john so subet vs republic 2016 tzhc 2130 21 september 2016

IN THE HIGH COURT OF TANZANIA AT DODOMA (DC) CRIMINAL APPEAL NO 02 OF 2015 (From Original Criminal Case No. 223 of 2013 of the District Court of Manyoni at Manyoni) JOHN s/o SUBET .................. APPELLANT VERSUS THE REPUBLIC ................... RESPONDENT JUDGMENT 31/08/2016 & 21/09/2016 SEHEL, J. “I remember on 27/10/2013 they came operation Tokomeza (sic) at my home, it was at 0200Hrs. They knocked the door I remained silent for some time, they knocked the door again, I asked who were they (Sic.) knocking. They replied that we are your guests, ten cell leader. I woke up and opened the door. I saw people outside, I greeted them and they replied whether I am a ten cell leader. I agreed. They said that they came with one name from their camp/station - one Chimwaga. They asked me whether I know Chimwaga. I agreed to knQMh Chimwaga as one of my ten cell members. They asked me to show them Chimwaga. When we reached to the car they asked whether there was a need to go by car. I answered the way is not good as is tull of bushes. We started going on foot, when we approached Chimwaga’s house they instructed me not to reach the house of Chimwaga I had to show the house and remain behind. I showed them the house and they went, knocked and found him. They interrogated him where were the guns. He said he had hidden into the bush. They escorted him to the bush where he gave them two guns. They asked him why he gave them two guns without magazines or bullets. He said he used to keep them in different places. He ordered them to follow him so that he can show them the magazines and bullets, this is where he got chance to escape from them. They made follow up while firing on the air about five bullets. I do not know whether those bullets got Chimwaga. When they came back from the bush they told his wife to make follow up of her husband whether is shot. They arrested me and said that they should take me to police station for interrogation. On 27/10/2013 I was brought to the police station. On 12/11/2013 I was charged to Court (Sic.)” The above was the Appellant’s defence before the District Court of Manyoni at Manyoni. However, the trial Court was not persuaded by the Appellant’s story. It found the Appellant guilty as charged hence it convicted him with an offence of unlawful possession of two guns to wit; Sub Machine Gun (S.M.G) No. 1977CK20561 and Sub Machine Gun (S.M.G) No. 789098 without a licence or permit contrary to Sections 4 (1); (2) and 34 (1) and (2) of the Arms and Ammunition Act, Cap. 22. The trial Court sentenced the Appellant to pay a fine of Tshs. 2,500,000/= in default to serve imprisonment term of nine (9) years in jail. The evidences that persuaded the trial Court were such that on 27/10/2013 at about 0200Hrs, Evance Nkwama (PW1) and Ephraim Polepole (PW2) were on Operation Tokomeza and that they received secret information that John Subeti (the Appellant) is in unlawful possession of a gun. Both PW1 and PW2 told the trial C o u ri* that they went to the Appellant’s home asked the Appellant to give them a gun as they had information that he owns a gun. At first, they both said that the Appellant denied but later on admitted to own a gun. PW1 in his testimony stated that the Appellant told them that the gun is not at home as it is kept by Chimwaga. He said they went to Chimwaga’s home. However, Chimwaga run away when they were near the house. Therefore, they had to ask the Appellant to show them the gun. The Appellant took them to the bush and showed them two guns make SMG that were hidden in the bush. PW2 on the other hand testified that after the Appellant admitted to own a gun, the Appellant took them to the bush and showed them the guns, two SMGs. At the hearing of the appeal, the appellant appeared in person, unrepresented. The respondent /Republic was represented by Ms. Mgeni, learned State Attorne>&^\ In support of his appeal, the Appellant generally repeated what he stated before the trial Court. In reply, Ms. Mgeni, learned State Attorney supported both the conviction and sentence by arguing that it was the appellant who showed PW1 and PW2 the hidden guns and not Chimwaga because since the appellant was left behind he could not hear the conversation between Chimwaga and that of PW1 and PW2. Ms. Mgeni insisted that the appellant was arrested because it was the appellant who showed them the guns. After a careful consideration of the evidence adduced at the trial Court I am settled in my mind that the evidence as tendered did not suffice to sustain a conviction in this case. I have arrived to this conclusion due to apparent contradiction in the testimonies of key prosecution witnesses. The testimony of PW1 differs with that of PW2. The account of PW1 as to what exactly transpired on the incident day differs with that of PW2. PW1 told the trial Court that after the appellant conceded to have owned the guns, they first went up to Chimwaga’s place and thereafter they were taken to the bush and shown the hidden guns by the appellant. But PW2 is salient about th§^ visit they made at Chimwaga’s place. The immediate question that comes to my mind is how come that PW2 who was together with PW1 does not say a thing about the visit at Chimwaga’s place? This glaring contradiction between the testimonies of PW1 with that of PW2 who were key witnesses, weakened the case for the prosecution. It is trite law that where there is contradictory statements then such evidence cannot be relied upon and should be resolved in favour of the appellant. This being a criminal case where the prosecution had a duty of proving the charge against the accused beyond reasonable doubt then the contradiction ought to have been resolved in favor of the appellant. I accordingly find merit in this appeal on the reasons that there was contradiction on the testimonies of key prosecution witnesses. The conviction is, therefore, quashed and the sentence of payment of a fine of Tshs. 2,500,000/= in default to serve imprisonment term of nine (9) years in jail is set aside. The Appellant is to be released from custody forthwith, unless he is held up for some other lawful cause. DATED at Dodoma this 21st day of September, 2016 B.M.A Sehel JUDGE Judgment delivered in open court at Dodoma under my hand and seal of the court, this 21st day of September, 2016 in the presence of the appellant and Ms. Kezilahabi, learned State Attorney representing the respondent. Right of appeal fully explained to the parties. B.M.A Sehel JUDGE 21st September, 2016.