baltazary gustafu another vs republic 2006 tzhc 194 24 july 2006

IN THE HIGH COURT OF TANZANIA AT MOSHI CRIMINAL APPEAL NO. 79 OF 2004 (C/F DC ROMBO CRIMINAL CASE NO. 217/2003) BALTAZARY GUSTAFU )--------------- APPELLANTS ANTHY ALFONCE ) VERSUS THE REPUBLIC-----------------------------RESPONDENT JUDGMENT HON. JUNDU. J. The Appellants, in the trial court were charged with Armed Robbery c/ss 285 and 286 of the Penal Code, Cap. 16, Vol. 1 of the laws. The particulars of the offence were that the Appellants jointly and together on the 19th day of January 2003 at about 23.30 hours at Ngareni Village within Rombo District in Kilimanjaro Region did steal 8 iron sheets valued at Tshs. 36,000/- the property of one Soultery s/o Anicet, before and after such stealing the Appellants were armed with a home made gun “gobore” with two shotgun bullets in order to obtain and retain the said property. In order to prove its case against the Appellants, the record shows that the prosecution side at the trial court called six (6) witnesses. PW.l - D.3896 D/Cpl. Maiko and PW.6 D.2209 D/Cpl. Bukula were the police investigators of the case while PW.2 Fidelis Satorini, PW.3 Emil Satorini, PW.5 Damian Gervas were among the eight (8) villagers who had arrested the Appellants while carrying the iron corrugated sheets, the property of PW.4 Soultery Anicet, the owner of the house where the iron corrugated sheets were stolen by the Appellants. It is the evidence of PW.2, PW.3 and PW.5 on record that they were living in Ngareni Village near the house of PW.4, the complainant, which house was not yet finished so nobody was living therein and that PW.4 lives in another nearby village but had requested PW.2 to look after the house which was very near to his house. Sixteen iron sheets had been fixed on the roof of the unfinished house of PW.4, the complainant and that eight (8) of them had been removed a day before the incident by unknown people. The evidence on record shows further that on the night of 19/1/2003 at 11:00 p.m, PW.2 saw a person uprooting iron sheets from the said unfinished house, he went to call about 8 people ! including PW.3 and PW.5 and they also called the ten cell leader of the area. They surrounded the said house. The person who was uprooting the iron sheets who was the second accused person at the trial court and now the second Appellant before this court having finished removing or uprooting the iron sheets on the roof of the said house climbed down. Thereafter, together with the first accused who is the First Appellant before this court who all this time was guarding holding the home made gun tied two bundles of the said iron sheets each containing four (4) iron sheets and started going away. At this juncture, the Appellants were confronted by PW.2, PW.3, PW.5 and others. The evidence on record shows further that the Appellants having been so confronted they threw the bundles of the iron sheets on the ground. The First Appellant who had the home made gun pointed it to the said witnesses and fired it but failed, so both Appellants started to run away but they were chased by the villagers and arrested. The said gun was snatched from the First Appellant and on being searched he was found with one bullet in his pocket. The Appellants were sent to the Ward Office and later on to Mkuu Rombo Police Station where they were received by PW.l and PW.6 the Police Investigators. PW.l checked the homemade gun and found another bullet therein similar to the one found in the pocket of the First Appellant. He also wrote the caution statement of the said Appellant. PW.6 wrote down the caution statement o f the Second Appellant and on being searched was found with pliers which was used to remove the nails fixing the iron sheets on the roof of the above mention house. The home made gun was tendered in the trial court and admitted as Exhibit P.3, the two bullets as Exhibit P4, the pliers as Exhibit P5, the caution statement of the First Appellant as Exhibit PI and that of the Second Appellant as Exhibit P6. PW.4 identified the eight (8) iron sheets as the ones which were fixed on the roof of his house and removed by the Appellants. The same were tendered in the trial court and admitted as Exhibit P2. In their defence evidence, the Appellants had testified that on the material night they were coming back from Lake Chala where they had gone to buy fish for selling at their Ngareni village and that they met three people who ran away. The First Appellant picked two bullets and put them in his trouser intending to send them to their village office next day. They further testified that as they were near home they met two people each one carrying a bundle of iron sheets which they threw them and ran away. Thereafter, the villagers appeared, arrested the Appellants thinking that they were the one who had stolen the said iron sheets, they were beaten and kept under arrest. They testified further that the villagers went to the house of the First Appellant and took a piece of wood which was made as a gun and which was for his child who used it for playing at school. The First Appellant denied to have made any caution statement at the Mkuu Rombo Police Station so was the Second Appellant. The latter even denied to have been found with pliers when searched by PW.6. They denied to have stolen the iron sheets from the unfinished house of PW.4 contrary to the charge raised against them in the trial court. Having heard the evidence o f the prosecution witnesses and the exhibits thereon and having heard the evidence of the defence side, the trial magistrate properly evaluated all the evidence before him and found that the Appellants were found in possession of the eight (8) iron sheets removed from the unfinished house of PW.4 hence in his considered mind they were implicated in the robbery by the doctrine of recent possession. He referred to the decision of this court in the case of Mughanga and Another VS. R [1972] HCD. n. 21 where the principle of recent possession had been invoked by this court. So the trial magistrate concluded that under the said principle it was clear that the Appellants were the people who had removed and stolen the eight (8) iron sheets from the unfinished house of the complainant PW.4. He convicted the Appellants with armed robbery as charged and sentenced them to 30 years imprisonment each and ordered them to compensate the complainant for the eight unrecoverd iron sheets out of the sixteen (16) iron sheets which had been stolen from the unfinished house of PW.4. Having been aggrieved by the conviction, sentence and order of the trial magistrate, the Appellants have appealed to this court listing six (6) grounds of appeal in their Memorandum of Appeal namely:- (1) That the learned trial court magistrate erred in body law and fact for convicting the Appellants with the alleged offence of Armed Robbery c/s 285 and 286 of the Penal Code, Cap. 16, Vol. 1 of the laws without considering that the charge was not proved beyond reasonable doubts as required by the laws. (2) That the learned magistrate erred in both law and in fact for not considering that, the ways the prosecution side used for identifying the Appellants was not proper hence it was night and they did not properly saw the people who were uprooting the alleged iron sheets. The Appellants were arrested a few distance from the alleged house and so they could have mistaken them from the people who were passing at the scene of crime that material night. (3) That the learned magistrate failed to consider that PW.2 did not inform PW.3 and PW.4 that the people who he saw uprooting the iron sheets were the Appellants and he never mentioned their names and taking in mind that they are villagers. Even the ten cell leader who was among the people who went at the scene of crime never told the rest of the prosecution witnesses that the people who were at the top of the house removing the iron sheets were his villagers. (4) That the learned magistrate also failed to note that the Appellants admitted at Police Station to had committed the alleged offence because they were badly tortured and even the second Appellant was totally injured and his leg was cut as the wound he sustained got rotten. Therefore, the caution statement was taken under threats and could not be received as exhibits. (5) That the learned magistrate failed to warn himself when he believed the evidence of the investigator (PW.6), he claimed that the bullets which were found with the first accused person were of S.M.G. But in the charge sheet it showed they were two bullets of a shotgun. This contradiction clearly shows he was giving evidence which he was not sure of and it seems the whole issue was fabricated by the prosecution side in order to convince the court that indeed the Appellants were the ones who committed the offence something which was untrue. (6) That the learned magistrate erred in law and in fact for ignoring the defence of the Appellants which was purely, true and corroborative in itself without any doubts. Also the magistrate avoided to evaluate the whole evidence adduced by both sides in order for him to give a fair and a reasonable Judgment. Based on the aforesaid grounds of appeal, the Appellants in their Memorandum of Appeal have prayed to this court to allow the appeal, quash'and set aside the conviction, sentence and order imposed on them by the trial magistrate and to order their release from the prison forthwith. The Appeal was heard on 12/5/2006. The Appellants were in person and argued that what they had stated in their grounds of appeal in their Memorandum of Appeal filed in this court sufficed as their arguments in support of their appeal. They prayed to this court to allow the appeal. On the other hand, Mr. Juma, learned State Attorney appeared for and represented the Republic/Respondent. He opposed the appeal contending that it had no merits. Though the Appellants have listed six (6) grounds of appeal in their Memorandum of Appeal, the following issues, in my considered view emerge for consideration and determination by this court: whether the prosecution side proved the charge against the Appellants beyond reasonable doubts; whether the Appellants were properly identified at the scene of the crime; whether caution statements of the Appellants in which they admitted to the commission of the offence were freely or voluntarily made; whether the evidence of PW.6 on bullets was contradiction to what is stated in the charge sheet, and whether the trial magistrate properly evaluated the evidence adduced before him. Judging from the available evidence on record, the said issues can be resolved collectively as I will soon do in the following paragraphs of this judgment. In opposing the appeal, Mr. Juma, the learned State Attorney recalled and revisited to me the entire evidence of the prosecution witnesses that was adduced in the trial court and which the trial magistrate acted upon to convict the Appellants. He submitted that the prosecution side at the trial court had proved the charge against the Appellants beyond reasonable doubt; first the evidence of the prosecution witnesses clearly shows that the Appellants were caught red-handed at the scene o f the crime committing the offence which they were charged with; secondly, the Appellants in their caution statements (Exhibit “P I” and “P6”) admitted to have committed the offence; thirdly, in fact the second Appellant in his caution statement (Exhibit P6) mentioned the First Appellant as one of those who committed the offence. He argued that this is evidence of a co-accused which under Section 33 of the Evidence Act, 1967 is acceptable and the court can act upon it to convict as was held by the Court of Appeal in the case of Paschal Kitigwa Vs R. [1984] TLR 65. Fourthly, Mr. Juma argued that the evidence of the prosecution witnesses was direct evidence which under Section 61 of the Evidence Act, 1967 it is acceptable hence the trial magistrate properly acted upon it to convict the Appellants. He prayed to this court to dismiss the appeal as it lacks merit. In his rejoinder arguments, the First Appellant denied to have written his caution statement (Exhibit PI) voluntarily. He argued that they had been subjected to a heavy beating that broke his leg twice and necessitated the leg of the second Appellant to be amputated. He further argued that no expert witness was called at the trial court to testify on the home made gun, the trial magistrate simply believed PW.l that he was experienced in fire arms. He contended that PW.3 and PW.5 were a family members and they had grudges against him. He denied that they were caughtred handed at the scene of the crime nor did they have a gun which allegedly had failed to fire. In his rejoinder arguments, the Second Appellant argued that he was seriously beaten when he was arrested that necessitated his leg to be amputated an act which had disturbed his mind. He contended that the home made gun (Exhibit P3) and the pliers (Exhibit P5) he simply saw them for the first time when they were tendered in the trial court. He denied to have been found at the top of the roof of the unfinished house of P W.4 removing or uprooting iron sheets nor is it true that they were caught with the items stated in the exhibits. He contended that PW.2 is his neighbour but they had a dispute on a “kihamba” hence the said witness had grudges against him. I have carefully considered the grounds of appeal setforth by the Appellants in their Memorandum of Appeal and their rejoinder arguments before this court. I have also considered the submission of Mr. Juma, the learned State Attorney in opposing the appeal. I have read the proceedings of the trial court which sets out the evidence of the prosecution witnesses and the defence side (the Appellants). I have read the judgment of the trial magistrate in which he found the Appellants guilty of the offence of armed robbery, convicted them and sentenced them accordingly. First, I am satisfied that the trial magistrate in his judgment properly evaluated the evidence of the prosecution witnesses and the defence side such that ground 6 of the appeal has no merit. The trial magistrate property applied his mind to the evidence adduced before him and arrived at a sound and reasoned judgment. The trial magistrate setfourth the evidence adduced by the Appellants as can vividly be seen at page one of his judgment and on page 2 of the said judgment, the trial magistrate clearly stated that he considered “the whole evidence submitted to the court”. Secondly, though in ground 1 of the appeal, the Appellants contended that the prosecution did not prove the charge against them beyond reasonable doubt, having gone through the evidence of the prosecution witnesses on record I am convinced that the Appellants committed the offence which they were charged with and were caught and arrested at the scene of the crime and found with the items that were tendered as exhibits in the trial court hence the prosecution side had proved its case against them beyond reasonable doubt. In convicting the Appellants, the trial magistrate had properly applied his mind to the evidence adduced before him and concluded that the Appellants were the ones who had removed or uprooted the iron sheets from the unfinished house of the complainant PW.4 and stole them. I need not disturb the finding of the trial magistrate. So I find and hold that ground 1 of the appeal has no merit, the prosecution side at the trial court had proved the charge against the Appellants beyond reasonable doubt. Thirdly, on the same footing, grounds 2 and 3 of the appeal, in which the Appellants contend that they were not identified at the scene of the crime has no merit because there is overwhelming evidence adduced by the prosecution witnesses to show that both Appellants were caught and arrested at the scene of the crime. Fourthly, though the Appellants in ground four of their appeal and in their rejoinder submission have contended that the caution statements (Exhibit PI and P6) were not freely or voluntarily made as they were subjected to heavy beating that led to the First Appellant to break his leg twice and the second Appellant to have his leg amputated, the evidence on record does not show that the Appellants were so beaten or tortured by the police when writing the said caution statements. The evidence on record does not show that PW.l and PW.6, the police investigators who took down the caution statements of the Appellants had tortured or beaten the Appellants in order to obtain the said caution statements from them. I am satisfied, therefore, that the trial magistrate acted properly on the said caution statements (Exhibit PI and P6) when convicting the Appellants. I find and hold that ground four (4) of the appeal has no merit. Lastly, in ground 5 of the appeal, the Appellants had contended that the evidence of PW.6 and police investigator was to the effect that the bullets that were found with the First Appellant were of S.M.G. and that the evidence contradicted itself with what was stated in the charge sheet as it showed that the two bullets were that of a short gun. My proper reading of the evidence of PW.6 on record does not show that he had testified in the trial court that the bullets found with the First Appellant were that of a S.M.G., therefore, the alleged contradiction with the bullets mentioned in the charge sheet that they were for shotgun does not exist in respect of the said witness. In his judgment (page 2), the trial magistrate stated that the two bullets found with the First Appellant were for S.M.G. and were admitted as Exhibit P4. However, this was not in j respect of the evidence adduced by PW.6. The trial magistrate stated the said position when analyzing the evidence o f P W. 1. In any case, my close reading of the evidence of P W. 1 on record also does not show that this witness had testified that the two bullets found with the Appellant were that of a S.M.G. Therefore, the mention of the two bullets being that of a S.M.G. was by the trial magistrate himself in his judgment. In any event the said omission on the part of the trial magistrate did not cause any injustice on the part of the Appellants considering the entire evidence of the prosecution witnesses adduced at the trial court. I find and hold that ground 5 of the appeal has no merit. In the final result, the appeal filed by the Appellant against the conviction, sentence and order imposed on them by the trial magistrate has no merits. I hereby accordingly dismiss the said appeal. I uphold the conviction, sentence and order imposed on the Appellants by the trial magistrate. It is so ordered. F.A.R.JUNDU, JUDGE, 24.7.2006 Right of Appeal Explained. F.A.R.JUNDU, JUDGE, 24.7.2006 24/7/2006 Coram:- F.A.R. Jundu, J. For the 1st Appellant: present For the 2nd Appellant:- present For the Republic/Respondent: Miss Rugaihuruza, State Attorney C/C:- Matiku Court:- Judgment delivered in the presence of the 1st and 2nd Appellants and in the presence of Miss Rugaihuruza, learned State Attorney for the Republic/Respondent. F.A.R. JUNDU, JUDGE, 24/7/2006 AT MOSHI.