image0017

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA MOROGORO SUB-REGISTRY AT MOROGORO CRIMINAL APPEAL NO. 18279 OF 2024 (Appeal from the decision of the District Court of Kilombero at Ifakara In Criminal Case No. 54 of 2023 dated 29^ April 2024) DIRECTOR OF PUBQC PROSECUTIONS APPELLANT VERSUS EMMANUEL BETHOD MKOMAWAGI 1^ RESPONDENT CLATUS CLATUS MKOMWAGI 2"" RESPONDENT JUDGMENT 10/12/2024 & 13/12/2024 KINYAKA,J.: The Director of Public Prosecutions, hereinafter the "DPP" or the "appellant" has preferred the instant appeal challenging the judgment of the District Court of Kilombero hereinafter the "trial court" dated 29^^ April 2024 In Criminal Case No. 54 of 2023. The respondent who was in that case arraigned and tried before the trial court for the count of Abduction and Gang Robbery and the 2"^ respondent who faced the charge of Abduction were acquitted following the trial court's satisfaction that their alleged involvement in the I ^ < commission of the said offences was not proved to the hilt by the prosecution. The prosecution's allegations against the respondent on the first count of Gang Robbery contrary to sections 285(2) and 287C of the Penal Code, Cap. 16 R.E. 2022, hereinafter the "Penal Code" were that on 16^ March 2023 at Kapolo Area, Kibaoni Ward within Kilombero District in Morogoro Region, the 1^ respondent did steal Tanzania Shillings Eighty Thousand (TZS 80,000) and a mobile phone make Nokia worthy TZS 160,000, a wallet containing two (2) CRDB ATM cards, one NMB Card, NHIF Card, NIDA card, voters identification card and a driving licence, the properties of one Benjamin Sengasenga @Masala hereinafter referred as "the victim". It was alleged that in that process, the 1^ respondent used actual violence against the victim. As regards to the second count, the prosecution alleged that on the same date and place, the respondents unlawfully and forcefully compelled the victim to go from the said Kapolo Area to be secretly and wrongfully confined at Ihowanje Village within Malinyi District in Morogoro Region. The background facts as gathered from the evidence adduced before the trial court are that; the victim and the 1^ respondent were neigbours at Kapolo Area within Ifakara township. The two were in good terms until on the 8*^ March 2023 when a boundary dispute emerged between them after 2 ^ \ * < the victim's allegations that the trees which were cut by the respondent's workers were falling into his residential area. The matter was reported to PW4, Saidina Omary who went to the area which was disputed in a bid to settle the matter between the duo. According to the testimony of PWl, PW2, and PW4, the said meeting was adjourned to next five days in which the victim was directed to present his proof of ownership of the land in question. Thereafter, the participants of the meeting departed from the area. In his testimony, PW4 informed the trial court that not too long, he heard the victim telling him that the respondent was accusing him of being involved in witchcrafts but he refused to Interfere on the same. His evidence was corroborated by PWl,PW2 and PW5 who in their respective testimonies, testified that in order to prove his allegations against the victim, the 1^ respondent was heard telling the victim that he should be sent to a traditional leader "kwa bibi" so that he could be shaved. In his further testimony before the court, PWl averred that the respondent and other people forced him into a tricycle, took his belongings and thereafter he was forcefully sent to the said traditional leader namely bibi Kalembwani. His evidence was cemented by PW5, Steward Nuvalle a neighbour who eye witnessed the incident, and PW2, Shija Benjamin Masala, the victim's son who upon seeing what had 3 4=. 1 * i happened to his father, he reported the matter to the Ifakara Police Station. On March 2023 the respondents were arrested by PW3, Montanas Winfrld Mchopa while still at Bibi Kalembwani's place. In their sworn defence testimonies, the respondents denied the accusations. While admitting to have participated in the meeting dated 16^^ March 2023 involving a boundary dispute between him and the victim, DWl claimed that it was the victim who had threatened to kill him. He informed the trial court that to his surprise, the victim told PW4 that he was the one accusing the victim of witchcraft. He however admitted to have taken the victim to the traditional leader but upon their agreement that was witnessed by PW4. He told the trial court that PW2's incriminating and reporting him to the police for the alleged offences was due to the grudges existing between him and the victim's family arising from the boundary dispute. On his part, the 2"^ respondent informed the trial court that he was the one who escorted the respondent to the traditional leader as he didn't know the place. He denied to have committed the offence contending that on the fateful day he was not at Kapolo Area in Ifakara but at Mtimbira. He further contended that he knows nothing about the offence he was charged with. Apart from the respondents, DW3 also testified for the defence. He told the trial court that he was the one who boarded the respondent and the victim by using a tricycle from Kapolo Area to Makali bus stand where he dropped them. Upon her evaluation of the evidence from both sides, the honourable trial magistrate was of the firm view that the two offences were not proved against the respondents to the required standard. She thus acquitted the respondents. Aggrieved, the DPP lodged the instant appeal challenging the trial court's acquittal of the respondents relying on the following grounds of appeal: 1. That the learned trial Magistrate rightly appreciated that the victim (PWl) was taken by the 1st respondent from Ifakara to Malinyi at Kalembwani's(witchdoctor) home to get rid of his alleged witchcraft but wrongly proceeded to hold that PWl was not abducted and confined despite ample evidence to the contrary from prosecution witnesses; 2. That the learned trial Magistrate misconstrued the evidence on record as far as confinement is concerned when she held that the Policemen including PW3 who arrested the respondents herein at Kalembwani's home found the* victim in an open space and not ^ '( confined any despite sufficient prosecution evidence to the contrary; and 3. That the learned trial Magistrate erred both in law and fact to have held that the prosecution did not prove the case beyond reasonable doubt. Mr. Shaban Kabelwa, learned state attorney, presented the submissions in support of the appeal whereas Mr. Frank Malebeto, learned advocate resisted the appeal on behalf of the respondent. The efforts of procuring the 2"^ respondent's appearance were fruitless despite being served through substituted service, thus the appeal proceeded ex parte against him. Prior to his divulging into the submissions in respect of the grounds of appeal, Mr. Kabelwa informed the Court that the appellant is supporting the trial court's acquittal of the respondent on the first count of Gang Robbery but unsatisfied with its decision in respect of the second count. He therefore proposed to consolidate all the three grounds of appeal and submitted on the general complaint that the trial court erred in law and fact to find that the prosecution failed to prove the case beyond reasonable doubt. ■' i Mr, Kabelwa commenced his submissions by referring the Court to the case of Joel Joseph Nziku v. R., DC Criminal Appeal No. 29 of 2022 [2023] TZHC 21680, on page 10, wherein this Court articulated three ingredients in proving the offence of Abduction under section 249 of the Penal Code. Highlighting, he told the Court that the ingredients are that the accused abducted the person/victim; the accused kept the person under detention after such abduction; and that the abduction was intended to confine the person. Reference was also made to the definition of the word 'confinement' as described under the Black's Law Dictionary 2nd Edition, where It has been remarked that confinement may be by either a moral or a physical restraint by threats of violence with a presence of force or by physical restraint of the person. On that basis, he urged the Court to consider the evidence of PWl from page 9 through to 11 of the proceedings; PW2 on page 14 and 15 of the proceedings; PW3 on page 20 proceedings; and PW4 on page 25 of the proceedings where in his view, all the ingredients of Abduction under section 249 of the Penal Code were established. In respect of the first ingredient, the learned counsel contended that the same has been proved by PWl in the first paragraph of page 9 where PWl stated that the 1^ respondent took his hand and informed him that 4=r ♦ i he was taking him to Mallnyl to BIbi Kalembwani to shave his hair. He said, PWl refused but the respondent forced him. He further referred the Court to page 10 from last paragraph, where PWl explained what happened when they were at Bibi Kaiembwani's place. He averred that the evidence of PWl is corroborated by PW2 who was present when PWl was taken by force by the respondent as reflected on page 14 and 15 of the typed trial court proceedings. It was his further submission that the foregoing testimony is corroborated by PW4, the member of council of Kapoio hamlet who testified that he was called and found the 1^ respondent who wanted to take the victim to the traditional leader to shave his hair as reflected on page 25 and 26 of the proceedings. In Mr. Kabeiwa's opinion, the evidence prove that the respondent was Involved to take the victim. As regards to the 2"<^ ingredient, the state counsel contended that the testimony of PWl on page 10 of the proceedings reveal the manner the 1^ respondent together with his colleagues carried him and transported him from Kopoio Ifakara up to Malinyi. He said, the evidence is corroborated by that of PW2 on page 14 and 15 who testified what happened at the scene and how the 1^ respondent took the victim by force. He pointed out the testimony of PW3 on page 20 explaining the i • ( manner they found PWl under tight security by the respondent and Richard Nottor @ Mussa at Bibi Kalembwani. He submitted that the testimonies were weighty to prove the second count. On the third ingredient, the state counsel contended that the same was proved by PW3 who demonstrated that PWl was limited as he was restrained. He elaborated the testimony of PW3 that when he called PWl, he found him being secured by Richard Nottor and the 1^ respondent and that the 1^ respondent informed him that it was not easy to take PWl to that place and that they hired a car to transport him to Bibi Kalembwani. Fortified by the above evidence, it was Mr. Kabelwa's position that the evidence was sufficient to sustain conviction of the respondents. He prayed for the Court to allow the appeal, convict and sentence the respondents in accordance with the law. Arguing against the appeal, Mr. Malebeto drew the attention of the Court to the ingredients of the offence of Abduction under section 249 of the Penal Code as articulated in the case of Frenk Benson Msongole v. R, Criminal Appeal No. 72'A'of 2016 on page 15 of the decision. He Informed the Court that PWl and the respondent had a land dispute and that there were attempts to resolve the dispute by PW4 who was the Chairperson of the area. He said, the source of the criminal case was a land dispute. He further notified the Court that PWl,PW2 and PW5 are blood relatives. He therefore urged the Court to take caution in relying on the evidence of PWl,PW2 and PW5. In his further submissions, Mr. Malebeto referred the court to the testimony of PW4 who was the Chairperson of the area on page 25 of the proceedings. He said, there is nowhere In PW4's evidence where he stated that the I®' respondent kidnapped or took PWl by force to Bibi Kalembwani. He averred that there is no evidence as to the use of force in the evidence of PW4. He stated that the testimony of PW4 is corroborated by that of DW3 who was a tricycle driver who carried PWl and the 1®* respondent. He complained that the police officers took the statement of DW3 but the prosecution did not call him to testify. He submitted that DW3 testified that the I®'respondent came along with PWl and asked him to take them to bus stand and that it was PWl and the 1®' respondent who entered in the tricycle. To him, the evidence indicates that there was no force used but rather that PWl and the 1®'respondent agreed to go together to Bibi Kalembwani. 10 He contended that DWl testified that after being dropped by DW3, they waited for quite sometimes at the bus stand and that while in the bus, he sat at the front seat and PWl sat at the back. In his view, PWl would have reported to the police station or inform people or other passengers in the bus that he was abducted. He concluded that there cannot be an unlawful confinement in the circumstances. Pointing out more gaps in prosecution evidence, Mr. Malebeto remarked that even PW4's testimony does not indicate the kidnapping of PWl at the scene. He told the Court that the area was open and had so many people. Nonetheless, the learned counsel contended that the prosecution did not present an investigator to prove whether in his investigation, what happened was abduction or not. He concluded that the trial court was correct to find the respondents not guilty as the prosecution failed to prove the use of force. He insisted that the parties went to Bibi Kalembwani willingly and upon agreement between PWl and respondent. Based on the casted doubts on the prosecution evidence, the learned counsel prayed for the appeal to be dismissed and the trial court's decision to be upheld. 11 < 'k In the respondent's rejoinder submissions, Mr. Kabelwa insisted that the evidence of PWl and PW2 proved that there was use of force which led PWl to be taken to Maiinyi. As to Mr. Maiebeto's submissions that the evidence of PWl,PW2 and PW5 should be taken with caution as they are biood relatives, he submitted that the law does not prohibit blood relatives to testify in court if they are biood relatives. He cited the case of Alexander Peter Mvungi @ Alex Kandamiza v. R., Criminal Appeal No. 395 of 2019[2023] TZCA 17,952 on page 27 the Court of Appeal to fortify his assertions. The learned state counsel pressed that there was use of force in taking the victim from the scene to bibi Katembwani's place. He reiterated that PWl testified on the manner he was kept in the car and how the 2"^ respondent joined by entering In the car. He said PWl was an old man with 79 years old. In his view, PWl was restrained through the actions and conducts of the respondents which was done at night and in the circumstances PWl was kidnapped and transported. He insisted that the prosecution proved the offence beyond reasonable doubt. Regarding failure by the prosecution to present an investigator, Mr. Kabelwa was of a bold view that there was no any gap that the 12 investigator would have filled. He added that the investigator was not a material witness in the case. He submitted that the prosecution's witnesses who testified before the trial court managed to prove the offence beyond reasonable doubt. He urged the Court be pleased to accept the appeal and convict the and 2"^ respondents of the second count and sentence them accordingly. Upon considering the appellant's grounds of appeal and the parties' respective submissions for and against the same, my duty is to determine whether the appeal has merits. On that regard, I have taken liberty to combine the three grounds which are all revolving around the trial court's evaluation of evidence adduced before it. This court's conduct while sitting as the first appellate court is well settled. It is enjoined to revisit and scrutinize the evidence on the trial court's records and reach into its own independent conclusion. [See Mathayo Laurance William Mollel v. Republic^ Criminal Appeal No. 53 of 2020 [2023] TZCA 52(20 February 2023) on page 18]. Following the appellant's support of the trial court's acquittal of the respondents on the first count of gang robbery, I straight away turn to the second count relating to Abduction, an offence charged under sections 246 and 249 of the Penal Code in which the respondents were accused of 13 v- at the trial court. I am enjoined to determine whether, based on the evidence adduced at the trial, the trial court erred to acquit the respondents. For easy of reference, I wili reproduce the sections as hereunder: 246. A person who by force compels, or by deceitful means Induces, any person to go from any place Is said to abduct that person. 249. Anyperson who kidnaps or abducts a person with intent to cause thatperson to be secretly and wrongfully confined Is guUty of an offence and Is liable to Imprisonment for seven years. From the above provisions of the iaw the key eiements or ingredients of the offence of Abduction typicaliy include, among other ingredients, a proof that there was the use of force or deceit in making a person move from one place to another against his wiii intending to secretly and wrongfully confine him there or restraint his movement. As such, the question that should always be resolved is whether the evidence relied on by the prosecution unquestionably demonstrate that the act was carried out unlawfully and without the victim's consent. I have examined the evidence on record, the parties'submissions and the provisions of laws enunciated above. In an attempt to prove the eiements of the offence of Abduction against the victim, it was the prosecution's 14 evidence through the testimonies of PWl, PW2 and PW5, who eye witnessed the aileged abduction that the victim was forced to go to the traditional ieader by the respondent and iater on the 2"^ respondent who joined them at Malinyi to Mtlmbira. However, I hasten to state that from my closer examination of the prosecution evidence on Its whole, the testimonies of the three witnesses leaves a lot to be desired. The prosecution failed to prove the necessary ingredient of the offence of Abduction that the victim was forcefully compelled or kidnaped by the respondents with intent to cause him to be secretly and wrongfully confined. Reading the testimonies of the prosecution, it reveal that the arguments between the victim and the respondent that PW4 found them and PW2 testified to have witnessed, took place in public. More so, PW4's testimony does not reveal any use of force but only the intention of the respondent to take the victim to the traditional ieader. Again, the evidence on record reveal that the victim was carried onto the tricycle up to the bus stand. Both PWl (the victim) and DWl (the 1^ respondent) testified that they spent a 45/50 minutes at the bus stand waiting for the transport to take them to Bibi Kalembwani after the tricycle left them at Makali bus stand and upon obtaining ticket for the transport. 15 All the incidents that were stated by both PWl and DWl reveal that the victim had a chance to shout or Inform the people who were around all the places they passed with the 1=^ respondent, that he was under restraint or was being taken by force to the traditional leader. The victim did not show any resistance. He remained silent under all the Incidents and circumstances including at the bus stand where they waited for about 45 to 50 minutes, in motor vehicle make Noah, or In the other transport that took them to Malinyl to the traditional leader. The silence raise doubt as to the victim's unwillingness to go the place where he alleged to have been confined by the respondents. PW2 was the victim's biological child aged 34 years. PW5 was also a worker of the victim aged 18 years. PW4 was a leader of the hamlet who had the authority to call the police or raise alarm on breach of peace. They all witnessed the victim and the 1^ respondent arguing about the alleged 1^ respondent taking the victim to the traditional leader. However, no one assisted the victim. PW4 raised no alarm. Contrary to PWl's testimony that he was carried by the respondent and his colleagues to the tricycle In the presence of PW2 and PW5, DW3 the driver of tricycle testified that It was only PWl and the 1^ respondent who entered his tricycle as passengers. Again, when cross examined, PW4 testified: 16 ^ ''Mr. Masaia called me there he told me Mkomawagl'arrested me for witchcraft this they wanted to take him to shave atthe traditional leader. Iadvised them to seat and talk. There was no quarrel there. Based on the above testimonies and circumstances, I do not find any signs that there was kidnapping or abduction of PWl by DWl and DW2 with intent to cause PWl to be secretly and wrongfully confined. As to the ingredient of use of force or compulsion in proving the offence of Abduction, the Court of Appeal in Frenk Benson Msongole (supra), held on page 15 of its decision as follows: 'Tn terms ofthe law, the essential elements in the offence of at)ductlon Include compulsion by force or by deceitful means Inducing a person to go from any place and wrongfully confining such person. The question to be addressed is ifthe prosecution did parade the evidence to prove the commission ofthe offence ofabduction? We are inclined to answer this in the negative because according to the evidence ofPWl, she voluntarily agreed with the appellant to go Lake Rukwa, Vwawa and Tunduma and cohabit as wife and husband. As such, there is no scintilla ofevidence thatPWl was abducted and wrongfully confined by the appeiiant" In the case at hand, the victim's silence and inaction while in public places and public transports create reasonable doubt on the prosecution 17 ^ 1 ^ s» allegation that he was truly transported against his will. In my considered view, It was expected for an adult of the victim's age to raise an alarm seeking help in such a situation where his freedom of movement was at stake. In the absence of the explanation by the victim as to why he chose to remain silent, I am fortified to hold that the foregoing has dismantled the credibility of the three prosecution witnesses'account and has fortified the respondent's defence that they agreed with the victim to go to the traditional leader for cleansing witchcraft. Again, it is plain through the evidence of PWl, PW2, PW4, and PW5 that the incident took place openly, and that the respondent made it known to everyone who was at the scene that they were going to the traditional leader for cleansing. On page 14 of the typed proceedings, PW2 testified: „ When the meeting was dosed Mr. Mkomawagishouted at my father Mr. Massaia that he is a witch and that he wiii take him to shave that witchcraftatkwa bibi. Aii those Imentioned were there and they heard him;I and my father denied but Mkomawagisaid he wiii take him by force... In a similar vein, on page 25 of the typed proceedings, the relevant piece of PW4's testimony was that: 'Tew meters like 150 meters J heard someone calling me at the place we left. I went back allowing Fransis to leave; there were many people there but Masala, Mkomawagi, Silvester, 18 ^ S/?/ja and other neighbours were also there;I was toid by Mr, Masaia there "Mwenyekiti mimi nimekamatwa uchawi na Mkomawagi"he was there stating that Mkomawagi wanted to take him to shave at a traditional leader. I toid them the governmentdo notdeal with witchcraftIam notdealing with. That, ifyou wanted thatgetseated and settle. ThereIdid not know how do they go, we were at the road, near the road." With such account of key prosecution witnesses, it cannot at any rate be safely concluded that the respondent intended to secretly confine the victim at Bibi Kalembwani's place. This also explains the reason it was even easier to arrest the respondent as the place that the respondent was going with the victim was known to everyone who was present at the scene. In view of the gaps pointed above in the prosecution's evidence against the respondents, I hold that the appellant's appeal is unjustified and unsubstantiated. It is clear from the evidence on record that the victim voluntarily went to the place and that the respondents' intention to have him secretly confined in the place was not proved by the prosecution as required under the provision of section 249 of the Penal Code. As such, I am unable to Interfere with the trial court's findings, I confirm that indeed the prosecution failed to prove the offence of Abduction 19 % ^ Jk charged under section 246 and 249 of the Penal Code to the required standards. The appeal is dismissed in its entirety for want of merit. It is so ordered. Right of appeal fully explained. DATED at MOROGORO this 13'^ day of December 2024. Or o H. A. KINYAKA c (-9 n JUDGE X LU 13/12/2024 20