20090521 TZCA Dar es Salaam2

12 IN THE COURT OF APPEAL OF TANZANIA DAR ES SALAAM I (CORAM :NSEKELA, J.A, KIMARO,J.A And MBAROUK, J.A.) 1 ', CRIMINAL APPEAL N0.55 OF 2006 MOHAMED ALLY NGOZOMA AND LAWRENCE MATEI@ZENGO ................................................Ai>PELLANTS .! VERSUS THE REPUBLIC ...... ■ •• ■■ ••••••••• I •••••••••• ■■ ••••• I I •••••••••••••••• ~I ••••• I •• RESPONDENT (Appeal from the decision of the High Court of Tanzania at Morogoro) (Mushi, J.) dated 16th December, 2005 . in ! Criminal Session No. 99 of 2002 JUDGMENT -1 9 March & 21 May, 2009 KIMARO, l.A.: The High Court of Tanzania sitting at Morogoro convicted st Mohamed Ally Ngozoma and Lawrence Matei @ Zengo, I the 1 and nd 2 appellants respectively, with the offence of murder contrary to !.,, ' ,, i section 196 of the Penal Code, CAP. 16, R.E 2002. r.".'."~Jhey were alleged to have jointly and together intentionaUy killed one Said I 2 Mihengo on 1ih July, 2001 at Msamvu area I within Morogoro Municipality. I I The prosecution evidence w,as to the effect that the house of Said Mihango, now the deceasedl was invaded 8y robbers on the , I 111 night of 11 July 2001. They b~oke one of thel outer doors and I . gained access to the house. By ~hen the deceas~d was asleep with I I his wife, Fatuma Muhengo (PW4).1! According to Pvy4 the door of the bedroom was also broken and the robbers gai~ed access to the bedroom. Upon entering the bedroom they fired a gun which shot I the deceased on the stomach. I~ would appear !that the deceased ! I died instantly. The robbers thep threatened Pf4 with gunshots, harassed her, and were eventual!; able to get aw~y with a television i, . I set, a radio and other properties.1 It was her evi9ence that she was not able to identify any of the ~ulprits whom srle estimated to be I about three, and neither were they identified by lany other witness. Their identity was hidden by thei~ dressing. Th~y were dressed in black from top to bottom like aN~NJA". An auttjpsy was conducted on the body of the deceased and the post m~rtem examination I ' ' \_ ' ,J 3 I; report, admitted as exhibit P2, rev~aled that the cause of death was I, I I I perforation of the intestines and stomach caused by bullet wounds. I I The deceased had multiple bullet ~ounds. I I I, I I The appellants were arresta:i and charged ,ith the offence of murder of the deceased because pf purportedly bfing found with a shot gun suspected to have beeh used in the dommission of the !: I murder. From the evidence of~ D/CPL Francis (PWl) and D/CPL !: I th Romanus (PW2), as both were ~n duty on 30 ~ugust, 2001 they received information from an info~mer that the aP,pellants had bags suspected to contain weapons for ~ommission of ah offence and they ' I were at Ben Bus Stand. They i+mediately madf a follow up. On arrival at the bus stand, the witriesses found both appellants there 1, I with two bags near them. O~e was a big hag containing an I I I - assortment of items which include~ a shotgun witH broken butt stock, ' I, I . knives and a wallet which had: a photocopy or a driving license bearing the name and photograph of the first app~llant and was near !I I i him. Although the first appellant disowned the bag, the witnesses i I did not believe him particularly because ': of the driving license found 4 in the bag. The shotgun had nb serial numbe1. The bag was admitted in evidence as exhibit P4. The contents of the small bag ! I 1 were a rifle gun ''gobore'; which also had no s~rial number, one I I magazine and five rounds of arlimunition. I This one was said to ' belong to the second appellant. : It was admittfd in evidence as exhibit PS. The second appellant Who had run away was arrested and i I brought back to the bus stand. ~e was searched Ion his person and found with a packet containing illi1it drink known f ''.qongo" and one bullet with serial number 458 whi~h was admitted I in court as exhibit P6. How were these items linked to the commission of the offence? ' I i I We get an explanation from D/S{Sgt Burhan (PWF)- He was among I the persons who visited the sce1e of crime for jnvestigations. His testimony was that he recovered an empty carttidge of a shotgun I I and a piece of wood which he ~ecognized as b~ing part of a gun I I I handle i.e. butt stock possibly for :a shotgun. Furt1er testimony of the . I witness was that his long expe~ience in the field of investigations i I showed that the bullet wounds suffered by the deceased could have I 5 I . I I only been caused by a shotgun bull~t. The body of he deceased had f several small wounds and accorqling to PW6 sh;otgun bullets do : I produce that type of wounds because they con~ain several small I I : I pellets and one was recovered fron;, the body of the deceased. PW6 i, I took the pellet recovered from the body of ijhe deceased for ! ! I investigation. When the appeUan~s , were arrestedI he re-called the piece of wood recovered from th~ house of the ~eceased and the pellet that had been recovered f~om his body. ~hen the witness I fitted the piece of wood to the broken butt stofk of the shotgun found in the big bag, it fitted co~pletely. The Jiece of wood was produced in evidence as exhibi~: PlO. As for /the pellet it was admitted as exhibit PS. The gun$, bullets, cartri9ges and the pellet I . were taken for investigation at ttie Central Identihcation Bureau for forensic examination by a ballisti~ expert. The iallistic report was i; I . admitted as exhibit Pl. / I The purpose of the investi~ation covered fbur aspects. One, ;: I whether the pellet recovered frtjm the body of /the deceased was fired from the shotgun found in the big bag. Twol whether the piece I I I 6 I I of wood purported to have been found at the scene of crime was I i part of the shotgun. Three, the mechanical status of the shotgun as I I well as the rifle and four, the restoration of the seri9I numbers on the I shotgun and the rifle which had the butt stocks cut bff. I I The results of the examination were that t~e spent cartridge I recovered from the house of the· deceased was hot fired from the I I shotgun allegedly found with the appellants. As foli the piece of wood I I found at the scene of crime, the results showed that it had same I ! colour, appearance, and material to the butt stock of the shotgun ! i found in the big bag. The cutting on the shotgun found in the big I bag· did not affect its mechanical working. Fµrther examination revealed that the piece of wood superimposed: completely to the I broken part of the butt stock of the shotgun fo~nd in the big bag. The expert opinion was that the piece of woqd was part of the I shotgun. The number restoration of the shotgun revealed that it had 1 1 numbers B 153298. As for the rifle gun, expert bpinion was that its I I mechanical status was not good because the cocking mechanism was I I not functioning efficiently. Also the serial numbers could not be I I 7 1: I restored because they had been eroded and crushed with a sharp i. I object. The appellants were charged with the offence of unlawful Ii I I possession of firearms and were co hvicted. 1 i I At their trial of the murder ctharge, both apAellants denied the I I commission of the offence. The rifst appellant denlied being arrested at the bus stand on 30/08/2001.!, He said he was arrested at his th I I house on the night of 29 Augu1, 2001. The syond appellant on the other hand admitted being ar~ested at the bus stand but said he . I ran away because of the 'gongo"thich he had. _i: I i: I The learned trial judge believed the prosecution evidence that, I • i the appellants were arrested at the bus stand because of the .; r:I, I I evidence of PW1 and PW2 and also that of Kassim Ally (PW3) and I I Mrs Rehema Ally Kibwana(PW5). Both of them wJe conducting petty . 1: I . I businesses at the bus stand where the appellants were arrested. It ' j' was the testimony of PW3 and Pvits that the appe lants were arrested I I at the bus stand with the bags. i With such evidence, coupled with the expert opinion evidence th~t the piece of Lood found at the 8 , I I I 1 scene of crime fitted squarely to th e shotgun found in the big bag, I the learned trial judge was satisfied that the murd~r charge against ' ; I the appellants was proved beyond reasonable I doubt and he ; I accordingly convicted the appellants;i as charged. I I I Being aggrieved by the convicttion and senten<te, the appellants , I have, through their learned advodate, Mr. Barnatjas Luguwa, filed I four grounds of appeal faulting the :decision of the Jrial court. 1 First, I I there was no watertight evidence tp prove that the/ bags belonged to the appellants. Second, the learned trial judge faiidd to ascertain the : I type of weapon involved in the killing of the dece~sed. Three, there was variance in the prosecution evidence on the c~ntent of the items in the bag produced in court as ~n exhibit. Lastl{ the learned trial judge erred in law in holding th~t the driving lilcense of the first : I appellant was in the big bag with0ut conclusive r~levant evidence to I I that effect. I I I I I 9 i I At the hearing of the appef Mr.Angaza lwipopo and Ms Msabila learned State Attorney app~ared for the res!i)ondent Republic i I and they supported the conviction ahd the sentence. II, ; I II I In arguing the appeal, the l~arned counsel for the appellant I, I . opted to start with the first ground) followed by the third, fourth and - !i I lastly the second one. In support iof the first ground of appeal, the I learned counsel for the appellants submitted that the appellants were convicted .because of being found/: in possession df the bags which contained the weapons. HoweveJ. contended thJ learned counsel, 1: there was no proof of ownershi~ of the bags that the ·big one i I belonged to the first appellant !°d the small ore to the second appellant. He said the witnesses 0ho testified on tre bags were PW3 and PWS and the only link which !connected the Jppellants with the i I bags was that the bags were near/them. There was no description of I, :' the bags. But, argued the le~rned counsel, there were other I, 1: passengers and other bags at the~, bus stand and it was the first time :i I the witnesses saw the appellants. /In this respect, rey could not with certainty say that the bags belonged to the appellants. According to I Mr. Luguwa, being found near the bags per se wa~ not conclusive I I evidence of ownership of the same. Moreover, the !learned counsel I I for the appellants further contended,, the witnesses paid attention. to I I the appellants when fracas with the police started land not before. I ' Under the circumstances, the learned counsel said, their evidence is i I doubtful and the doubt should be resolved inl favour of the I appellants. He cited the case of Omari Msokowale Vs R Criminal I I I Appeal No. 84 of 1999 CAT (unreported) to support his submission. I . I I I I I I The response by Mr. Mwipopo, learned Stat~ Attorney on the . I I first ground of appeal was that .it has no merit and should be I I dismissed because PWS saw the appellants when :they went to the I i bus stand with the bags. In addition, . said the I learned State . I Attorney, the driving license of the first appellantI was among the items found in the big bag. On this ground of appeal, and with respect tq the learned State I I Attorney, we agree with the learned counsel for the appellants that I I there was no watertight evidence to prove that the bags belonged to ,1 !1 !i 11 II: , the appellants. The learned counse/ for the appellTts pointed out 1 correctly in our view, that there wa s no proof of ownership of the I I bags. According to PWS the appe{lants were arrested because of , I:' I being found near the bags. But tie appellants were not the only persons present at the bus stand. ir,oreover, PWS Jho testified that ' i 1 he saw the appellants with the bags/. when they went to the bus stand I 1, was not even sure that the drivifg license was that of the first I , appellant because when he was /,cross examined by one of the I 11 assessors he said it was the police I, who said the pthotograph on the I I driving license was that of the first ~ppellant. Certainly if he was sure that the bag belonged to the first/ appellant and ~as present when the police opened the bag for in$ection, he woJld have seen the Ii I driving license by his own eyes lnd ascertain whether it had the photograph and name of the first ippellant. His efdence that it was the police who said the driving license had the photograph of the first i 1 appellant makes it doubtful. We fird this ground of appeal has merit. I !i 1: I On the third and fourth grounds of appeal t e learned counsel i! I. for the appellant was working u,hder a wrong impression that the 12 I I I I learned trial judge had relied upon evidence that was rot admitted in I I I court. He particularly thought of the driving license I said to have I I been found in the bag which the learned trial judge relied upon I I I heavily to base the conviction of the first appellant. ! In his opinion I I I the driving license was not part of exhibit P4. This ¢xhibit consisted I of the items that were found in the big bag. ffortunately, this I I I discrepancy was sorted out by inspection of the ofiginal record by I I I both the learned counsel for the appellant and t~e learned State I I ' Attorney and were satisfied that the driving licenseI formed part of I I I exhibit P4. It was mistakenly omitted from the typed record. After I I I clarification from the original record of the proceedi,'ngs on what was I I I admitted in court and relied upon by the learned trjal judge, the two I I I grounds of appeal no longer save any useful purpose. I I I I I I I I I In respect of the second ground of appeal which the learned I I I counsel for the appellants opted to argue as the la~t one, he said the I I I learned trial judge failed to consider the ballistic reiport of the expert. I I I I He contended that in terms of the report, the used cartridge of a I I I shotgun recovered from the scene of crime, whichi the ballistic expert I I 13 identified as exhibit "C" and the spent cartridge puq:~orted to have I I I been found from the suspect identified by the expert/ as exhibit "F" I I were not fired from the shotgun that was found in the big bag. This I ' I shotgun was identified by the ballistic expert as e*hibit "D". The ' I judgment, the learned counsel contended, went contrary to the evidence that was on record. The learned counsel said that the evidence of PW6 was contradictory as there was, no connection I I I I between the death of the deceased and the ballistic; report that any I I ' of the weapons that was recovered from the bags purported to I I have been found with the appellants was used to ~ill the deceased. I I I The weapons, the learned counsel for the appellant contended, had I I I I no connection whatsoever, with the death of ttie deceased. He I prayed for the appeal to be allowed. The learned State Attorney on the other hand: argued that there I I I was evidence from PW6 that the handle recovered at the scene of I I I crime fitted completely to the shotgun that was found with the I I ' I appellants. Moreover, contended the learned State Attorney, the I I I ' ballistic report was that the piece of wood recovered from the scene 14 of crime was of the same colour, appearance and materi~I to the butt I : stock of the shotgun that was found in the big bag purp,ortedly found I I I with the appellants. According to the learned State /Attorney this I I I evidence was sufficient to prove the murder charg~ against the I I I : appellants. : I I With respect to the learned State Attorney, we 6gree with the I I I I I learned counsel for the appellant that the evidence :to connect the I I ' I appellants with the commission of the offence of murder , is not there . . I I The weapons purported to have been found with the /appellants have I I I no relationship with the murder of the deceased. The ballistic reportI I I is very clear that the bullet that caused the death bf the deceased I : was not fired from the gun that was found with the! appellants. The report of ballistic expert said: I I "Three rounds of ammunitions selected from I : Laboratory stock test fired from shotgun without / serial number marked as exhibit ''D'~ frhe recovered I I I I test fired cartridge marked as "Tl, T2, ~nd T3" were 15 I compared under comparison.•· microscope in ponjunction ' ''' with exhibits "C" and "F'~ No convincing matching I of pin / ' impression breech face char~cteristics were qoted on the ''' recovered testified cartridges marked as "Tl/- TJ" and on exhibits "C and F'~ i To my opinion the spent/cartridge marked l as exhibits "C and F" were not fired by theI shotgun " : I without serial number marked as exhil;,it "D'~ [Emphasis added]. ' . I' According to the ballistic report exhibit "D" is t~e shotgun that I was found in the big bag. It was not the weapon tnat I was used to I I cause the death of the deceased. As for the rifle t~at was found in I '' the small bag, there is also no evidence that it was/the one used to I i cause the death of the deceased. The ballistic report was that its I '' mechanical status was not good because its cocking mechanism was I I I not functioning efficiently. Moreover, none of!l the culprits who I caused the death of the deceased was identified. I No one was 16 '' I charged with the offence of robbery. The ballistic repor:t that the I handle found at the scene of crime fitted squarely to t~e shotgun I that was found with the appellants, which however, was /not proved to have been the one used to cause the death of the deteased is of I '' no assistance to the prosecution. It is a contradiction. ! In the case ' ' of Omari Msokowale supra, the Court quoted with ~pproval the ' decision in the case of Mohamed Said Matula Vs R /[1995JTLR 3 that: "Where the testimonies by witness contain : ' inconsistencies and contradictions the court has a duty to address the ,inconsistencies and I I try to resolve them where possible; else tMe court ' ' ' has to decide whether the inconsistencies and I contradictions are only minor, or they go to I the I I ' root of the matter. " There is no evidence that the, handle could nqt fit in any other shotgun. It is cardinal principle of criminal law tha~ the prosecution '' must prove beyond doubt that the accused is the o~e who committed I the offence he/she is charged with. In this case t~at was not done. ' '' i ' I