20110801 TZHC Dodoma 1

IN THE HIGH COURT OF TANZANIA AT DODOMA (DC} CRIMINAL APPEAL NUMBER 96 OF 2010 {ORIGINAL CRIMINAL CASE NUMBER 81 OF 2002 OF THE DISTRICT COURT OF MANYONI AT MANYONI} st SUBI. KU LWA ---------------------------------------- 1 APPELLANT nd WILLIAM HANGO -----------------------------------2 APPELLANT VERSUS THE REPUBLIC-------------------------------------- RESPONDENT JUDGMENT 08-06-2011 & 01-08-2011 S.S. MWANGESI J.: The two appellants herein who according to their records are peasants, residents of Ntope Mirumbi and Pawaga lringa respectively, were charged before nd the District court of Manyoni on the 02 day of October 2002 with three counts. In the first count, they were charged with the offence of armed robbery contrary to section 285 and 286 of the Penal Code, Cap 16 Volume 1 of the Laws Revised. It was the prosecution case that on the 1ith day of July 2002, at about 1300 hours at 1 Sasilo village within the District of Manyoni in Singida Region, the duo did jointly and together steal 30 head of cattle valued at Tshs 1,140,000/= the property of ·.,, one Chikoti Ntemo and immediately before and/or immediately after the time of such stealing, they did threaten one Kanunga Mzilla with a gun and bit him with sticks on the whole of his body and thereby causing him to suffer serious injuries, in order to obtain and/or in order to retain the stolen head of cattle. In the second count, both appellants stood charged with another offence of armed robbery contrary to section 285 and 286 of the Penal Code, Cap 16 Volume 1 of the Laws Revised. The particulars of the offence were that on the same date, time and place, the appellants did jointly and together steal six (6) head of cattle valued at Tshs 340,000/= the property of one Robert Mussa and that immediately before and/or immediately after the time of such stealing, they threatened Kanunga Mzilla with a gun and bit him with sticks on the whole of his body and thereby causing him to suffer serious injuries, in order to obtain and/or in order to retain the stolen head of cattle. The same appellants were further charged with another count of armed robbery contrary to section 285 and 286 of the Penal Code, Cap 16 Volume 1 of the Laws Revised. It was alleged by the prosecution that on the same date, time and place, the appellants did jointly and together steal other six (6) head of cattle valued at Tshs 340,000/= the property of one Helly Mseng'he and that immediately before and/or immediately after the time of such stealing, they threatened Kanunga Mzilla with a gun and bit him with sticks on the whole of his 2 body and thereby causing him to suffer serious injuries, in order to obtain and /or in order to retain the stolen head of cattle. As all charges were denied by both appellants, the prosecution did summon five witnesses to establish the guilt of both appellants. And upon completion of receiving the evidence from all the prosecution witnesses, the appellants were on their part, required by the court to enter their defences wherein, the first appellant did defend himself without oath, while the second appellant did defend himself on oath. Both of them did not call any witnesses to substantiate their defences. After the learned trial Magistrate had evaluated the evidence laid before him, he was convinced beyond reasonable doubts that, both appellants had committed all the offences which they stood arraigned with. To that effect, each of them was sentenced to go to jail for a period of thirty (30) years in- each count and that, the sentences were to run concurrently. On the 24th February 2003, the appellants started to serve their jail sentences. The decision of the trial court did aggrieve both appellants who decided to challenge it at the High Court. Their appeal to this Court has experienced a series of twists and turns and that is why to date that is, after the elapse of about more than eight years, the fate of their appeal has not yet been finally resolved. Their first appeal to this Court was dismissed for want of merit on the 04th August 2003. 3 And their further appeal to the Court of Appeal made the proceedings that had th been conducted before this Court to be quashed on technicalities on the 25 May 2006. Thereafter, the appellants had to encounter the hurdles of making their appeal get re-lodged in this Court, a task which did ultimately materialise and thereby leading to the appeal at hand. In their separate memoranda of appeal which in essence are similar, the appellants have raised mainly three grounds of appeal, that is, in the first ground they argue that they were not properly identified as the ones who robbed the victim on the fateful date. Secondly, they argue that there was evidence that was tendered during the trial of their case wherein it is indicated that they did confess before the sungusungu {vigilant group) that, they had committed the offence at issue. It has been their contention that, such evidence ought not to have been relied upon by the trial court because force was used to obtain their confession. In the third ground of appeal, the appellants have asserted that, the judgment that was prepared by the trial Magistrate did not adhere to the requirements that are stipulated under the provisions of section 312 of the Criminal Procedure Act, Cap 20 of the Laws revised, in that there was no specificity of the offences under which they got convicted, the evidence adduced against them and the reasons thereof. On those bases, both appellants have requested this Court to quash the findings of the trial court and set them at liberty. 4 On the other hand, the respondent - Republic in this appeal was represented by Ms Luwongo learned State Attorney. It was the view of the learned State Attorney that, she did support the conviction that was entered against both appellants by the trial court. On the question of identification, Ms Luwongo has opined that it had no any problems because the appellants were red-handed with the robbed head of cattle. Under such situation, the prosecution had nothing else to establish. If anything, it was upon the appellants to establish otherwise as to how those head of cattle happened to be in their possession. And as regards the issue of confession, this evidence was tendered in court by PW4 and PWS who told the court that the appellants did confess before them and the other people who were with them that, they had indeed stolen the head of cattle. The appellants on their part never put those witnesses into task by asking questions which could have challenged the veracity of their testimonies. The fact that there were no any questions from the appellants to those witnesses, is an indication that they did accept such evidence as true and that, what they are trying to raise now is mere an afterthought. The Court has thus been requested not to accommodate the current claims by the appellants. Regarding the complaint by the appellants that the provision of section 312 of the Criminal Procedure Act was not complied with, it has been the contention of the learned State Attorney that the same is baseless. This is from the fact that, it has clearly been indicated in the judgment of the trial court, the charges which the appellants stood charged with, the reasons for the decision of the court and 5 the conviction to the charged offences. As such, this Court has been asked to dismiss the appeal by the appellant in its entirety as it is not founded on any sound grounds. The defences by both appellants have been that they were not arrested at the scene of the incident. Both did claim to have been arrested at a pombe shop at the village of Mafurungu which was not theirs. According to the first appellant, he claimed to have passed at that village on his way through from Milumbi to llangali. Before he could spend his night at Mr. Hamisi's house where he got invited, he was arrested by militiamen and later handed over to Game Officers. On his part the second appellant did tell the court that he visited the village to collect his bag of maize from one Lasta Masanja. However, he got arrested by militiamen at a pombe shop even before having found his horst and handed over to Game Officers. Both appellants did tell the court further that they did admit to have stolen the head of cattle because of fear. When the second appellant was asked by the court as regards the name of his horst on the material date, there was change of mind in that, one Mang'unda was named, which is a different name, from that of Lasta Masanja named earlier. The inconsistencies on the stories given by the appellants in court, is an indication that what they were trying to tell the court was not factual. One cannot fail to raise a question as to why if the appellants had been arrested by the village authority at the pombe shop as they claim, which is outside the Game Reserve, they could have been handed over to the authority of the Game Reserve which 6 had .nothing to deal with civilian matters. And furthermore, the answer by the appellants that they did simply decide to admit to the commission of the offence levelled against because of fear, is not at all convincing. To the contrary, the testimonies of PW4 Mabele Lubala and PWS Shabani lddi to the effect that they were the ones who arrested the appellants in the game reserve before sunset, with the head of cattle that were later identified to be the robbed ones, was very consistent and convincing as corroborated by PW3 Robert Lameck who arrived at the scene of the incident a short moment after the arrest. Under such circumstances, even the claim by the appellants that they were handed over to Game Reserve Officers after arrest can be understood that it was because they were found in the Game Reserve. Under the foregoing situation, the question that got raised by the appellants concerning identification cannot arise because they were arrested at the scene of the incident in possession of the stolen head of cattle. I have in general, failed to find any plausible reasons as to why I should doubt the testimony of the prosecution witnesses and in particular the testimony of PWS a Game Officer, who had just been assigned to accompany the pursuers of the robbed head of cattle on the bases that it was to be made inside the game reserve. 7 Regarding the complaint that the trial court did err to rely on the evidence of confession alleged to have been made by the appellants to the vigilant group (sungusungu), it is unfortunate that my efforts to trace such testimony in the proceedings at the trial court have proved futile. What I could find in the records of the trial court, is the evidence to the effect that the appellants were found with the robbed head of cattle inside the Game Reserve, and that such evidence was given by PW4 and PWS as well as PW3 who claimed to have arrived at the scene of the incident a bit late. As such, the complaint by the appellants on such aspect is unfounded. The last ground by the appellants is founded on the fact that the judgment of the trial court did not comply with the requirements stipulated under the provisions of section 312 of the Criminal Procedure Act, Cap 20 Revised Edition of 2002. It is true as submitted by the appellants that for a judgment of the court to be proper, it has to comply with the provision of section 312 of the Criminal Procedure Act. The requirements enumerated under the provision include specification of the offence and the section, points for determination, the decision thereon, and the reasons and further that the decision has to be signed and dated. The question which this Court had to ask itself is whether there were any of the named items missing in the current judgment. Upon close perusal of the judgment, my answer is in the negative. It is thus obvious from the foregoing scenario that, the appeal that has been presented by the appellants before this Court is without any founded 8 .. grounds. The foregoing position notwithstanding, there was one major aspect that was skipped and/or omitted by the prosecution in the proceedings of this case. Apart from claiming to have found the appellants with the robbed head of cattle, the same were never tendered in court to establish the contention. The omission has therefore left the court without certainty as to whether there were really head of cattle that got robbed. Such uncertainty under the circumstances had to be resolved in favour of the appellants. To that end, the appeal by the appellants is found to be founded on sound grounds and has to sail through. The decision of the trial court to the effect that the appellants had committed the charged offence is hereby quashed and the sentence of imprisonment for thirty years that had been imposed to both appellants is set aside. It is ordered that both appellants be set at liberty forthwith unless lawfully held for any other justifiable cause. Order accordingly. 9