient evidence by PW.2 and· PW .J that there had been a fight between PW .2 and PW .3 . on the other. on the one side and the invading thugs ' PW.2 was seriously injured on the head by a sharp instrument i.e. an e.xa which had been wielded by one I of the attackers. The light inside the house had also gone off during the attack. From the testimonies of' PW.2 1 PW.J, PW.4 and PW.5 I only find PW.4 testifying that there had been bright moon light on the night in question. I do not put much credence on this testimony: ~he other three identifying witnesses would have alluded to this fact especially PW.5 who had gone to the aid of' PW2 had there been strong moon light on the night of 25th October, 1982. · PW• 2, PW• 3,. P1i .4 end PW• 5 ha d not mentioned to PW.6 the nrune of the appellant as having been. one of the attackers this, as already pointed out above, despite the :f;:-ct th2t the report to PW.6.had been made few hours following the attack on PW.2~ the appellant was a neighbour of·the. four identifying .... witnesses and a cous:in o:f PW .Li: who- is .a wife of PW .2~ /~ rj The b1ood relationship betw,een P11. 4 e..nd the ap::_:,e11ant brings the appellant into a c2.tego~y · of a relo.tive of' P~l. 2, PW. J and PH~ 5. TJ,.is is not a person whose name or identity would hc.ve escaped the me1:iories of PT'!. 2, PW • 4 cmc~ PU• 5 • Mr. Kapinga's submission that the tri2l rn~gistr~te had out of hand dismissed the defence is also justifi•ed. From the long judgment of the tri2,l court which was on the main detailed 2.ncl 2n2.1ytical, the trial magistrate had not dea1 t with the defence case sufficiently. The· trial magistr2. te had 2:1.2.lysed and let r:.1e add admirably the prosecution evic~ence but when it C'.'.ffie to the corroborated defence of the appellGnt, the defence was rejected for reasons that as·alr&ady outlined above and which as submitted by Mr. Kapinga amounted to the shifting of the burden of proof to the ap-:_)ellant. The ap?ellant was not obligated to ?rove his innocence. His defence story Has more th2..n re2~sonab1e·~ The testimony of DU. 3 Benardeta :(apinga a nurse 2,t Litembo Mission Hospital shoued thc:t the 2.p:,ell2.i-it had a minor wow1.d. This had not bean contradicted by the prose- cution: the mere fact th.:1.t the i.p:::,;elle.nt had been hospitalised at Litembo Misaion hospital for some two weeks is not on itself' evidence th:.1.t he had been hospitalised all th2.t period for a ;rnund that had been cauaed by a sharp instrument such as bill hook. The PF.J 2nd the Hospital Discharge Certificate that had been produced in court had not a11yt1here shovm that the ijuries suffered by the 2.p~')ella.."lt had been caused by a sharp instrument. The c:ef'ence story that he had incurred head injury in a motor cycle accident is therefore not disproved by the medi6al evidence~ •••• /7. 7 ... For reasons outlined above, .I see □ erit in this ap:!:)eal which is her3by allowed.. The appellant\ i.e.: to be set free 2t once unlesc·otherwise lawfully held on a_nother matter. In the circu[ilsi::2:.nces 9 it is not necessary to dec.1 with the c,ltern~tive arguement by M:r, Ita.pinga i·. e. thnt the offence of :_,,_ttempted robbery had not in the circumstc:.nces of the case been establi- s,hed. \ . ~-~"'"~ \c:,\_,(._,_~ Yahya Rubama Judge