john njenga njau another vs republic 2006 tzhc 301 31 may 2006

IN THE HIGH COURT OF TANZANIA ATMOSHI (DC) CRIMINAL APPEAL NO.7 OF 2002 (C/F DISTRICT COURT ROMBO CR.CASE NO.4 OF 2002) 1. JOHN NJENGA NJAU 2. SAMWEL KAURA MASHALYA.................... APPELLANTS VERSUS THE REPUBLIC.................................................RESPONDENT. JUDGEMENT JUNDU, J. The Appellants, in the trial court were charged of being found in unlawful possession o f firearm c/s 13(1) and 31 of the Arms and Ammunition Ordance, Cap.223 of the laws read together with paragraph 21 of the 1st Schedule to and Section 56(1) and 59(2) o f the Economic and Organized Crime Control Act.No.13 o f 1984 as amended by Act No. 10 o f 1989 and Act No.3 o f 1992. The particulars of the offence were that the Appellants jointly and together on 6th day o f May, 2000 at about 21.00 hours at Holili village, within Rombo District in Kilimanjaro Region, were found in unlawful possession o f one home made gun without being in possession of a licence in respect thereof. Having heard the evidence of the prosecution witnesses and the defence side the trial magistrate was satisfied that the prosecution witnesses in their evidence had proved the guilty o f the Appellants for the offence which they were charged with beyond reasonable doubt. He convicted them and sentenced them to ten (10) years imprisonment each. Aggrieved by the said conviction and sentence the Appellants have appealed to this court listing seven (7) grounds o f appeal namely:- (1) That, the appellants denied the charge o f being in possession of the firearm hence the prosecution side never proved the charge beyond reasonable doubt as required by the criminal laws. (2) That, the trial magistrate clearly erred in law for not considering that there was a lot of contradictions between the prosecution witnesses and the trial court could had warm itself before accepting their evidence. (3) That, the trial magistrate erred in law and fact for convicting the appellants without proper corroboration o f the prosecution witnesses. (4) That, the trial magistrate failed to note that the twins bar and guest is a licensed guest and therefore the guest attendant failed to tender the rent receipt to prove that the second appellant booked the room. The statement which was stated by the guest attendant was not sufficient enough to be accepted as an evidence. (5) That, the trial magistrate also failed to consider that the appellants had grudges with some o f the prosecution witnesses before the alleged offence took place. (6) That, the trial magistrate grossly erred in law and fact for not considering the defence of the Appellants o f which it was watertight and corroborative in itself. (7) That, as most o f the prosecution witnesses were police officers, they failed to prove beyond reasonable doubt as to who was found in possession o f the alleged firearm. The question is does it prove to be a well cooked charge? Based on the aforesaid grounds o f appeal, the Appellants in their Memorandum o f Appeal prayed to this court to allow the appeal, quash and set aside the conviction and sentence met on them by the trial magistrate and set them free. The Appellants prosecuted the appeal for themselves while Miss. Rugaihuruza, learned State Attorney represented the Republic/Respondent. She supported conviction and sentence imposed on the Appellants by the trial magistrate. In my considered view, though the Appellants have listed seven (7) grounds of appeal in their Memorandum of Appeal, the main contention is that the prosecution did not prove the guilty of the Appellants beyond reasonable doubt. However, Miss Rugaihuruza in her submission strongly contended that the evidence on record shows that the prosecution witnesses had proved its case against the Appellants beyond reasonable doubt. Therefore, the issue to be considered and determined by this court in this appeal is whether the evidence of the prosecution witnesses in the trial court did prove the offence which the Appellants were charged of beyond reasonable doubt as required by law. Miss.Rugaihuruza in her submission revisited the evidence of the prosecution witness on record particularly the evidence of P.W .l, P.W.2, P.W.3 and P.W.4 and Exhibits P I, P2, P3, P4 and P5. In short, she submitted that the Appellants were arrested at Twins Bar and upon being searched they were found with a home made gun (Exhibit “P I”), a piece o f an iron bar (Exhibit “P2”) and a panga (exhibit “P3”) in their hotel room. She further contended that the Appellants in their caution statements (Exhibits “P4” and “P5”) had admitted to have been found with the home made gun (Exhibit “P I”). She contended that Exhibits “P4” and "P5” were corroborated by the evidence o f P.W .l, P.W.2, P.W.3 and P.W.4 who were the witnesses. She further submitted that the complaint of the Appellants in ground 2 that there were contradictions in the evidence o f the prosecution witnesses and that there were grudges with the prosecution witnesses as stated in ground 5 of the appeal have both no merit in view of the evidence o f the prosecution which was watertight. She contended that the prosecution witnesses had proved the charge against the Appellants in the trial court beyond reasonable doubt and that the appeal has no merit at all. She prayed to this court to dismiss the appeal and uphold the conviction and sentence inflicted by the trial magistrate on the Appellants. The Appellants in their rejoinder submission strongly challenged the evidence o f the prosecution witnesses adduced in the trial court in that it did not prove the charge against them beyond reasonable doubt. They contended that there was contradiction in the evidence o f the prosecution witnesses at the trial court. The 1st Appellant in his rejoinder submission contended that the caution statement, that is Exhibits “P4” and “P5” had no truth and were not recorded as required under the provisions of the Criminal Procedure Act, 1985. He further contended that he and the 2nd Appellant had repudiated them during trial hence the trial Magistrate in law should have conducted trial within trial to determine whether the same were voluntarily taken or not but the trial Magistrate did not do so. As regards contradiction in the evidence o f the prosecution witnesses, he contended that this was in relation to the exhibits tendered by them and admitted by the trial court. He stated that whereas P.W .l and P.W.2 in their evidence contended that the home made gun (gobore), that is Exhibit “P I” was found with the 2nd Appellant, P.W.3 and P.W.4 in their evidence contended that the said gun was found with him, the 1st Appellant. He further contended that this contradiction in the evidence of P.W. 1, P.W.2, P.W.3 and P.W.4 is further contradicted by the fact that in the statement of P.W.2 at the police station which he, the 1st Appellant had produced in the trial court as Exhibit “D l”, P.W.2 stated that nothing was found with the 1st Appellant when searched. The 1st Appellant further contended in his rejoinder submission that nothing was found with them when searched. He contended that in the trial court he had requested the trial magistrate to order the prosecution side to bring the Occurrence Register (or OB Register) o f the Holili Police Station which would have indicated if they were found with anything when searched but the said register was not brought to the said court. He contended that all the exhibits produced by the prosecution witnesses at the trial were not found with them when arrested and searched but were brought at the Mkuu Rombo Police Station after they were arrested. He further contended that Exhibit “P 1” when tendered in the trial court, the prosecution side contended that it was a home made gun (“gobore”) but the prosecution side did not bring any expert to adduce expert evidence that it was a gun or firearm and that without such evidence it left doubt in the prosecution evidence whether the said exhibit was a gun or not. He referred this court to a decision of the Court o f Appeal of Tanzania in the case of Joseph Mnene & Another Vs.R Criminal Appeal No. 109/2002, Arusha Registry (unreported) which he could not produce a copy but he contended the said court held in the said case that there was a need to have expert evidence in such situation. j The 1st Appellant further contended that it was not true that they were at the Twins Guest House because though the prosecution witnesses in the trial court contended that on the material day the Appellants were arrested at 21:00 hours which time people have not yet gone to sleep it was surprising to find that only one civilian witnessed their arrest and all the remaining witnesses were policemen. He further contended that the prosecution case was not proved beyond reasonable doubt as it had no corroboration as required under Section 110 o f the Evidence Act, 1967. The 2nd Appellant in his rejoinder submission contended that there was contradiction in the evidence of the prosecution witnesses and had no corroboration. He contended that P.W.l and P.W.2 in their evidence at the trial court alleged that they had searched him and found him with a home made gun but the said evidence was not corroborated by the other prosecution witnesses that is PW.3 and PW.4 because these latter two witnesses in their evidence had stated that he was found with nothing though all witnesses alleged to have been at the secene of crime. He contended that this shows that the case was faked against them as it does not come into mind for the witnesses to contradict each other while all o f them contended in their evidence to have been present at the time of arrest and witnessed the said search. He further contended that PW.4 in his evidence had alleged that the Appellants were staying in guest house room but there was no evidence that was brought by the prosecution witnesses specifically the guests’ register of the particular guest house or the guest house receipts to show that the Appellants were residing in the alleged guest house. He prayed to this court to carefully revaluate the evidence on record adduced in the trial court because in his view the prosecution evidence in the said court did not prove the guilty o f the Appellants beyond reasonable doubt. I have carefully considered the grounds of appeal in the Memorandum of Appeal filed by the Appellants in this court and the submission of Miss.Rugaihuruza the learned State Attorney as well as the arguments of the Appellants they have stated before this court. I have read the record of the proceedings o f the trial court as well as the judgment thereof. As I had earlier stated the main issue is whether the evidence of the prosecution witnesses did prove the offence which the Appellants were charged of beyond reasonable doubt as required by law. In short, the trial magistrate found that the evidence o f the prosecution witnesses P.W .l, P.W.2, P.W.3, and P.W.5 plus the Exhibits, P2 and P3 had proved the charge against the Appellants beyond reasonable doubt. This is the position or stand taken by the Republic before this court. However, the Appellants in their Memorandum o f Appeal and in their rejoinder submission have pointed shortfalls in the evidence of the prosecution witnesses which they argued that the trial magistrate had erred. The prosecution witnesses in the trial court alleged that upon arrest and search o f the Appellants in the guest house room they had stayed they were found with a home made gun (gobore), a panga and a piece of an iron bar. However, though the prosecution side contended that the search was witnessed by the guest house attendant (P.W.4), nothing was reduced in writing to evidence the items found in the said search and those who witnessed it. P.W .l and P.W.2 in their evidence contended that the home made gun (gobore) in the said search was found with the 2nd Appellant but P.W.3 and P.W.4 in their evidence alleged that the said gun was found with the 1st Appellant in the said search. This contradiction in the evidence of the prosecution witnesses was not considered by the trial magistrate. Worse, P.W.2 in his statement (Exhibit “D l”) at the police station stated that the Second Appellant was found with nothing. In my considered view, this contradiction in the evidence o f the prosecution witnesses weakened its case. The Appellants contended that their caution statement were not taken freely and that they had repudiated them during trial but the trial magistrate did not conduct trial within trial to determine whether the same were taken freely or not. My close perusal o f the record of the proceedings of the trial court shows that the caution statements of the Appellants were admitted as Exhibits “P4” and “P5”. There is no express statement of the Appellants in the proceedings to show that they had repudiated the said caution statements during trial in the court below. However, P.W.3 who took down or wrote the said statements from the Appellants during cross-examination by the Appellants replied that the statements were “freely” made by the Appellants. I am convinced from this reply o f the said witness that impliedly the Appellants had contended that the said statement were “not freely” made. If this contention is correct, their there was an issue before the trial magistrate as to whether the said caution statements were freely made or not. I agree in such a situation the trial magistrate ought to have determined whether the said caution statements were freely or voluntarily made. It was not sufficient to act on the mere reply of P.W.3 in the cross-examination that the caution statements (Exhibits “P4” and “P5”) were freely made. PW.4 was the guest house attendant in which the Appellants were alleged to have taken a room and stayed.' The evidence o f the prosecution witnesses was to the effect that the Appellants were arrested and searched in the room they had taken. However, P.W. 1, P.W.2 and P.W.3 all o f them police investigators did not state which room were the Appellants found in. P.W.3 in his evidence alleged that the rooms were not numbered while P.W.4 the guest house attendant alleged that the Appellants were staying in room number two. However, no evidence in writing was produced in the trial court to show that the Appellants had been lodged in the said room and that is the room they were arrested and searched and found with the items alleged to have been found with them during the search. Since P.W.4 in his evidence had alleged that the 1st Appellant had paid shs. 1,000/= for the room, then at least payment receipt book should have been tendered in the trial court to that effect, if the Appellant did not yet sign the guest house register as alleged by the said witness in his evidence. This piece of evidence was not considered by the trial Magistrate. In the upshot, this appeal has merit. It is hereby allowed. I hereby quash and set aside conviction and sentence imposed on the Appellants by the trial ~ ' >lawfully held under F.A.RJUNDU JU D GE 31/5/2006 F.A .R JU N D U JU D GE 31/5/2006 Date: 31/5/2006 Coram: F.A.R.Jundu,J For the 1st Appellant: Present 2nd Appellant: Present For the Respondent:Mr.Maugo, State Attorney CC:Mattiku (Mrs) C o u rt: Judgment delivered in the presence o f the Appellants and Mr.Maugo, learned State Attorney for the Republic/Respondent. F.A .R JU N D U JUDGE 31/5/2006 AT M OSHI.