julius dailo siamini and 4 other vs republic 1996 tzhc 23 27 august 1996

IN THE HIGH COURT OF TANZANIA AT MBEYA REVTSIONAL JURISDICTION CRIMINAL APPEAL NO. 53 OF 1995 (ORIGINAL CRIMINAL CASE NO. 19 OF 1993 OF THE DISTRICT COURT OF MBOZI DISTRICT AT MBOZI) . JULIUS DAILO SIAMINI &'k OTHERS . VERSUS THE REPUBLIC JUDGEMENT MWIPOPO, J . The p resen t a p p ella n ts are fiv e * At the time o f h earin g t h is appeal the f i r s t a p p ella n t was one John s / o Vundwe Mwamwezi (t k e 5th a c c u s e d ), the 2nd a p p ella n t was Ntoyanga s / o Hantu Mwamwezi (t h e 3rd a c c u s e d ), the 3 r d .a p p ella n t was Barki Nkwasya Shabani (th e ^th a c c u s e d ), th e *tth a p p ella n t was A ziz, s / o Nkwasya Shabani’ (who was th e 6th accu sed) o and th e 5th a p p ella n t was J u liu s s / o D a ilos S i& nini (th e 2nd a c c u s e d ). In t h is judgem ent.the l i s t i n g o f the a p p ella n ts w i l l f o llo w t h is same pattern# ’•V/hp; used to be the 1 st accused Musa s / o Makongoro had h is appeal d e a lt with, by Hon. Mchome J . in court.’1s Crim inal Appeal No. 27 o f 199^, Musa,Makongoro V. R, (u n rep orted (Mbeya R e g is tr y High Court o f Tanzania) in which the appeal was dism issed both a g a in st s e te n ce and c o n v ic t io n . .In the t r i a l cou rt th e re were 8 accu sed persons out o f whom the t r i a l cou rt - The Mbozi D i s t r i c t Court p re sid e d o v e r by the le a rn e d Mr. J .L . Lupenza (DM) a c q u itte d th e 8th accu sed one Mustapha s / o Moses Mwamwezi,, The r e s t o f th e accused in c lu d in g the p resen t 5 ap p ellan ts Were convicted with conspiracy to commit on o ffen ce c/s 38^ as o f PC'and sen ten ced t o 3 years imprisonment as w ell^w ith Armed Robbery C /ss 285 and 286 o f the Penal Code an d 'sen ten ced to 30 yea rs imprisonment w ith C orp oral Punishment 2.b s t r o k e s . The 2 guis and 6 b u lle t s were f o r f e i t e d t o the -Government. The oth er bag and sandals e x h ib it s were r e s t it u t e d t o t h e ir owners IW1 S a id Salun H ilary and to PW3 Salma d /o Salum H ila r y . ’ ’ ’ ••■ Out o f the 7th same accuseds who were c o n v ic te d th ere i s the 7th accused Nakson s / o Watson Mwasongo who-has n ot been one o f the p resen t a p p ella n ts because he d ied w h ile in p r is o n . The present f i v e a p p e lla n t 's appeals cou ld n ot be heard to g e th e r w ith the appeal o f the 1st accused Musa s / o Makongoro in Cr.App. No. 27 o f 199^ which was determ ined by th is cou rt on ^.5.199^+ because t h e ir appeals were f i l e d out o f time and they had f i r s t t o apply f o r ap p ea lin g out o f time which a p p lic a tio n s were heard and gran ted by t h is cou rt on 31/5/1995* ^he 5 appeals have been c o n s o lid a te d when h earin g them and t h is i s the c o n s o lid a te d —judgement f o r a l l the 5 a p p e lla n ts . » ...... The p ro se cu tio n s case was based on th ree types o f evid en ce a g ain st th e p resen t 5 ap p ellan ts* The f i r s t type o f evidence was o f " t h e a c c u s e d 's own c o n fe ss io n s* A l l the 5 a p p e lla n ts made c o n fe ss io n s which were o r a l to * PW4 ASP Juftie Katunga the OCD o f Mbozi D is t r ic t and w ritte n ones under ca u tion ed statem ents t o PW6 DM+ld D/Sgt Alphonce* I n : a l l th ese co n fe s s io n s th e a p p e lla n ts im p lica te d them selves w ith having committed th e Armed Robbery o f 6 /1 /1 9 9 3 f o r which they were charged and c o n v ic te d as w e ll as f o r another anttem pted robbery committed on 19 /1 /1 9 9 3 in the same area o f N y e n je le . Mbozi D i s t r i c t . What they c o n fe ss e d to have done turned out t o be tru e by in both in c id e n ts which were executed in the same s im ila r manner ^ b lo c k in g th e road w ith b ig lo g s a c c r o s s th e .road to prevent M/v from passing# Then the M/vs and passengers were .atta ch ed-by armed' b a n d itsfa n d robbed o f th e ir p r o p e r t ie s . The present robbery was aimed at th e passengers who l a t e r on gave evidence in cou rt as PW1, PW2 and PW3. * The 2nd type o f the evid en ce tendered in couyt i s o f eye w itn esses who were the v ictim s o f th e robbery and con fron ted f a c e t o f a c e w ith a l l th e robbers who were q u ite s tu p id ly daring f o r robbin g at day tim e f a c e - naked w ithout any masks and on a p u b lic road and p o in tin g t h e ir guns fa c e t o f a c e w ith thcr* v ictim s as did the 1st accused Musa Makongoro Isanya t o PW1 S a id i s / o Salum .H ilary and the 3 th ap p ella n t (2nd a ccu sed ) J u liu s s / o D a lio © M salale t o PW2 H ila ry Hemed Salum and the r e s t o f the 8 v ictim s o f th e armed rob b ery . The two w itn esses PW1 and Frf2 i d e n t i f i e d the a p p e lla n ts in fo u r i d e n t i f i c a t i o n parades which were conducted by FW5 SP K ilo Mdoe from the P o lic e R eg ion al H eadquarters. The i d e n t i f i c a t i o n - 3 - parades were produced as e x h ib its FD. In the id e n t i f i c a t i o n parade no one out o f P1 and PW2 i d e n t i f i e d the 1st a p p ella n t John s /o Vundwe (5 th accused) and the 2nd a p p e lla n t Ntoyanga s / o Hantu Mwamwezi (th e 3rd a c c u s e d ). The 2nd i d e n t i f i c a t i o n parade is not re le v a n t to t h is c o n s o lid a te d because i t in v o lv e d the id e n t it y o f the 7th accused Nakson s / o Watson ® Mwasopo who d ied in p riso n and the 1st accused Musa s / o Makongoro Isanya whose appeal has alread y been heard by t h is cou rt and d ism issed . The J>rd i d e n t i f i c a t i o n parade in v o lv e d the same PW1 and PW2 id e n t ify in g th e 3^d a p p e lla n t B a rik i s / o Nkwasya Shabani (4 th accused) and th e 5th a p p e lla n t (th e 2nd a c c u s e d ). The 4th i d e n t i f i c a t i o n parade in v o lv e d the same PW1 and PW2 id e n t ify in g the 4th ap p ella n t A ziz s / o Nkwasya Shabani (6 th a c c u s e d ). The oth er 8th accused Mustapha s / o Moses Mwamwezi who was in t h is parade was not i d e n t i f i e d by the two w itn esses PW1 and PW2 and wasa c q u itte d by the D is t r ic t Court d e s p ite h is c o n fe s s io n t o have committed both the two armed ro b b e rie s on the given reason that f a ilu r e to id e n t ify him made h is c o n fe s s io n la ck c o r r o b o r a tio n . The a p p ella n ts on appeal here has a lle g e d th at the i d e n t i f i c a t i o n parade was not f a i r l y done. The t r i a l ■ /* co u rt was s a t i s f i e d the parade was p rop erly done. The t h ir d nature o f evidence again st the accused was o f the s t o le n p rop erty which was found w ith some o f the accu sed. The p r o p e r tie s o f PW3 and PW1 were found w ith the a p p ella n ts as fo llo w s : The ja ck e t and sandals o f PW1 .were found by PW7 65606 D/Sgt Muhave w ith the 4th a p p ella n t A ziz s / o Nkwasya Shabani (6 th accu sed ) and the hand-bag and 2 p a ir s o f sandals o f PW3 Salma Salum H ilary were found w ith the 2nd a p p ella n t Ntonyanga s / o Hantu by the same PW7» The hand-bag had the a c t u a l name o f PW3 w ritten on i t . The a p p e lla n ts t e s t i f i e d that they were to r tu re d when bein g c r o s s - examined, but i f th at was s o , they sh ou ld have opposed the adm ission o f t h e ir ca u tion ed statem ent so that a t r i a l w ith in t r i a l co u ld have been h e ld in r e s p e c t o f each a p p ellan t* They r a is e d the t o r tu r e a lle g a t io n s at the time o f bein g cross-exam in ed by the p r o s e c u tio n o r in t h e ir evid en ce in c h i e f . The on ly accused who attem pted to show th a t he was to r tu r e d was the 8th accused who produced h is PF3 showing that he had a wound in the bu ttock s in - - i+ - . Exh. DA in both M edical Cards . (PF 3 s) o f the 8th accused which were o f 4th February 1993 and 1 2 /2 /9 3 p rovin g the presence o f the wound which was s e p t i c . But t h is accused was already a c q u itte d by the t r i a l c o u r t , Even i f he had n ot been a c q u itte d s in c e h is ca u tion ed statem ent was taken on 2 1 /1 /9 3 i t may not" have been re le v a n t u nless he showed evidence th at he sta y ed f o r 15 days w ithout b ein g tr e a te d o r f o r over 20 days without bein g giv en a PF3. The oth er d e ffe n c e e x h ib it produced by the 7th accused Nakson Watson Mwasopo in v o lv e d the » r e c e ip t f o r sandals he was found w ith which was issu ed Dar es Salaam w hile he bo\ the sandals in Chunya and the sandals in cou rt were new w h ile he bought the sandals in May 1992. At any r a t e ,t h i s accused alread y d ie d in p r is o n and has no appeal b e fo r e t h is c o u r t. The two accuseds who attem pted t o ra 'ise a doubt by way t o r tu r e s w ith documentary evid en ce in t h e ir defence are not in v o lv e d in these c o n s o lid a te d a p p ea ls. The a lle g a t io n s o f t o r tu r e b e fo r e ta k in g down th e caution* c o n fe s s io n s o f the a p p e lla n ts were p ro p e rly r e je c t e d by the t r i a l D i s t r i c t Court o f M bozi. t S im ila r y , the ch allen g e made on the s a fe ty o f th e i d e n t i f i c a t i o n parade were grou n dless and were p rop erly r e je c t e d by the t r i a l c o u r t , The w itn esses PW1 and PW2 had ample time t o ob serv e the a p p ella n ts who seen t o have not fo re s e e n any p o s s i b i l i t y o f ever b ein g caught and brought t o an i d e n t i f i c a t i o n 'i parade. No v ic tim o f crime in h is p roper sen ses would have f a i l e d to mark the c u lp r it s who came forw ard t o fa c e them and rob them. PW3 who was h it in the head and fa in t e d cou ld not id e n t ify any c u lp r it b a n d it. She was q u ite h on estly and t r u t h fu l on that p o in t . But her sandals and hand-bag i d e n t i f i e d wlio her . A robbers w ere. ’ PW2’ s f a i l u r e t o be cross-exam ined uue to h is journey abroad has been adequately compensated by the a p p e lla n ts them selves who on 2 6 /5 /9 3 "the re co rd shows, t o l d the cou rt th a t, they were not in t e r e s t e d to cross-exam in e PW2 who d id n ot id e n t ify b e fo r e them. Of course., the a p p e lla n ts were wrong t o assume th a t PW2 d id not id e n t ify them f o r he d id in the 4th i d e n t i f i c a t i o n parade shown • r ' as exh. PE. What is important i s th a t they opted not t o cross-exam in e him v o lu n t a r ily . The a p p ella n ts have fu r th e r a lle g e d th at they were denied-‘t h e ir r ig h t to engage advocates t o rep resen t them. But, the re co rd shows that, the ca se was adjourned s e v e r a l tim es to a llow them t o engage a d v oca tes. ' Later, on they a l l withdrew t h e ir need f o r having advocates* The t o t a l i t y ox the evidence b e fo r e -t h e cou rt warranted a l l the 5 a p p e lla n ts t o be c o n v ic te d as they were. No doubt, they had met p r e v io u s ly t o plan t h is robbery b ein g neighbours.- who: l i v e d ' in two v illa g e s o f Ikonya and Isenkenya - Mbozi D i s t r i c t . F iv e .o f them were a r r e ste d next morning to g e th e r in a land ro v e r each w ith a b ic y c le which meant th at they were on a jo in t jou rn ey . The o th e r 3 co -a ccu s e d were found in t h e i r one v i l l a g e . So,. th e con sp ira cy charge t o o , was q u ite p repa ra tory to the main o ffe n c e o f robbery and they were p r o p e r ly committed on i t . As f o r se n te n ce , the minimuni sentence o f JO years ( t h i r t y ) years f o r armed robbery was q u ite p r o p e r . May be th at the ?.k s to k e s c o r p o r a l punishment appears t o be on the high s id e because in t h is p a r t ic u la r case the a p p ella n ts d id not ¥ f i r e t h e ir 2 guns though f u l l y le a d e d . A ls o , th e only v ic tim to be a s sa u lte d was 0 PW3 the la d y w itn ess who was h it w ith a clu b on the head and. she f e l l down u n con sciou s. S in ce her bags and sandals were found with the 7 th accu sed Nakson V/atson i t i s reason able to assume th a t he is the one who a ttach ed t h is la d y with the clu b - but fo r t u n a t e ly , f o r him f o r I would have confirm ed th e c o r p o r a l punishment on him o f 12 strok es at le a s t f o r a tta ck in g a woman in s te a d o f h is own sex - th e men, he has d ied in p r is o n . On the o th e r hand th ese a p p ella n ts were found with cut guns and w ith JPDF i . e ; ( 1 s t accu sed) uniform s and JKT uniform s i . e . 2nd a**ased, They were a t e r r o r to ,the v i l l a g e r s and the highway t r a f f i c . There were s p e c ia liz e d in robbin g on the highway. So, the punishment o f s tr o k e s i s re le v a n t t o some way. S o , I w i l l reduce the punishment o f stro k e s from 2k to 6 stro k e s o f the #ane on each a p p e lla n t, O therw ise, the appeal i s dism issed except f o r the red u ction o f the s tr o k e s from 2k stro k e s to 6 stro k e s o f the cane„ - (f - E.L.K . MWIPOPO JUDGE 27 /8 /1 9 9 6 Date 2.7/8/96 Coram Hon, Mwipopo, J . A p p ellan ts p r e s e n ts . Mr„ B on ifa ce S ta te A ttorn ey f o r th e R epu blic p resen t Court Clerk. Rukia: C ourt: A l l 5 a p p ella n ts l i s t e d as per judgement axe p re se n t. Judgement d e liv e r e d . Kigjit o f appeal ex p la in ed . E.L.K . MWIPOPO JUDGE 27 /8 /1 9 9 6 Judgemer DISTRICT REGISTRAR MBEYA •