Mussa MbwanaAnother vs Republic DC Criminal Appeal No

IN THE HIGH COURT OF TANZANIA AT MBEYA DC. CRIMINAL APPEAL NO. 89/2004 ORIGINATING FROM CHUNYA DISTRICT COURT AT CHUNYA CRIMINAL CASE NO. 13/2004 1. M U SSA M B W A N A .............. 2. ASKALI MLAILILA.................. APPELLANTS VERSUS THE REPUBLIC JUDGEMENT MREMA J. This appeal by Mussa Mbwana and Askari Mlalila, in this judgment referred to as the first and second appellant, respectively, is seeking to overturn the decision of the district court o f Chunya against conviction and imprisonment sentence of thirty years in respect o f each of the appellant. Both the appellants were charged jointly and together with the offence o f armed robbery c/s 285 and 286 of the Penal code upon which the conviction and imprisonment sentences were founded. Like in the trial court the two appellants are unrepresented before this court. The main complaint by the appellants is centered on their alleged identification by the complainant WATSON S/O MWASHSWANDA (PW1) and his wife TABU ZAWADI (PW2) in that night of the alleged armed robbery. The case for prosecution through Watson (PW1) is to the effect that in that night after 1st of February, 2004 at about 2.00 a.m. him and his wife (PW2) were asleep in their house. It was raining. He was awakened by a big bhang (noise) at the door of their house. He thought that it was the noise of thunderstorm. However, he decided to walk to the sitting room to put off the lights. Thereat he met two persons who had already gained entry therein. Through the lights, according to him, he was able to identify the 1st appellant. The 1st appellant is his neighbour in the village home, Iileje District while the 2nd appellant was recognized by him because the 1st appellant had brought him at P W l’s home before the raid. The witness further told the court that through the electric lights in his house which were on, he was able to see the weapons in the possession of the appellants, which were iron bars (nondo) and pangas. No sooner he confronted them than Mussa (1st appellant) struck him with the iron bar on his head and the blow caused him to loose consciousness. His wife was also attacked and both of them were taken to Chunya District Hospital. PW1 suffered injuries on his head, shoulders and on several parts of the body. The bandits looted away shs. 750,000=, one radio cassette and one piece of cloth_____ all totaled to Tshs. 870,000/=. The lower court record shows that the first appellant entered his appearance before the trial court only once and that was on 4/2/2004 when him and his accomplice (2nd appellant) were called upon to plead. Both were put in remand custody and were required to appear in court on 19/2/2004 for mention but both were marked absent. On 05/03/2004, the date both the appellants were again required to appear in court Mussa (1st appellant) did not appear and the police prosecutor informed the court that he escaped from lawful custody. The second appellant Askali Mlalila was present. Thereafter the case continued to be adjourned because of the absence of Mussa. On 11/06/2004 the police prosecutor Assistant Insp. A. Haule requested the court to proceed with the trial o f the appellant in terms o f 2 _ J section 226 of the criminal procedure Act, 1985. The trial of the 2 appellant was conducted in the usual manner but jointly and together with that of the 1st appellant in absentia. On that same date (i.e. 11/06/2004) preliminary hearing was conducted and the 2nd appellant is on record to have conceded the following material grounds (as matters not in dispute): (1) That both the appellants are residents of Ileje ___ Ilomo village and they came to Chunya. (2) Him and the 1st appellant were arrested by police and were found with Tshs. 376,250/= and one Radio Cassette. (3) The 2nd appellant admitted before the trial court to have confessed that he committed the offence and that his confession was voluntary. PW1identified the radio cassette seized from the appellants through his special mark he had scribed at the space or chamber provided for batteries ______ mentioning his symbol as “WN” (meaning) WATSON MWASHIWANDA). The witness tendered the radio cassette (exhibit PI). He also tendered cash sale receipt in the name TUMALIHA FASHION (EXH. P2) DATED 30/8/2003 with particulars: Sonny Radio S. No. 0035851” for shs. 120,000/=. The 2nd appellant is on record as having not objected to the tendering of the two items as exhibits, also a piece of cloth which PW1 and PW2 said they used it to cover their radio cassette, which piece of cloth was also found in the possession of the appellants (see exhibit P.3). No. E 3236 D/C Boniface (PW5) traveled to Ileje in the company of P W l’s brother who knew the two appellants. The two appellants were arrested in their village at Ilembo just as they were arriving there from 3 Chunya . Upon search the first appellant was found with shs. 376,000/= and the 2nd appellant with shs. 250/=. They were also found with the radio cassette (sonny m a k e ___ exhibit PI) and the piece of cloth (exhibit P.3). The appellants were then brought to Chunya and PW1 and PW2 identified them as the very persons who attacked them and robbed them of their properties. They also identified the radio cassette by the special mark of “WM”. The first appellant Mussa was also found with a letter (exhibit P.6) that was issued to him by the village executive officer of Ibaba village, Ileje District, dated 29/01/2994 (introducing him to any officer concerned in Mbeya, Makambaku and Chunya areas as being a business man and that should any problem arise in the course of his business he should be assisted). The letter termed as “traveling permit” was to expire on 9/02/2004. The second appellant’s confession was tendered as exhibit P.7, as the said appellant did not resist its being tendered as part of evidence against him. In defence, the second appellant Askali Mlalila told the court that on 3/1/2004 he was asked by the first appellant to accompany him to Chunya to buy beans. They reached Chunya in February, 2004 and sought shelter at the home o f one old man. It was a Saturday. The next day (Sunday) the appellant (Askali) witnessed the first appellant asking for beans and was given different prices. On that same day (Sunday) the 2nd appellant remained alone at the place they were given shelter. Mussa (1st appellant) returned on Monday very early in the morning and told the 2nd appellant that they must leave as from that point of time. They came up to Mbeya and the 2nd appellant saw the 1st appellant purchasing shop items and thereafter they set out to return to their village in Ileje District. However, they were arrested by police before reaching their home. The appellants’s main contention is based on their identification by PW1 and PW2. According to them, the evidence by PW1 and PW2 as to the 4 identification of the appellants at that period of the night is doubtful. That it should not be believed because PW1 and PW2 failed to give description of the attire or clothes worn by the appellant during the ra id ____ referring to the case of AUGUSTINE KANTE V. R (1982)T.L.R, 122. They further argued that there was no sketch - map drawn at the scene to confirm that P W l’s house had electric fittings so as to agree with PW1 and PW2 that identification of the appellants was through electric light. It is also argued by the appellants that following the abrupt raid and the serious assaults mounted on the appellants which resulted to PW 1 falling into unconsciousness, it was not possible under such fracas on the part of PW1 and PW2 to see clearly their assailants and identify hem without making a m istak e____ relying on the case of ATHMAN SHABAN V.R. (1976) L.R.T, No. 15 (Mzavas, J, he then was ): also the principle enunciated in WAZIRI AMAN V.R. [1980] TLR, 250 P.252. Another contention by the appellants is that the testimonies of PW 1 and PW2 are not without interest to serve because of their being husband and wife, respectfully. Similarly, they submitted, PW 3’s testimony should be looked at an arm’s length, that it that is should not be considered as that of an independent witness. The reason they gave is that PW3 knew each other very well and for that reasons their evidence could not be dissimilar from the evidence o f same relativ es_______ in similar circumstances as observed by this court (Lugakingira, J, as he them was) that “Evidence adduced, in court was from same family which requires corroboration unless otherwise unconnect betaken as conclusive evidence”(see JASON RWEBANGIRA V.R (1975) LTR No. 26). In addition, they submitted, PW3 claimed that they saw the appellants with one bag but that the witness did not confirm that he identified the bag as being P W l’s property. As regards the money and radio which police (PW5) seized from the appellants, their argument is that the alleged seizure of the goods was done in a motor vehicle in which many passengers had boarded. If that was the case, they argued, what evidence is there to confirm that there was a search and upon that search the appellants and not anyone else in the said motor vehicle were found with the said money and the radio? No search warrant or a document of seizure was tendered as evidence as prescribed under section 38 - (i), (ii) and (iii), and subsection (3) of the Cr. PA, 1985. The appellants have also criticized the trial Magistrate for admitting a caution statement allegedly being the 2nda appellant’s confession which was not recorded in the terms spelt out u/s 10 (3) of the cr, P.A, 1985 and, therefore, it was wrong on the part of the Magistrate to base conviction of that unreliable piece of evidence. Paragraph 9 o f the appellants’s complaint is to the effect that the Magistrate introduced extraneous matters or evidence in the 2nd appellant’s defence____ in that the appellant confessed to have committed the offence, a fact which was not true, thus implying that the magistrate recorded his own words or evidence as against that made by the appellant (Aslcali Mlaila). The first appellant is also aggrieved that the Magistrate denied him the right of defence, for the magistrate proceeded to hear the case against him in his absence and thus he was denied him right to cross-examine the prosecution witnesses as evidently provided u/s 290 of the Cr. PA, 1985. Equally, according to the appellant, he was denied his inherent right of defending himself by adducing evidence and the right to call witnesses as per the provisions of section 231 - (1) (a) of the Cr. PA, 1985. Finally, the appellants complain that it was wrong in law and fact for the trial Magistrate to convict them of armed robbery c/s 285 and 286 of the P.C. as there is no evidence o f weapon that was tendered in court so as to 6 align the alleged banditry with the conviction that followed as a consequence thereof. Also that even if the trial Magistrate was fully satisfied that the conviction was based on watertight evidence, the sentence ought not to be thirty years imprisonment but rather 15 years custodial sentence. For the above reasons, it is their prayer that the conviction and sentence be quashed and set aside, respectively. I have also read the written submissions of Mr. Moris Mwamwenda, learned State Attorney. With respect, I agree with him that the identification o f the appellants by PW1 and PW2 was not riddled with mistaken identity or suspicion. Besides the presence of electric light in the raided house, it was not the first time the 1st appellant paid visit to P W l’s house. His second visit was the day PW 1 and PW2 were raided and the witnesses noted their appearances as the very persons who visited their home the day before the incident. Another reasons as to why PW was able identify the appellant is that it was not contradicted before the trial court that PW1 and the 1st appellant knew each other by virtue o f the fact that both of them hail from the same village in Ileje District; and that it was this appellant who brought the 2nd appellant at P W l’s home the day before the occurrence of the incident. Another reason that justifies me to believe and agree with the state attorney about the assertion that the identification of the culprits was water tight is that the said evidence of identification was corroborated by the testimony of LEMSON MWAMLIMA (PW3). It was this witness who told the trial court how he was approached by these two appellants who said that they came from Ileje and were looking for a job. They spent two nights at the home of PW1 and on the third day they informed PW3 that they were going to Igundu village where PW3 had directed them to go where they might find a job. PW3 gave his reason as to why he harboured them at his 7 home, which reason is to the effect that the two persons (appellants) told PW3 that they knew his “brother”. But the trial court, however, did not go further to enquire as whether the said “brother “ was P W 1 or another brother of PW1. In addition, the 1st appellant introduced himself to PW3 as Mussa Mbwaga and the 2nd appellant as Askali. Seriously, I must confess, there is nothing from the facts and circumstances of the case which would justify the trial Magistrate to doubt the testimony of PW3. Even if PW3 was related to or close acquintance of PW 1 as alleged by the appellants, that alone is not sufficient to discredit PW 3’s testimony. He was a competent witness within the meaning of section 127 — (1) of the evidence Act, 1967, and so his evidence could be discredited only if evidence could be led to prove that PW3 gave the evidence he gave with bad motive or for some other reason best known to him. The samething applies to PW4 (Stanley Gabriel Msele). This witness knew PW1 only by virtue of being a neighbour. He did not know the appellants before the incident. Among the persons who joined the police to track down the culprits was PW4. Quoting from the horse’s month (only the relevant part), PW4 had this to say at the 11th page of the typed proceedings. “ ................. We decided to proceed up to Ibaba Ileje District, but at Ilembo village, we decided to stop over there. One vehicle (Pick Oup Hillux) when approached (sic), the younger j brother of the victim identified the 2 accused who was on the tenth position and the first accused Mussa was in front middle seat. They were arrested, we demanded the radio, the second accused was the one who showed it to u s.................. (sic). PW4 further told the court that speaker of the radio was found in a bag that was found a bag that was pointed out to them by the 2nd appellant. As for the radio, however, it was found in a box that was shown to them by the 1st appellant. As regards the money, the 1st appellant told them that he had shs. 376,000/= only because the rest of the money had been sent by him to buy shop commodities. The appellants and the items were offloaded from the mother - vehicle. What a lucid and precise piece o f evidence? I can find nothing unusual on the conduct and credibility of PW4. Like the learned district Magistrate, I am satisfied and I agree with the prosecution that the items found in the possession o f the appellants in a motor-vehicle belonged to PW1 as the latter identified them properly and without any doubt. I do not agree with the appellants that some other persons (passengers) in that motor- vehicle were in possession and control of the said items seized by the police. Such persons could not be others but the appellants who were seen and properly identified by PW1 and PW3 in respect of both the appellants and, in respect o f the 1st appellant by PW1, PW2 and PW3. It was not established in evidence that any passenger (s) in the said motor vehicle other than the appellants was / were seen at Ujenzi area where the robbery took plea, or any other place in Chunya District. Another incriminating evidence against the appellants is the unequivocal admission of common and undisputed material facts during the preliminary hearing. As already shown above the 2nd appellant conceded that during the period under discussion, him and the 1st appellant left their residential village (Ilomo, Ileje District) and went to Chunya District. He also conceded that on their return to their village Ilomo from Chunya both of them were arrested while in possession of one radio cassette and shs. 376,250/=. He (2nd appellant) also admitted to have confessed voluntarily before police that he committed the offence. The second appellant’s concession therefore amounted to nothing more than confessing to have committed the offence complained of jointly and together with the 1st appellant. The 2nd appellant did not object to the production o f his caution 9 statement he made before No. E. 3236 D/C Boniface ()W5). I have read Askali Mlalila’s caution statement and noted that the contents thereof do not amount to a confession by him but an exculpation to the effect that the offence was not committed by him but by the 1st appellant. In his attempt to exonerate himself the second appellant stated, inter alia, in his caution statement (exhibit P7) to the effect that in the night o f 01/2/2004 the 1st appellant left him alone in the house of one “mzee” sayhing that he whould return later and so the second appellant should wait for him. They at about 3:20 a.m. (i.e. early morning hours or 2/2/2004) the first appellant returned carrying a load (“Mzigo”). Then at 4:00 a.m, that is after 1 hour, the 1st appellant urged the second appellant to follow him as they were going back to their village in Ileje District. On reaching Mbeya DW1 (1st appellant) bought various items among which were five cretes of sods, one carton of common salt, one carton of “mafuta ya kupakaa”. At Mbalizi they boarded a motor-vehicle which was going to Ileje and when they reached Ilembo village they were stopped by police men who ordered them to alight from the motor vehicle. Then the goods which were in the possession o f the 1st appellant were off-loaded and the appellants were arrested and told that they were responsible for stealing the said items. They were then brought to Chunya where they were charged with the present offence. He (Askali — DW2) strongly denied in his caution statement to have participated in the said offence. It is clear from the statement that the 2nd appellant exonerated himself from being responsible for the offence but at the same time incriminating the 1st appellant____ as he said that the 1st appellant went to some place not disclosed to DW2 and when DW1 returned he saw him (1st appellant) carrying a “mzigo”. According to the evidence on record PW1 was invaded on 2/2/2004 at about 2.30 hours (2.30 a.m.). The second appellant saw the 10 1st appellant at about 3.00 a.m. On 2/2/2004 carrying a load. If this statement is accepted then it remained to be a burden duty on the 1st appellant to tell the court as where he went in the night of 1/2/2004 before 2.30 a.m. on 2/2/2004 when PW1 and PW2 were raided and their properties stolen. He was also to be required to explain as what kind o f “mzigo” he was seen carrying by the 2nd appellant. But his explanation was not obtained because he escaped from lawful custody after being remanded by the court. The second appellant repeated the same story in his evidence before the court but at the conclusion of his evidence in examination in chief he admitted to have committed the offence (using the very words). “At Chunya we were told that we did commit the offence. I did commit this offence”, (emphasis supplied). In cross-examination, this appellant also admitted that the 1st appellant met PW3 but he did not hear their discussion because they did not stand near him. He would not also know as from where the first appellant got the radio cassette. The appellant Askali further admitted that one person from their village identified them to the police when they were arrested in a motor- vehicle . It is possible to argue that the words underlined above, i.e. I did commit this offence” is a typing error. Bu that could not be the case, in my view, since he admitted during preliminary hearing o f the case that he was involved in the commission of the offence. He was free before the court when the preliminary proceedings were conducted and he is on record to have admitted unequivocally the three matters contained in the memorandum o f matters not in dispute on 11/06/2004. He signed at the bottom of the said Agreement acknowledging the correctness of his admission. His subsequent denial o f the commission o f the offence, I am inclined to believe, came as an afterthought solely for one thing, and that is 11 to save himself from being convicted o f the offence. I am not therefore prepared to agree with the appellant’s defence. Him and the 1st appellant were caught red handed with properties recently stole, hence the application of the doctrine of recent possession The case authorities cited in the joint petition of appeal (supra) could be relevant in the circumstances o f the case if there was no other evidence connecting the appellants with the evidence of identification. First they were both seen on the provious day (before the robbery) by PW 1, PW2 and PW3. Second, they disappeared after the robbery and were arrested some hours later and were caught red handed with P W l’s property. The 1st appellant escaped from lawful custody and that strongly implies that he was guilty conscious of what he did. The trial court was entitled to proceed to hear the case against the 1st appellant who deliberately escaped from the remand prison and the authority to the court to do so is provided u/s 226 - (1) of the Criminal procedure Act, 1985. The trial court could only set aside such conviction upon being satisfied that his absence was from causes over which he had no control, and that he had probable defence on the merit (see subsection (2) of section 226). But it would appear that the appellant did not have good cause for not appearing before the court to defend the case because he never applied before the trial court to have the conviction set aside by showing good cause as to his absence. Instead, he brought this appeal to challenge it on its merit. During the hearing of this appeal he told this court that he never escaped from lawful custody. That he was never taken to court because the charge against him was read over and explained to him by the trial Magistrate while he (appellant) was still at the police station. Then while there police Haule approached him the next day and told him that he was not guilty and consequently he set him free and told him to go home. This 12 statement was refuted quite strongly by Insp. Andrew Haule who was called by this court, as addition witness, so as to verify the appellant’s assertion. Indeed, with respect, I have not see good reasons shown by the appellant as to why I should disbelieve Haule (CWI). My reason for saying this is because if the appellant’s assertion against police Haule were true, there is nothing from the appellant’s mouth as to why he never raised this as one of his central issues in his memorandum of Appeal? His failure to do so, I am inclined to think, presupposes that his subsequent assertion at the hearing of his appeal came as an after thought in order to hood-wink the court into believing that he never escaped from the lawful remand prison while the case against him was still pending in court. Such unbecoming conduct of the appellant, therefore, reasonably tends to supply corroboration to the rest of circumstantial evidence against him. In the totality of the evidence on record I am satisfied, as the learned Magistrate and the state attorney rightly did so, that the conviction against the appellants was consistent with the weight of the evidence on record and as such the conviction is absolutely sustainable. The appeal therefore lacks merit and accordingly'it4sitereby dismissed. JUDGE 20/03/2006 appellants. No State Attorney is present as they all went to Dar. es Salaam for a seminar Right of appeal explained. A.C. iviivcMA JUDGE 20/03/2006