20120417 TZHC Mbeya

- -; 0 IN THE HIGH COURT OF TANZAMA AT MBEYA DC. CRIMINAL APPEAL NO.32 OF 2010 (Originating Criminal Case No.124 of 2008 From Mbozi District Court. at Ywawa) NETO S/O AMOSI ...................... APPELLANT VERSUS THE REPUBLIC ..................... RESPONDENT JUDGMENT 21.10.2011 & 17.4.2012 Before Mniilla B. M.. j.: This appeal originated from, the District Court of Mbozi in Criminal Case No.124 of 2008. In that court, Neto Ainosi, (here in referred to as an appellant) and six others, were jointly charged with armed robbery c/s 285 and 286 of the Penal Code Cap. 16 of the Revised Edition 2002. While all his colleagues were acquitted, the appellant was convicted and sentenced to 30 years ' imprisonment term. He felt aggrieved, hence this appeal wliih is against 1)0th conviction and sentence. The appellant is appearing in person while learned state attorney Mulisa is appearing for the republic. Briefly, the facts of the case were that on 2.102008 the victims of the charged robbery who included PW1 Mikidadi Hamisi, PW3 Sgt Peter Wilfred Soiti and PW5 Mussa Jahazi Ngale were travelling in a motor vehicle from Vwawa to Msagano village when at about 9.30 hours the appellant and his colleagues 1 allegedly at gun point stopped the motor vehicle which was being driven by PW5 and ordered the passengers to he down. It was alleged that the appellant was the one who was holding a local made gun commonly known as "gobole'. PW3, who happened to be a military soldier rnanoeuvred an attack on the appellant and managed to grab the gun from him. Upon losing the gun to that soldier P'W), the appellant is alleged to have attempted to run away but the passengers gave a chase and managed to arrest him. He was taken to Ywawa Police Station where he was interrogated and offered a cautioned statement. The information he gave helped the police to arrest the six other persons all of whom were subsequently charged of armed robbery as it were. The amended petition of appeal has raised six grounds as follows:- That, the learned trial magistrate erred in law and fact to convict the appellant by believing the evidence of PW1 PW2, PW3 and PW5 as they testified that they identified and arrested the appellant apprehended (sic) at the scene after wounded him (sic) with a stone. Why the prosecution side failed to produce a PF3 which used to treat the appellant as an exhibit in order to prove that the appellant was bandit who arrested at the scene (sic)? That the learned trial magistrate erred in law point and fact to convict the appellant by believing that the evidence of PW4 that appellant confessed to commit the said offence. But when this case proceeded before the trial court the appellant claimed that PW4 used force to record the said cautioned statement from the appellant. Why the learned trial magistrate did not see the importance to conduct a trial with trial? 2 That, the learned trial magistrate erred in law point and fact to convict the appellant by believing that PW3 searched the appellant and found bullets in his pants pockets. Why the prosecution side failed to produce a search warrant as an exhibit under sect.38 (3) of CPA, R.E. 2002 and section 41 of CPA, R.E. 2002 support the evidence of PW3? That, PW4 states that the appellant and the 3 d accused confessed before him to commit the said offence he (PW4) recorded cautioned statement from both the appellant and 3' d accused so that, why the learned trial Magistrate discriminated by convicting the appellant and acquitting the 3rd accused while the circumstances and fact were the same to 1)0th the appellant and 3rd accused? That, the learned trial magistrate erred in law point and fact to convict the appellant by disregarding his defense. That, the charge against the appellant was not proved by the prosecution side beyond reasonable doubt. When this matter came up for hearing appellant told this court that the evidence of PW1, PW2 and PW5 contradicts with that of PW3 because the former said that they gave a chase and managed to arrest the appellaiit at a distance while the latter said he arrested him at the scene of crime. According to the appellant, that is a serious contradiction and creates doubts that those prosecution witnesses lied. He went on to say that there was allegation that he was hit with a stone for which he sustained injuries but no PF3 was produced to prove their. allegation. He also submitted that following the allegation that he 11 stole a mobile phone, he expected them to have recovered it from him on account of the allegation that he was arrested at the scene of crime. He therefore prays for this appeal to be allowed. I hasten to agree with learned counsel Mulisa that ground number one is baseless. In the first place, there were no any contradiction between the evidence from P'Wl, PW3 and PW5 because the contents of their testimonies were similar. Also, although it is a fact as admitted by Mr. Mulisa that the prosecution did not ask the distance at which the appellant was arrested, there was however, strong evidence from those witnesses to show that he was arrested at the scene of crime. Those witnesses were similarly unanimous that it was that very person who had the gun, and that upon a search by PW3, he was found with three bullets. Such evidence therefore was rightly relied upon by the trial court in finding him guilty of the charged robbery. It is similarly not in dispute that evidence was given that the appellant was hit by stones which presuppose that he was injured. However, the latter's contention that because the prosecution side did not produce in court a PF3 to show that he was treated connoted that it was not true that he was arrested at the scene of crime is without substance on account that as submitted by Mr. Mulisa, omission to produce in court the PF3 did not render the rest of the otherwise strong evidence weak. In order to establish appellant's involvement in the charged crime in the circumstances of this case, it was important, among other things, to lead evidence on whether or not there was enough evidence to prove that he was arrested at the scene of crime as was claimed by the prosecution witnesses. As aforesaid, that evidence came from PW1, PW2, PW3 4 'I . and PW5. On the issue of mobile phone, Mr. Mulisa submitted that it might have been in the hands of his colleagues. The second ground is also baseless. While the court appreciates that the appellant challenged admissibility of the said cautioned statement on the ground that it was not freely offered, the record will bear evidence (see page 9 of the typed proceedings of the trial court} that the trial court magistrate conducted an inquiry and concluded that the said document was freely given. I had the opportunity of reading the said statement. I am satisfied that to a large extent, there was compliance with the statutory requirements in recording the said statement, and that the details therein suggest very strongly that he volunteered to give the said statement. As such, the trial court properly found it reliable. In his third ground, the appellant is saying that he was searched without a search warrant contrar y to the requirement of section 38 (3) of the Criminal Procedure Code. Once again, I agree with Mr. Mulisa that this ground too is baseless. In the first place, P\V3 was not a police officer but a military officer, hence that section 38 (3) does not cover him. Apart from that however, it must be made clear here that the gun fell in the hands of PW3 after he grabbed it from the appellant at the time of thwarting his attempt to escape. It was then that he searched his pockets and recovered the said three bullets. 5 ?3 S. I need not waste my time as regards the fourth ground of appeal. Suffice to say that the third accused was acquitted by the trial court upon its finding that though he was named by the appellant as having been his accomplice, no evidence of whatever kind from the prosecution witnesses supported his assertion. One would have expected the prosecution witnesses to identify him, but none of them did so. That meant that the prosecution did not prove the case against him beyond reasonable doubt. The appellant's complaints in respect of the fifth and sixth grounds of appeal is that his defence was not given due consideration, and that the prosecution did not prove the case against him beyond reasonable doubts. After carefully going through the proceedings of the trial court, I have found myself in agreement with Mr. Mulisa, learned state attorney that the trial magistrate considered the appellant's evidence in defence and found, correctly so in the views of this court, that it was not worth a belief. To the contrary, it was satisfied, as already stated, that the prosecution witnesses ' evidence was strong and believable, hence its conclusion that the prosecution side proved their case against the appellant beyond reasonable doubt. In a nutshell, for reasons I have attempted to give, the appeal lacks merit and is hereby dismissed. Sgd: / •' •.'/.ç'\,-. Mmilla B. M. i zJ Judge 'k\ 17.4. 2012 6 I hereby certify this to be a true copy of the original. Hi MBEYA OF Yn- c\G F3 YA