20191120 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA (DODOMA DISTRICT REGISTRY) AT DODOMA CONSOLIDATED DC CRIMINAL APPEAL NO 90A & 90B OF 2018 (Original Case No. 43 of 2015 of the District Court of Iramba District at Iramba) 1.ADAMUNTOGA 1 2. KHALFAN ATHU1I................................ APPELLANTS VERSUS THE REPUBLIC.II..................................I...................U..RESPONDENT JUDGMENT 111912019 & 2011112019 L. M. MLACHA,JU The appellants, Adamu Ntoga (hereinafter to be referred as the first. appellant) and Khalfan Athumani (to be referred to a the second appellant) with two others (Musa Juma and Jumapili Oman) were sent to the district Court of [ramba at Kiombol charged of Attempted Robbery contrary to section 287 B of the Penal Code, Cap 16 R.E. 2002. It was alleged that, with intent to steal did threat Mr. Ismail Thabit by using a gun (Gobore) in order to obtain cash Tshs. 7,000,0001= from the said Mr. Ismail Thabit of Malela village within Mkalama district. The crime is alleged to have been committed on 11th day of April .2016 at about 09:30 hours. They denied the charges. The trial court found them guilty and convicted them. They were sentenced to serve fifteen years (15) in jail. Aggri&ëd by the conviction and sentence, they filed two separate appeals;. Criminal Appeal No. 90A filed by the first appellant and Criminal Appeal No. 90B .1. filed by the second appellant. The two appeals were heard under consolidation on the request of the respondent Republic which was not objected by the appellants. The court ordered proceedings to be conducted in the file of Criminal Appeal No. 90A. The grounds of appeal presented in the two appeals were similar. I think they can be reduced to read thus; That the evidence from the prosecution was contradictory, inconsistent and implausible which could not prove the charge. That there was no evidence to prove identification of the appellants. That the evidence of PW5 Doctor Kaji Kayugilo was not properly scrutinized. That, the evidence of PW6 was not properly scrutinized. That, there was no evidence to establish the chain of custody of the bullet catridges allegedly found at the scene of crime. That, the cautioned statement of the appellant was received contrary to the law. That, the trial court failed to see the relevance of the bad relations which existed between the appellants and the complainants. The appellants appeared in person while the respondent Republic was represented by Mr. Sarara, State attorney. Hearing was done by oral submissions but before going to examine the submissions, as is usually the practice, I shall hereinafter present a summary of the evidence. PW1 Ismail Thabit, a leader of a SACOSS at the village was asleep with his wife, Pw2 Rehema Samwel on the material night at 00:30 hours. It was believed that he had the money from the SACCOS. It was said that the 2 appellants were also members of that group. Now, while asleep, they heard the door of their house being broken. The first appellant and Mr. Jumapili entered inside and moved straight to the bed room. PW1 rose up and managed to arrest the first appellant. His wife came in assistance and held him by the neck. Jumapili who was inside fired a bullet which injured PW2 on the eye who fell down. PW1 and PW2 released the first appellant who moved out. Jumapili followed him. PW1 and PW2 came out also. On gelling out, they saw Musa Juma who was holding a spear and bush a knife. They rose an alarm. The robbers disappeared. People came in response to the alarms. PW3 Juma Ismail was the first to come in. PW4 Samwel Gidion also came in response to the alarms. PW1 and PW2 told PW3 and PW4 that they managed to identify the first appellant. As he was a member of the same village, he was arrested. On being questioned, he confessed and mentioned others. He also confesed to PW6 D.7710 D/SGT. Juma who recorded his cautioned statement, exhibit P3. PW6 is also the one who visited the scene of crime. He said that he picked bullet catridges which were received as exhibit P2. He said that the bullets opened a hole in the roof. PW5 is the clinical officer who attended PW2. He filed the PF3 which was received as exhibit P1. PW1 and PW2 said that there were solar lights inside and outside the house. They could identify the appellants who were also familiar to them by solar light. The defence of the first appellant, Adamu Ntoga, was that he heard the alarms that day and came at the scene of crime. He met PW1, PW2, Musa Juma, Juma Lyanga and Mbele Jumanne. PW1 and PW2 said that they were attacked by people whom they could not identify because the solar 3 light was not on. He was assigned to call more people. He did so. He then heard the complainant saying that he identified him. He was put under arrest and sent to the police station. He was beaten and required to bring the gun. It could not be found. He was charged. He added that he had a misunderstanding with the complaint based on a land dispute. The second appellant, Khalfan Athuman, said that he heard the alarm and came at the scene. He found some people already there. The complainant said that he had fought someone in his room and that an explosive had occurred which injured his wife (PW2). He named the first appellant who was kept under arrest. He denied to be involved in the crime. The defence had other witnesses, namely DW5 Athuman Jumanne, DW6 Habiba Jumanne, DW7 Neema Tarimo and DW8 Zawia Leonard. They all said that they came at the alarms and that, the first appellant was named as the culprit. Submitting on ground 1 and 2, Mr. Sarara State Attorney said that there is good evidence showing that the first appellant came at the house of PW1 and PW2, broke the door and entered inside. He was in the company of 3 others. They were identified through solar lights. The first appellant is a resident of the village and well known at the village. That there was resistance from the first appellant who ordered a gun to be fired. All this took time enabling them to identify him properly. They could also name him to people who came shorlty thereafter. He referred the case of court to Chacha )eremah Murimi and 3 others V. R, CAT Criminal appeal No. 551 of 2015 on this aspect. He added that the first appellant on being 4 a arrested he showed the connections leading to the arrest of others including the second appellant. Counsel dismissed ground 3 which is based on the PF3 as baseless. In ground 4 counsel submitted that the essence of the evidence of PW6 was just to show the way he picked the bullet catriges and the way he went to the person who had the gun being led by the first appellant. There was no need for a ballistic expert, he sibmitted. In ground 5 counsel submitted that there was no broken chain of custody because the catriges were picked just like any exhibit by the person who brought them to court at the hearing. In ground 6 counsel submitted that the statement of the first appellant was recorded incompliance to section 50 and 51 of the CPA. Counsel proceeded to say that the defence of the first appellant was discussed at pages 38 - 39 of the judgment and rejected. He a.rgued the court to reject the appeals. The first appellant submitted that there was no good identification. He denied to commit the crime saying he was arrested on suspicious evidence. The submission of the second appellant was also short. He said that he never committed the crime while challenging the submissions of the state attorney. I had ample time to examine the judgment of the lower court and the record. I could also examine the parties' respective submissions on the grounds of appeal. I plan to discuss the grounds of appeal together. Having considered the arguments and the record carefully, I am satisfied that there was good evidence from PW1 and PW2 showing that the first appellant was in the group of 4 people who invaded the complaint's house 5 S U that night. The evidence is clear that PW1 and PW2 were asleep in the house at 00:30 hours, when the door of their house was broken and their house invaded. Two people entered in the sitting room and moved straight to the bed room. PW1 rose up and managed to arrest one of them who is the first appellant. He had a fight with him. His wife (PW2) joined hands and held the first appellant on the neck in assistance to her husband. They both held him tightly but soon the other person who was inside the house, Mr. Jumapili oman, fired a bullet which injured PW2 on the head (eye) who fell down. PW1 could not proceed to hold the first appellant. Both the first appellant and MR. Jumapili managed to get out at this time. PW1 and PW2 followed them. PW1 and PW2 could see one Musa Juma outside holding a spear and a bush knife as they were running for the first appellant and Jumapili Oman. They rose an alarm and people came. PW1 and PW2 said that they could identify the first appellant through the light of solar light which was in the area, they are also people well known to them. They were all members of their SACCOS, just like PW1. PW1 could mention the first appellant on that night, soon after the commission of the crime. He could not mention others. The others were mentioned by the first appellant after being arrested. This is refted in the evidence of PW1, PW2, PW3, and PW4. It is also refted in the evidence of, DW5, DW6, DW7 and DW8. There was therefore good evidence to show that the first appellant was in the group of those who invaded the house of PW1 and PW2 that night. The identification was done through the solar lights. There was also an early mentioning.