20120624 TZHC Iringa

IN THE HIGH COURT OF TANZANIA AT IRINGA · -· (DC) CRIMINAL APPEAL NO. 40 OF 2012 (Originating from Criminal Case No. 97 of 2012 of the District Court of Njombe · -:pistrict at Njombe Before J.S.K. Hassan - S.R.M.) 1. FRANCE SIMON NJAVIKE JUMA I ...... APPELLANTS 2. VENANCEBABU MBARUKU J -· ·VERSUS · THE REPUBLIC ................... RESPONDENT 3/5/2014 & 6/6/2014··

JUDGEMENT MADAM SHANGALI, J. The appellants Francis Simon Njavike Juma and Venance Babu Mbaruku were jointly and together charged and. convicted by the trial District Court at Njombe on three counts namely; Conspiracy to commit offence c / s 384 of the Penal Code, Cap. 16; Unlawfully possession of firearm c/s 4 (1) (a) and . Section 34 ·of the Arms and Ammunition Act, Cap. 233 .. and Unlawful p~ssession ofammu~ition c/s 4 (1) (a) and 34 of - - ~the Arms and Ammunifion Act, Cap~ 223. On the first count , ~ ·- 1 the appellants ·were both sentenced to serve. three years imprisonment a.rid_ on second and third counts they were each sentenced- to· serve seven years imprisonment on each count. The trial District Court ordered the sentences to run concurrently. Dissatisfied with that . decision the appellants. have preferred this appeal. The salie11t facts g1v1ng nse to this appeal are not very clear, because the language used by the trial resident ·• Magistrate is son1ehow incdmprehensible. As a result, this being the first appeal and being a,vare of the trite principle that an appellate court will- not lightly interfere in the trial court's finding on credibility ·- unless the evidence reveals fundamental factors of vitiating nature to which the trial court did not address properly, I decided to take pain to scan the whole evidence critically in order to make my own assessment and•

conclusion. The facts of the case may briefly and conveniently be stated as follows; PW.2, Emmanuel Method was employed as a driver in the offices of one Mtewele. On 21/3/2012 he (PW.2) was telephoned through his mobile phorie by the 2 nd accused/appellant Venance Babu Mb~uku@ Muba who was familiar to him asking for a· short talk or discussion. PW.2 promised to -meet tlie 2nd appellant on the next day " 22/3/2012. o·n 22/3/2012 they met at the Dispensary area 2 a...ri.d the 2 nd appellant revealed to P\M:2 that he ,·was in need of assistance from him 'because he ·was intending to ·steal money from Mtewele offices where he (PW.2) was working as a driver. PW.2 was shocked by the news but decided to encourage the 2 nd appellant in order to know the whole· plot. In their conversation, · the 2 nd appellant informed PW.2 ·that he. was , intending to carry" ·out the pi~ with his ,friend, who -o~s a pistol. PW.2 promised to assist them and they agreed to meet on the following day i.e. 23/3/2012 together with the alleged friend. _4 · From there PW.2 went straight to his boss and informed _him about the plot. The matter was reported . at the police . . . . . -. station Njombe and im1nediately the. QC-CID - SP Kamugisha (PW. 4} started to set a trap in order to arrest the culprits. Several police officers were: involved· in the exercise including . PW.3 D/Sgt. Stanslaus, .PW.5 D/Sgt.

Sankey and PW.6 PC .. Adam. On 23/3/2012 the 2 nd appellant informed PW.2 that their intended meeting could not be held because his friend had special matter at Mafinga. The meeting was adjourned to 24/3/2012. On the early morning of 24/3/2012 the 2 nd appellant informed PW.2 through the mobile phone that the alleged friend had arrived and that he should proceed to collect him with his • motor vehicle at Monica Hotel where he was lodgin'g. ~ ., . 3 At this time PV\7:2 vvas also communicating ·with P\til.4 (OC-CJD) through the mo bile phone on the progress of the plot .. .PW .2 then proceeded to the said Monica Hotel while driving his office motor vehicle to collect the alleged friend in that early morning. On reaching at Monica._Hotet, PW:2 saw a person who . -1 straight followed . his .. motor vehicle, opened the door and jumped in. - The man happened to be the 1st appellant. Then PW:2 informed the 2rid appellant .Jhrough the mobile phone that he had already picked the aileged in:art at the H·otel. The ." · 2 nd appella....-it directed PW."2 to proceed to his house (2 nd appellant's) at Mjimwema · area~ · While· on · the way to ~·- .~ ... Mjiri1wema, PW.2 had·. an. opportunity of having a short -·discussion with the man (1 st' appellant) arid witnessed him busy- preparing his pistol while boasting to _accomplish the mission successfully. · When they reached at the hous_e of

the 2 nd appellant, !hey picked him in the motor vehicie and proceeded to M te\\1ele offices where PW.2 showed them the premises and how to enter to. the required office. At that time PW .2 declined to continue to use his office motor vehicle in the execution of the plot. As a result and while they were waiting for the' offices to be opened the 2 nd appellant decided to rush away· to hire a motor cycle for the exercise. PW.2 and the 1 st appellant pro~eeded to a ne~by Turbo Hall ~for _bre~kfast. At that time. .• ' 4 .• . P\V.4 and a good number of police officers ·were taking their position within the vicinity of. Mtewele offices· in order to arrest the culprits in action., The 2 nd appellant managed to hire a motor cycle _Reg. No. T 762 BIT from· PW. I Geofrey Mgaya. He then proceeded to pick ·the 1 st appellant and proceeded to accomplish their illegal mission but when they reached at Mtewele offices they saw a parked motor vehicle known to have been owned by one police officer. They smelt a rat. Suddenly the appellants turned their motor cycle and speed off· from the scene. The police started to search for them. PW,.2 managed to contact the 2 nd appellant through the mobile phone. PW . 2 joined the police in another motor vehicle and managed to arrest the appellants at Sido Street. During the arrest the 1st-appellant attempted to resist the arrest and in that fracas he drew

his pistol and eventually dropped it. The pistol was· quickly picked by PW.2 who handed it over to PW.5 D/SSgt. Sankey. PW.7 Agness Mtenga, an attendant at the Mtewel~ offices testified on how he saw the appellants and PW.2 at the office area in the early morning of 24/3/2012, when she was cleaning the offices. She also confirmed to have witnessed a good number of police officers within the office area on the same day. PW.8 Eliada Mtweve an attendant at Monica Hotel confirmed to have received and attended the 1 st appellant who o.ccupied. room No·..- 12 at . the Hotel ·from .23/3/2012. . ~ .. - .. '. .·. . ··'·1~ . The 5 ' :., "'. ;;, ~ . _ ;.,._ ~ -_,._.~..,. ,.,5-. ~::~t :; ~:~- :.<'~- ·. ~1; ~ ~/~-:-· , . , prosecution case-. was also supported by the 1 st appellantls ,., .~~;t ...-t~ r·!l' Caution· Statement (Exhibit P.1) which was recorded by PW.3 7t:,(. :,:.'-' D / SSgt Stanslaus and the 2nd appellant's Caution Statement (Exhibit P. 7) which was recorded by PW.5 D/SSgt. Sankey. The · pistol,· Browning make No. 049215 made 1n Czechoslovakia was marked Exhibit PW.2 while the six round of ammunition found in the said pistol_ were marked Exhibi~ P. 3 c_ollectively. The ·rnoto:r cycle hired from. PW .1 was marked Exhibit P.4; · ·. ·· · ··In their defences· both- appellants flatly ·denied to have · comrp.itted ap.y· offence. The 1 st appellant claimed that his riame is Junia

Nkwabi and that he went to Njombe and slept at Monica Guest House. Then, the 2 nd appellant who was his partner in spatepart~.-bu•siness sent him a car to pick him in order to meet at a ·certain garage .. That, ·while at the said · garage they were both arrested by the police, searched and later charged. The 1st appellant claimed that the testimony of PW.2, PW.3, PW.4, PW.5, PW.6, and PW.7 against him is. nothing but pure lies because he was not arrested with any weapon. He also stated ~hat the alleged caution statement was not read to him and that he was forced to sign it. The 2 nd appellanf claimed that on 24/3/2012 at about 07.00 a.m. PW.2 asked him to meet at the back of Dispensary area. That when. he reached at the dispensary area he met · PW ..2 w,ho was in the .Gompany of a man who was introduced 6 -··-· to· him as his friend Francis Njavike (1 st appellant). The 211:a appellant claimed that PW. 2 was in need. of his n1otor vehicle but he (2 nd appellant) told him that his motor vehicle was not mechanically fit and it was in the hand of one Magoda: The ·- 2nd app.ellant stated that it was ·his first time to meet the 1 st appellant and he has never conspired with him to commit any offence. · He·: claimed that when they were at the garage the · · police arrived and arrested them. The 2 nd appellant testified to the effect that during the arrest there· was a

commotion between the 1st appellant and the police because the 1st appellant was attempting to resist _the arrest. That, in that . "'· fracas the -l_ st appellant dropped a pistol from· his coat and the ,1,1 police picked it. He also claimed that while at the police station they were tort~red. Basing on that evidence the trial Resident Magistrate convicted and sentenced the appellants as aforesaid. In this appeal each appellant has raise~ his . memorandum of appeal containing several grounds of appeal, but the main ground of appeal from both memorandums is that there was no sufficient prosecution evidence to warrant a conviction against them. The 1st appellant also co:qiplained tqat the trial Magistrate refused to give him an opportunity to call h~s witness who was present at the time of his arrest. The appellants also complained that their caution statement~ were ·not obta_ined voluntarily b.ecau~.e ... they ~~r~ tqrt-µred; intimidated and forced to sign the same. 7 ... .. · During the. hearing of the appeal .the 1st appellant claimed that he was .not arrested. in possession of any weapon and that the alleged robbery offence was fabricated by the po.lice· against him. He claimed that during the arrest they . ·. were. beaten and tortured. and eventually forced to sign the .caut_ion statements. He stated that his witness wa~ _nq_~ -~iven ·an· opportunity to adduce eviderice and

that his PF.3 waS' .. confi~cated by the police who forced him to sign the caution statement on 28/3/2012. · The 2 nd appellant- claimed that_ PW.2 was telling li~s . . . against him because ·he ,vas not arrested ·in ··poss_ession 9f. any . . weapon or ammunition. He also elaimed that his witness, the garage owner was refused-to testify although he was present in .. court on 13/8/2012. In response, Ms. Maziku, learned State Attorney who represented the respondent/Republic supported the conviction and sentence imposed against the 1 st _appellant on both counts. Regarding to the. 2 nd appellant the learned State Attorney supported the conviction and sentence on the first count only and categorically stated that there is no evidence to show that the 2 nd appellant was found in possession of any firearm or ammunition. She submitted to the effect that the prosecution case was proved beyorid reasonable doubt and the testimony of PW.2 indicate clearly that there was a conspiracy ~ ... between th~ appellants to commit a sefious offence of robbery. ·- 8 . .-, 't .. ... . ... .. .,., - . .. The learned State Attorney insisted that the evidence of PVl. 1, PW.2, PW.-3, PW.4, PW.5, PW.6, PW.7 and PW.8 is duly supported by the caution statements cif the appellants which were not objected ·during their production and admission as exhibits in court. She further stated that, the allegation

that the appellants we1:e · t<:>.rture1, ·intimidated and forced to· sign the caution statements were not raised during its production and therefore the appellants can not raise them now. Having dispassionately studied the available prosecution evidence vis-avis the defence evidence I am constrained to -~-- agree ~th the learned Stat~ Attorney that there was sufficient and credible prosecution evidence to connect the 1 st appellant with both three counts. PW.2 was invited to JOln the conspiracy to commit the offence of armed rob~ery by the appellant. PW.2 decided to report the matter to his bo.ss and eventually to the police. The police used him in their trap as their informer in order to arrest the appellants. Unfortunately . the appellants managed to ·unset the trap when they· saw the vehicle commonly used by the police parked at the scene. They speedily drove their motor vehicle away. However, the evidence indicate that they were followed up and later arrested through the efforts of PW.2 who was still communicating with them through the mobile phone. During the arrest the 1 st appellant attempted to resist the arrested and in the fracas he drew his pistol which fell on the ground ai;id immediately was ·picked up by P\\(2. The avaii~ble pros,ecution' evidertce is 9 " ~:: •; ·• ,t ·,""-;,. ,: .... -; :_; ,.,~.1~:. •.,. ;; '· enough to sustain conviction and sentences· against

the 1st appellant but then there is more evidence from defence side supporting the prosecution evidence. This is the evidence .. from the - 2 nd appellant who admitted to have witnessed the fracas between the l st ·appella.!1:t_ and the police to the extent of 1 st appellant dropping. his pistol. The learned State . Attorney is also correct that the caution statements of the appellants were recorded in accordance to the law and that there was no objection raised by the ·appellants during their .,. production_ and admission. The · allegation that the appellants were tortured, intimidated and · fo~ced to sig1!: ·the caution statements are being raised at the , ~ t ·i.:. _.. .• • . ... appellate :stage .. During the trial the appellants claimed that they were forced to sign the caution statements but they never •. ... . stated or described the type of force used against them. In my considered opinion, the issue of torture, intimidation and beatings is nothing but an afterthought. Both caution statements were voluntarily niade by the appellants. Again, on the basis of the available evidence I agree with the learned State Attorney that there js sufficient evidence to sustain conviction and sentence against the 2 nd appellant ·on the first count of conspiracy. It was through conspiratorial exercise between the appellants that brought PW. 2 to the picture hence the police intervention

and the failed trap. · In .. fny considered opinion, ·the., available .pxo.secution evidence and 10 r .., •. ' the seouence of events clearlv sho,,1 that the case against the ~ J ·appellants was•not a fabricated story: I have also considered the complaint that the appellants were not afforded an opportunity to call their witnesse_s or that their witnesses were refused to adduce evidence. This complaint have no merits because there is no evidence on the · trial court's record of proceedings showing that the appellants were denied their right to call witnesses or their witnesses were available in court but refused to testify. The record is clear that during the Preliminary hearing there was no~list of defence witnesse·s and during trial there was no application to call -a:ny defence witness. On the basis of the same available evidence, -I concur with the learned State Attorney that there was no sufficient prosecution evidence to convict the 2 nd appellant on the 2 nd count of unlawful possession of firearm and 3 rd count of unlawful possession of ammunition. The person who was found in possession of firearm and ammunition is the 1 st appellant. In the upshot and for the reasons demonstrated above, I am satisfied that the appeal by the 1 st appellant was lodged without sufficient grounds and it is hereby dismissed in its entirety on both ~ounts. The appeal against the 2 nd

appellant - "; • ,., on the first count of cq~spiracy is ~qual_ly. dlsr:nissed;. but -the · . • ·, ·•t I ' : .,. ,.. ' • .,,. •1 •~,• ..-..,_ O; 11 ..... ""'. ........ ·- ., ..•/•. · . ....., 1 .. :..-;, .-s :► · .: - ·:.:: ·.:, i . ,..· .. -·--1 ..~ .·~.. :.· . ., · appeal against. 2 nd count and 3 rd count is alloVired .. In the result the conviction and sentences imposed against the· 2 nd appellant on 2 nd and 3 rd counts are quashed and set aside. M. S. SHANGALI

JUDGE 6.6.2014 Judgement delivered todate. 6/6/2014 . - in the presence of" Ms. Kas·ana Maziku, learrted State Attorney representing the_ respondent/Republic and in the presence of the appellants in person.· M. S. SHANGALI

JUDGE 6.6.2014 . Court:- Right of appeal explained. M. S. SHANGALI

JUDGE 6.6.2014 ..... 12 · ... .,,.-;_., ;_,-,.-·· JW t:~•~•:~;_.: ...'•t.-.~ f;~.~_.: :~~:~~:.; ·-,~ ''." .:....;,.._:.... •w •j•.•• ,· --'"'!'••,,· • . ,!. ,. .,.J ••.• ~• :. ~- • 1'', I a : -:• '~.~: ...... .. ,, . ' ;,;,, ~; ·, ,I •• . _:,. •,,./ ;\. •· M: S. SHANGALI

JUDGE I. · - 24.6.2012 -~'!- .&.----·--· .{:~f .,1, 13 ·,._;... ~, -'~- ..,... ,.