robert lyaweye vs republic 2011 tzhc 2162 20 june 2011

IN THE HIGH COURT OF TANZANIA AT DODOMA (DC) CRIMINAL APPEAL NO. 72 OF 2009 (Original Criminal Case No. 182 of 2008 of the District Court of Dodoma District at Dodoma) ROBERT LYAW EYE.................................APPELLANT VERSUS THE REPUBLIC.................................RESPONDENT JUDGMENT 20/ 6/2011 & 10/8/2011 KWARIKO. J: The appellant herein stood charged before the trial court with the offence of Threatening Violence contrary to section 89 (2) (b) of the Penal Code Cap. 16 Vol. 1 of the Laws Revised Edition 2002. The prosecution had alleged that the appellant had on the 10th day of March, 2008 at about 20.00 hours at Idifu village within the District of Chamwino in Dodoma Region with intent to harm one JOEL S/O MNYANYIKA did discharge by firing five bullets from a handgun type pistol around the house of the said JOEL S/O MNYANYIKA in order to intimidate him. The appellant denied the charge hence his trial. The evidence at the trial for the prosecution reveal that on the naterial time, while the complainant JOEL S/O MNYANYIKA, (PW1) a tillage Chairman of Idifu village was home with his wife YUNIS w/o MNYANYIKA PW6, the appellant went there and started insulting PW1. He ;hot in the air five times which act scared PW1 and PW6 hence entered nside the house. The appellant cursed PW1 because he was refusing to jive vacant possession of the house supposedly belonged to his (appellant) jncle. PW1 raised alarms but no body came since they were scared of gun ;hots. These included AYUBU S/O MNYANYIKA, PW2, PW l's brother and a leighbor and AGNES D/O HOYA, PW5 also a neighbor of the appellant and 5W1. That the appellant stood 15 steps from PW l's house and their houses ire situated about thirty (30) steps apart. PW1 reported the incident to the Village Executive Officer (VEO) one 30NIFACE S/O CHIKOTI (PW3) in the following morning and they together vent to the scene where they managed to collect three bullet shells, Exhibit PI collectively. PW3 also said the appellant and complainant were not living in larmony since there was a land dispute pending in the District Land and Housing Tribunal which involved PW1 and appellant's uncle. Report was >ent to Police where No. 6404 DC GAUDENCE (PW4) visited the scene on L9/3/2008 to investigate the allegations. He interrogated the appellant who :old him that he fired his gun to scare away people who attempted to steal his pigs. The appellant failed to show to PW4 bullet shells as he said had fired while in the house hence he found that he was not telling the truth. Sketch plan map of the scene was drawn (Exhibit P2). In his defence the appellant said that he truly fired the gun shots. That, he had heard his pigs crying and went to the kraal to inspect where he saw two people stealing them. After he shot the people dropped one pig they had stolen and ran away. That, many people came there after they heard the gun shots including MG 596446 ATHANASIO S/O MNYIPEMBE (DW2) and DANIEL S/O NKUE (DW3). The appellant in the morning saw foot prints of the people who tried to steal pigs and the same ended in the bush. He came back home but couldn't find the bullet shells where his daughter told him that PW3 had collected the same. The appellant said had grudges with PW1 as he did not want him in the village. The trial court found that the prosecution case had been proved beyond reasonable doubts and accordingly convicted the appellant as charged and was sentenced to pay fine of Tshs. 40,000/= or six month's imprisonment. The original record is silent as to which option the appellant chose. Having dissatisfied with the trial court's decision the appellant filed this appeal. In his petition of appeal which was drawn gratis by NOLA (National Organization for Legal Assistance) the following four grounds of appeal have been raised; 1. That, the Honourable District Court erred in law and fact in deciding that the case was proved beyond reasonable doubt. 2. That, the Honourable District Court erred in law and fact in convicting the Appellant without evaluating the evidence accordingly. 3. That, the Honourable District Court erred in law and fact in deciding the case on extraneous matters. 4. That, the Honourable District court erred in law and in fact in sentencing the Appellant to pay Tshs. 40,000/= or six months imprisonment. When the appeal came for hearing the appellant appeared in person and argued the appeal. The appellant generally contented that the complainant's evidence was contradictory in that at first he said he was inside when the incident happened and later said he was outside. That PW1 did not tell the truth when he said that could not get assistance following the threats since he is himself a justice of the peace in the village. PW3 also ought to have come to the scene after he heard the gun shots and confronted him (the appellant) instead he advised the complainant to go to police. Also that PW1, PW2 and PW3 evidence differed on the place the bullet shells were found. That instead of looking the bullet shells themselves they ought to have reported the matter to the police. Also the bullet shells could not have dropped at one place. Further, PW6's evidence contradicted PW l's and that PW4 did not tell the truth because he (the appellant) showed him the hole created by bullet and did not explain the same in court. Finally the appellant contended that the complainant had old grudges with him since he (PW1) had land dispute with his (appellant) uncle who used to stay with him whenever he went to attend the case. Thus, the case was just a frame-up against him. Ms Luwongo learned State Attorney argued the appeal on behalf of the respondent Republic. I will refer her submission in the course of this judgment. The issue to be decided here is whether the case against the appellant was proved beyond reasonable doubt. Firstly, as rightly submitted by Ms Luwongo, this court finds that PW1, PW2 and PW3 testified the truth when they said that they saw the appellant when he first came and started hurling hard insults to the complainant. He went further and fired his gun in the air to threaten and PW1. Also PW l's evidence did not contradict itself as he testified that he was outside when the appellant first came there but entered inside the house when the appellant started firing his gun. This evidence was corroborated by PW2 and PW6. As to whether or not PW1 could get assistance following the threats and gun shots, PW3 testified as PW1, PW2 and PW6 that they were scared hence people could not get closer to the scene. This evidence was corroborated by PW5 a neighbor to both the complainant and appellant who said she heard gun shots and appellant's threats to PW1. The appellant did not say if he had quarrels with PW5 AGNESS D/O HOYA so that she could have told lies against him. I also agree with Ms Luwongo that bullet shells were found near the complainant's house and far away from the appellant's house and his pigs' kraal. The Sketch plan map of the scene exhibit P2 shows this picture very clearly. Had the appellant been scaring away the thieves, the bullet shells could either have been found in his home as testified by PW4 or near the pigs' kraal as he said they were attempting to steal the pigs from there. And the appellant was not without motive when he threatened the complainant. Both parties told the trial court that the two were not in harmonious terms since PW1 had land dispute with appellant's uncle and the appellant was not happy about that. PW3 a Village Executive Officer confirmed these allegations. The appellant complained that the complainant and also PW3 ought to have reported the matter to the police before they even collected the bullet shells. PW3's evidence was to the effect that the police Station was about twelve (12) kilometers away and I think this is a long distance for one to get there immediately. Since the two were village leaders there was no harm when they decided to collect the bullet shells and hand over to the Police. And since PW3 did not find the appellant home when he visited the scene then it was logical that he could not have inquired anything from him and was right that he advised PW1 to report the matter to police. The appellant's account of this incident has not raised any doubt on the prosecution case since he did not report the matter (alleged pigs' thieves) to any local area leader immediately thereafter. One cannot just go on shooting rampage without any fear of his village mates or leaders in the guise of scaring the thieves away. The shooting is a very sensational incident hence the appellant must have let his leaders know why the same had happened. If many people came to the appellant's home following the shootings as the appellant and his witnesses testified then why they failed to report the incident to any of their village leaders? The answer to this is that there were no any thieves at the appellant's home; PW5, a closely located neighbor also could have testified in the same effect. And if there came many people to the scene after the shootings how could the appellant have traced alleged thieves' footprints in the morning which may have been tampered by the peoples footprints?. The answer to this is that there were no any thieves there. I have gone through the evidence at the trial and did not find any complaints by the appellant as he is trying to reveal now. This is becoming wise after the event. Had the appellant shown all these dissatisfaction when the prosecution witnesses were testifying I believe he must have got the answers very clearly. He did not even show through cross-examination that PW4 was not telling the truth and that PW1 and PW6's evidence was contradictory. After all when the appellant was mitigating as to the sentence after conviction, he told the court that he would not repeat the offence, meaning that he had committed the same and was regretting. Therefore, the appellant's conviction was proper. However, Ms Luwongo complained about the sentence meted out by the trial court to the appellant in the sense that it was manifestively on the lower side. The appellant did not specifically respondent to this contention. This court has gone through the law and found that the maximum punishment for the offence in which the appellant was charged is imprisonment for two years. Since the appellant is a first who had regretted his actions, I believe the sentence was justified. The law says that first offenders deserve court's leniency in sentencing. Therefore, the sentence was also appropriate. Consequently, this appeal is without merits and it is hereby dismissed in its entirety. Order accordingly. (M. A. j JUDGE 10/ 8/2011 Court: - Right of Appeal fully explained. (M. A. RIKO) JUDGE 10/ 8/2011 10/ 8/2011 Appellant: Absent/Reportedly sick. For Respondent: Mr Nchimbi State Attorney assisted by Ms Idda Kombe, State Attorney Trainee. C/c: Ms. Komba. (M. A. ) JUDGE 10/ 8/2011