anderson lusinde vs republic 2010 tzhc 236 12 april 2010

IN THE HIGH COURT OF TANZANIA AT DODOMA (DC) CRIMINAL APPEAL NO 29 OF 2009 (Originating from Dodoma District Court Criminal Case No 441/2007) ANDERSON LUSINDE....... APPELLANT VERSUS THE REPUBLIC....... RESPONDENT JUDGEMENT 18 / 2/2010 & 12 /4/2010 KWARIKO, J. The facts of the case which led to this appeal say as follows. On 8/8/2007 WILLIAM KINDAMBA MKENGAWE (PW1) left Green Park Bar at Bahi road area where he had gone to get his dinner. That was around 23.30 hours and PW1 was waiting for a taxi to take him home when he was invaded by three unidentified people and was assaulted with iron bar on the head and chopped in his right leg with a screw driver. He lost consciousness and when he woke up he found some properties he was carrying missing. These were his mobile phone make Nokia 2210, Pistol make Macknov with its Magazine and eight (8) bullets in it and his identity card. The pistol was the property of his employer the Government as he was also working in the l President's office. The Pistol bore No. EL. 6825 and the same was admitted in court as exhibit PI. The complainant reported the matter to Police where he was issued with a PF3 to go to hospital for treatment. The PF3 was also admitted in Court as exhibit PI but I think it should have been Exhibit P2. Thereafter, some Police officers including PW2 NO. E. 9791 D/SGT MARIOUS visited the scene of crime, interviewed the neighbours and drew a sketch plan map of the scene which was admitted in court as Exhibit P2 instead of Exhibit P3. However, on 1411/2007 the Police got information that there were armed robbers in the Dodoma Municipality and they organized themselves where they managed to arrest the then 1st accused at the trial. The first accused told the Police that the appellant herein was in possession of a gun hence they went to arrest him at his home. The appellant was found there in the company of the then 3rd accused and all were arrested. Upon interrogation the appellant admitted the allegations that he was hiding a pistol in Kikuyu cemetery and he led the Police there. The appellant showed the Police where he had hidden the pistol and before they could unearth it they summoned his ten cells leader, OSWALD IBRAHIM MBONDE, PW4 who witnessed the exercise until the pistol was found. A search order was signed by the witnesses and the appellant. After the pistol was found the appellant and two others were interrogated where the appellant confessed the allegations. His caution statement was recorded by NO. E 9791 D/SGT MARIOUS and the same was admitted in court as exhibit PW3 instead of Exhibit PA. The appellant and his two co- accused were sent to Court where they faced one count of Armed Robbery contrary to section 287A of the Penal Code Cap. 16 Vol. 1 of the Laws Revised Edition 2002 as amended by Act No. 4 of 2004. It was alleged by the Prosecution that SEIF WAZIRI @ CHIMKA, ANDERSON LUSINDE and FODAS MWAKANYAMALE jointly and together charged on the 8th day of August, 2007 at about 23.30 hours at Bahi Road area within the Municipality and Region of Dodoma did steal one Pistol make Macknova no. el 6825 VALUED AT Tshs. 910,000/= and bullets size 9mm valued at Tshs 8,000/= all total valued at Tshs. 916,000/= (but correctly is total of Tshs. 918,000/=) the property of Tanzania Government and immediately before or after the time of such stealing did beat WILLIAM S/O KINDAMBA by using a piece of iron bar in order to obtain and retain the said properties. The accused had denied the charge and in his defence the appellant denied that he showed the Police where the pistol was hidden at the graveyard. That instead it was the Police who led the way to the graveyard and dug the ground where they found the Pistol. Also the appellant testified that the prosecution evidence was contradictory between PW4 and PW5 on who had unearthed the pistol. At the end of the trial it was the appellant only who was convicted and accordingly sentenced to thirty (30) years imprisonment. The appellant thought that he did not receive justice hence he filed this appeal against both conviction and sentence. The appellant raised about eight grounds of appeal where essentially he complained that the prosecution did not prove the charge against him. During the hearing of this appeal, the appellant amplified his grounds of appeal while Mr. Mayeye learned State Attorney represented the respondent Republic and he did not support the conviction and sentence in respect of the appellant. His reasons were similar to those advanced by the appellant. This court is also in agreement with the parties that the prosecution case was not proved against the appellant. The following are reasons for my assertion. While the appellant was charged with the offence of Armed Robbery, the prosecution led evidence to prove a different offence of being in unlawful possession of firearm. There is no a single witness who made effort to lead evidence to prove the offence of Armed Robbery against the appellant. If the appellant was alleged to have been found in possession of Exhibit PI but the prosecution did not lead evidence to connect that fact with the offence charged of Armed Robbery. Even the trial Magistrate did not link the evidence that the appellant was found in possession of a pistol and the allegations of Armed Robbery before she entered a conviction against him. But also the allegation that the appellant was found in possession of a pistol was not proved by the prosecution. This is because the police led the appellant to the graveyard where the pistol was found in the absence of an independent witness who could have corroborated their evidence; the evidence on record show that the ten cells leader came to the scene afterwards and thus makes the whole exercise suspicious. Also, there is contradiction between the evidence by t he Police and PW4 the ten cells leader in relation to what happened at the graveyard where the gun was found. It is in record that while the police testified that they got to the graveyard and the appellant showed them the area where he had hidden the gun and started to dig it before they stopped him and summoned his ten cells leader, PW4 testified that they went to the graveyard and found the appellant who showed where the gun was hidden and started digging but stopped by the police who finished the exercise. Further the certificate of search was not tendered in court to prove that the gun was found and witnessed as alleged in the prosecution evidence. I have also seen that the prosecution allegations that the pistol was the property of the government were not proved by the witnesses, this allegation was stated by the words of the month only which any one can come forward and state the same. The appellant's caution statement where it is alleged that he confessed to the offence charged was admitted in court in contravention of the law. The trial court's record shows that when the prosecution prayed to tender the statement the appellant was not given any opportunity to comment anything before the same was admitted in court as evidence. In this respect justice was not done to the appellant since he was condemned unheard. Even though the appellant's caution statement was admitted in court in accordance with the law, the same could not be good evidence since it contravened section 51 of the Criminal Procedure Act, Cap. 20 Vol. 1 of the Laws Revised Edition 2002. This is so because the appellant was interrogated outside four (4) hours as provided in the cited provision of the law. It is in record that the appellant was arrested on 14/11/2007 at about 23.30hours but the caution statement shows that he was interrogated on 17/11/2007 starting from 11.21 hours. What was being done to the appellant all this time is best known by the Police. After all the caution statement was not the one which led to the discovery of the said pistol since the same was recorded after the alleged pistol was found. Lastly, the way PW1 tendered his PF3's leaves suspicion if at all he was invaded and injured by any robbers, PW1 failed to tender his PF3 on 29/1/2008 when he testified and tendered it on 11/2/2008 when he was recalled to testify. To prove that the PF3 was prepared after PW1 had testified the same is dated 29/1/2008 the same day he testified in court! Indeed the PF3 was prepared to suit the purpose of that day only. The same PF3 was admitted in court contrary to the mandatory provision of the law under section 240 (3) of the Criminal Procedure Act, (Supra). The trial Court ought to have informed the appellant his right to have the Medical Officer who signed the PF3 to come to Court for cross-examination and/ or examination as the case may be. Thus the PF3 was not a good evidence and it is hereby expunged from the evidence (See ARABIABDU HASSAN VS R, Criminal Appeal No. 187 o f 2005 of the Court of Appeal of Tanzania at Mtwara) (unreported). Finally, I find that the prosecution case against the appellant was not prove beyond any shadow of doubt and I hereby allow the appeal, quash the conviction and set aside the sentence of thirty (30) years imprisonment the appellant has been serving. The appellant is ordered to set at liberty unless otherwise held for other lawful causes. It is so held. (M. A. XWARIKO) JUDGE 12/ 4/2010 AT DODOMA 12/4/2010. Appellant - Present For Respondent - Mr.Nchimbi State Attorney c/c - Ms Komba.