almas so mangapi others vs republic 2013 tzhc 2212 20 may 2013

IN THE COURT OF TANZANIA AT TABORA APPELLANT JURISDICTION (Tabora Registry) (DC)CRIMINAL APPELA NO. 27 OF 2012 CRIMINAL CASE NO. 360 OF 2010 OF THE DISTRICT COURT OF KAHAMA BEFORE J.S.K. HASSAN Esq RESIDENT MAGISTRATE ALMAS S/O MANGAPI APOLO &OTHERS.... APPELLANT VERSUS THE REPUBLIC...........................*............. RESPONDENT 15/4/2013-20/5/2013 JUDGEMENT HON.S.B. LUKELELWA, J. The appellants Sadock Msengi Mussa and Almas Mangapo Apollo, hereinafter variously referred to as the first appellant and second appellant respectively were on 21/11/2011 convicted by Kahama i District Court at Kahama on a charge of five counts as follows:- 1st Count: For all appellants Conspiracy c/s 384 of the openal Code Cap. 16 (RE2002) 2Pd Count: For all appellants Armed robbery c/s 287A of the Penal (Cap.16 RE.2002). * ’■‘• ' V i 3TdZfh Count:- For first appellant only unlawful possession of l Arms c/s 24(1) and 34 (i) and (2) ofArms and Ammunitions Cap. 223 (R.E2002) The learned trial Resident magistrate sentenced the appellants as follows:- 1st Count:- The accused are sentenced to three years in Jail. 2Td Count:- The accused are sentenced to (30) years in jail 3rdCount:- The accused are sentenced to (5) years. 4 h Count:- The accused are sentenced to (5) years in jail. The sentences runs«concurrently. The appellants were aggrieved by both the convictions and sentences and each has preferred an'appeal to this court. Their appeal have been consolidated. The incident occurred at Buzwagi gold mine in Kahama District. The goldmine was guarded by Policemen. As from 4/8/2010 the goldmine was guarded by twelve Policemen under PW1 Assistant Inspector Nyandula. Other Policemen included PW2 G.1688 PC Yohana PW3 WP 6962 PC Upendo and Sungusungu Militiaman PW4 James Kulwa. On 25/8/2010 the said Policemen were on duty PW2 G 1688 was assigned Patrol work at Buswagi number 17. He was armed with SMG with serial number 56-143398. i PW3 WP 6962 PC Upendo was at Buswagi area called Tango 18 and 19. PW4 militiaman James Kulwa was guarding at place called Tango 18-17. At around 7.30 hours, the policemen received a call from a Policeman called Sgt Seba who told them that they needed assistance.- They rushed to the scene,- where they found a lot of intruders, carrying gallons, and buckets. Due to the large number of intruders, they needed bombs and had to send a car to collect them. They arrested the intruders, put them in a Hiace mini-bus and drove them to the Police Station. Then a boy appeared at the scene pretending to be insane. The Policemen were not amused. They stopped the boy and when I inspected he was found in possession of one magazine. One PC Mabrouk started to inspect the boy, the intruder surrounded the Policemen fired in the air PW2 fired his gun in the air in reply. He was beaten up on the head with an Iron bar. He lost his conciouness. PW3 WP 6962 PC Upendo after hearing he intruders asking for a Policeman, she decided to flee from the scene, and threw away her pistol in the bush. She did not reach very far she was cornered, fell down and beaten up after they missed the pistol. » PW4 told his fellow militiamen to lie down and crow after hearing two gun shots. However they were surrounded and beaten up. In that fracas, the SMG number 56-143398 carried by PW2 G.1688 PC Yohana went missing. PW1 called for Police reinforcement from Kahama Police Station. After the arrival of a contingent of Policemen, they gave first aid to I PW2 and PW3 who were unconcious. They noted that two guns which had been issued to the Policemen were nowhere to be seen. One of the guns bearing number 182786 was recovered from the bush, where it has been thrown. The Policemen, and the militiamen did not identify any bandits at the scene of incident. PW5 Matilda Ismail Muguta told the trial Court that on 27/8/2010 at about 02.00 hours, his boyfriend called Ramadhani Obetura telephoned her that he would arrive at Igunga and informed her that she was coming from Tulawata goldmine. He arrived at 9.00 hours. He was putting on dirty clothes. PW5 went on to state that his boyfriend called a man she identified to be the second appellant PW5 went on to state that his boyfriend told him that they were to meet at Mwalian Pub. I He then disappeared, he came back with the first appellant who was carrying a small boy in his hands Obetura took the small bag and put it on his legs. PW5 prepared tea, the first appellant ate very little claiming that he was suffering from ulcers. A short man wearing a muslim cap joined them. According to PW5 the man was the third accused at the trial Juma Rajabu Kibwana @ Kiputa. They left and obetura told her that he was heading for Tulawaka goldmine.' ' At 5.56 P.M. Policemen came and picked up PW5 who was taken to the Police Station, after searching her home, and having been in formed that Obeto was PW5's boyfriend. At the Police Station he was shown a bag which had big and small arms it was cream in colour PW5 did not know whether the bag at the Police Station was the same bag which was in possession of the first appellant. » PW6 E 1433 D/Cpl Thomas told the'Court on 30/8/2011 he was assigned to write a statement of the first appellant. The caution statement was admitted in Court under protest from the firt appellant and marked exhibit R. PW7 D/SSgt Ame, told the trial court that on 25/8/2011 he was at Mnadani area when he received a telephone call from an informer ft who informed him that there were three unknown person who were with Sadoki Msengi who was well known. The informer told PW2 further that the three men and Sadock Msengi were in possession of three guns, one big one and a small gun. Further that the men had first left the place Msangi was wearing a T-shirt marked TMK and were heading to Nzega. PW7 alerted Police at Nzega. ft He asked D/C James and traffic Policeman called Madata for reinforcement. PW7 moved to Hiace bus stand to check when they reached Zuwena Petrol Station they saw two Hiace buses. They stopped the buses, and they saw Msengi wearing his green- Tshirt with inscriptions "TMK." They were in a hiace minibus with registration number T 792 AQQ. Christened Mmassy transport. They followed the bus to Mnadani when they reached Mnadani area then found the bus having been stopped by police. When Sadoki saw them he promptly dropped down from the bus and he was immediately out under arrest. PW2 got into the bus. He saw the bag and passengers told him that they bag belonged to the man under arrest, and further that his fellows had gone to the mnada. PW7 opened the bag, a gun make SMG serial No. 56-14393398 and thirty rounds of ammunitions was revealed. There were also sixteen rounds of ammunition for use in the gun. A pistol make browning with its magazine and five rounds of ammunitions was also found. PW7 went on to state under cross-examination by the first appellant that he knew the first appellant as was familiar to him. He had previous convictions at Igunga District Court. PW8 E '7149 D/C Magengeri, of Ig'unga Police testified that on 28/8/2011 he was told by PW7 SSGT Ame to join him immediately. They alerted Police checks at Police barriers to Nzega. The Hiace stopped at Mnadani and they arrested Msengi who has dropped down from the bus. PW9 Mipawa Sweya, is Igunga town bus agent PW9 testified that on 28/8/2010 at about 11.00 hours a bus Registration No. T.7942 AQQ was traveling in the morning from Igunga to Nzega. He was looking for passengers to board that mini bus. The minibus had four passengers. PW9 advised the driver to proceed ion way to look for other passengers. Along the way when the reached Kilimo area they found four passengers who had a bag having a blue and black colours. The passengers were heading for Nzega PW9 told the Court that it was the second Appellant who had pad all the fare. They proceeded to look for other passengers. They turned back to the town. When they approached Kilimo are one man dropped down with the bag, The bus was full of passengers. They proceeded with the journey to Nzega when they approached the Auction market. PW9 handed over the money to the conductor ready to return back to the bus stand. ft Suddenly he saw two people riding a bicycle ushering him to stop the bus. PW9 told the bus driver to stop to collect other passengers. When the men approached, PW9 realised that they were Policeman and PW9 know PW7 D/Sgt Ame before. The driver stopped the bus. The conductor ordered to open the boot. They took a bag which belonged to the second appellant. The Policemen arrested the first appellant Msengi. ft The bag was opened at the Police Station and two guns were found one SMG, and the second was a pistol. The first appellant had told the Court in defence that he was placed under custody of the Police by PW7 for beating his wife. He suspected PW7 to have an affair with his wife. That on 28/8/2010 PW7 and PW8 interrogated him in the office of the CID A woman called Matrida was called and introduced to him. Then a Policeman called Thomas produced three written papers and was ordered to sign the papers and thumb print them. He was stripped naked and forced to sit on a bottle of Cocacola in order to save his life he had to sign the papers. He was then sent to Igunga hospital where he was given two water drips. The second appellant denied having committed the offence. He told the Court that during the commission of the offence he was not at Kahama. He was in’Dar-es-Salaam. He was admitted at Subi Clinic Magomeni Kagera Dar-es-Salaam. DW3 Che guevara Ibrahim told the court in the morning of 25/8/2010 he sent Almas Mangapi Apolo to Subi hospital Magomeni Dar-es-Salaam. He was given bed rest, and was discharged on 29/8/2010. I On 10/10/2010 Almas Apolo Mangapui was arrested at Osterbay Dar-es-Salaam. In convicting the appellants the learned trial Resident Magistrate found that the appellants were not identified at the scene of incident at Buzwagi gold mine. He further held that the appellants were identified as the person who were we possession of a bag which had two guns, an SMG no. 56-14303398, stolen at Buzwagi gold mine on 25/8/2010. One pistol Browning forty six rounds of SMG ammunitions. The second appellant was identified by PW8 as he escaped from the bus. On the evidence of PW8,PW9 and the caution statement of the first appellant the learned trial Resident Magistrate found the charge proved beyond reasonable doubt. The appellants a challenging the above findings. Each of the I appellants have raised several grounds of appeal which appear to be quite sound. I have gone through the proceedings the trial was commenced by Hon. L.E, Rugarabamu, Resident Magistrate on 3/3/2011. The learned Resident Magistrate recorded the evidence of six prosecution witnesses. » On 27/5/2011 the case came for trial before another Resident Magistrate Hon. F.K. Nyalada, Resident Magistrate. The Police prosecutor asked the trial Court to substitute charge in order to exchange date in 3rd count, 4th 5, and 6th counts. To add exhibits 46 bullets of SMG, 5 bullets of pistol and I bag of different types of clothes. To add two witnesses, one driver and a conductor of a car T.792 AQQ. The first charge was read over and explained to the appellants, who pleaded not guilty to the charge. None of the prosecution witnesses were summoned to give evidence. Hon F.K. Nyalada resident Magistrate recorded evidence of two witneses namely PW2 D 5663 D/SSgt Ame and PW8 E 7149 D/C Magengeri,. Paul , On 20/6/2011 the trial was taken over by Hon. K.M. Mutembei, learned Resident Magistrate who recorded one prosecution witness namely. PW9 Mipawa Swega, then the prosecution case was closed. The learned Resident Magistrate then recorded the evidence of the first appellant and ’that of the second appellant. The trial of the case was passed over to Hon. J.S.K. Hassan Senior Resident Magistrate who recorded the evidence of one defence witness namely DW3 Che Guevara Ibrahim and wrote a Judgment. I have considered the above State of affairs, given the fact that the prosecution case was mainly based on the credibility of PW5, PW7, PW 8, and PW9 and I'm of the opinion that the appellants were prejudiced by the failure of the last trial Senior Resident Magistrate failure to resumnion PW5. PW7, PW8 and PW9 it should be pointed out that PW5 Matilda Ismail Maguta who gave evidence that his boyfriend Ramadhani Obetura and herself had played host to the appellants on 27/8/2010 and saw the lag in issue gave evidence on 6/4/2011 when the bag was not tendered in Court. » The bag was introduced in Court following amendment of the charge which was made on 27/5/2011. The evidence of PW5 does not carry any weight. The evidence of PW7 D/SSgt Arne, on how he recovered the bag containing the weapons differs materially to the version given by PW9 Mipawa Sweya a bus agent who has traveled in the said bus. While PW7 testified that he found the blue bag in the bus, and passengers told him that it belonged to the first appellant who was under arrest, PW9 testified that PW2 had taken the bag from the boot of the minibus. While PW7 testified that he opened the bag in the bus, and the SMG and pistol were seen together with 46 rounds of SMG Ammunitions and 5 rounds of ammunition for Browning pistol. I PW9 testified that the bag was opened at the Police Station. Those are material contradictions, in the absence of the evidence of the bus conductor, driver of any passenger of the bus who saw the appellant being in possession of the bag, the prosecution evidence on the bog hangs in the air. The trial Court relied on the caution statement of the appellant which was recorded* by PW6 E.1433 D/CpI Thomas. The first appellant has repudiated the confession saying that he did write the caution statement. He was forced to sign on three papers by PW6, who made him sit on a coca-cola bottle after he was stropped naked. The learned trial Resident was enjoined to have conducted an inquiry to satisfy himself from the overall evidence on record that the caution statement was voluntarily made by the first appellant if he had made that finding, he should then have looked for corroborating evidence of the retracted confession before acting on the retracted evidence to convict the appellant if .there was no evidence to corroborate the retracted confession the trial court could convict only after warning itself that the retracted confession contained nothing but the truth. The proceedings and the records show that the date when the appellants were said to have been found in possession of the weapons is not clear. There is variance of the date given in the charge sheet as 26th day of August, 2010 and the evidence of arresting Officers, PW^ and PW8 who state that it was on 28/8/2010. As regards identification of the second appellant by PW8 was from the back fleeing from the bus at distance of fifly metesi that identification is not reliable. As regards the rejection of the evidence of the defence of Alibi raised by the second appellant, that was not proper. The proper procedure .is to admit.the evidence, consider the evidence and may accord no weight of any kind to the defence. This is according to section 194 (6) of the Criminal procedure Act. Having so adumbrated, I find that the appellants were prejudiced materially by the changes of the trial Magistrates and failure to resummon the witnesses, and the evidence on possession of the stolen weapon, and the pistol did not prove the charge positively. I find that the appellants were convicted on insufficient evidence, and hence their convictions cannot be sustained. » I quash the convictions and set aside, the sentence imposed on the appellants. It is ordered that the appellant be released forthwith from prison unless held therein on other lawful changes. Appeal allowed. JUDGE 20/5/2013 Date: 20/5/2013 Coram: Hon S.B. Lukelelwa, Judge 1st Appellant: Present • 2nd Appellant: Present Respondent: Mr. innocent Rweyemamu State Attorney who is Present.