19761222 TZHC Arusha

IN THE HIGJ COURT OF. TANZANIA AT ARUSHA •.APPELLAE JURISDICTION HIGH COURT CRIMINAL APPEAL NO. 84 OF 1976 ' C/F CR. APPEALS NOS.105, 106108, and119/76 6 ORIGINAL •'CRIMINAL CASE NO. 109 OF 1975 • OF THE DISTRICT. COURT OF KILIMANJ'ARO PISTRICT AT MOSI-lI Before P.A. Msiska Esq.,---------- - Chief Resi'ent Magistraa / LADDY }(IMAEO & 5 OTHERS ----------------- APPELLANTS (Original Accused) versus THE REPU3I1IC- -------------- ------------• RESP0NDENT. (Original Prosccutor)

JUDGMENT NyalaLi, J. This1s a cons.A1dat1 aepoal of five appeals an not six ippeals as suggestel by the criminal regist r. The- error in the regist-r arises ot'of - the fa-ct,that one of, the app],l'ant namely Stopheii Mug'm1 subinitte.i two petitions Lf appeal, the first no which lc to th opening of Criminal Appeal No. 108 of 1976, was apparently personally prepared by him, ni theseccni petition which resulted in the opening of Crima.nal Appeal No. 119 of 1976 ,was prepare1 by his A.ivocate. The other f cur appellants are La44y Kinabc appcarix9' in Criminal Appeal No. 84 of 1976; Joseph slo Bingiliki (appoaring in Criminal Appeal No. 105 of 1976), Is - ick s/ Moses(ppering in Criminal Appeal No. 106 cf, 1976) anfJhn s/o Masa (appearing in Criminl Appal No. 107 of 1976. The five app.1l*nts Were charge] and onvictei in thc listrict court of Moshi district at W.shi with the offence of Robery with va.l nce c/s 285 and 286 of the Penal Cole an] were each sontoncel to 8 years jail but no order of compensation was rn under th' man 1 atcry provisions (f the Minimum Sertencos Act 1972. Thc oinnhission will be rcctifid by this Court if thc c'nvicti ns are supportable. In th lower court the fir- st accused was Stephcn Mugmi, the sacni accused was Issack s/o MUSeS, the third iccus was L'a"ldy ' s/o K1nar, the fourth accused was Joseph s/c ,ngiliki,an 1 thc fifth 1 last accused was Tohn

sit' Mgasa. For purp - ses cf clarity, these appearancLs in the lower dourt are usol in these prccecLns. M. Kn.kima, learned Advocate appears fr the 1st accused in thi.-q cIL appeal, ani Mr. Niranthc, le'rneJ Mv cate, appears f r tho third accus.J. The other accus1 persons who are not represent1 in this appLal, dii nct wish tc appear. Briefly, the facts of the case acccrdfl to t-he'r'oeciition. arc thjt on the 15/1/75 P.W 1 was at his - horno at Old'Möhi; Kilia, when 'he five accused persons visited.-.him at about 4.00 p.m. The 4th and 5th' Accused persons, produced identification cards and introduced themSelves as police fficrs and requ sted to scrch P.W l's husc fr illicit gemstones. They, did sc and appeared t have found s mething in a paper packet. The 4th ani 5th accusel were armed with pistols and they placel P.W 1 under arrest.. 'Thereafter they XW'claimed that they hai to take P.W Ito Police Station Mcshi,. PW,1s'.-peugeot motor— - -• - vehicle was used in transporting PI.W 1. an sm'e r the -- accused persons, while the cther accused perscns travelled in vcxwgón vehicle \hich was usod in bringing all the accused pers ns t' P.W 1s home. •...... ./2 V — —2- The accused persons 'and P.W 1 hoever went through Moshi town without stopping, endon the pretext 'of g;ing first to report to a senior police officer at his hme, the accused 'persons to'k the POW I along old Arusha roai and stopped at Karange bridge.

1. Th'e 7 then demanded' msney fr:;'m pow i. anl threatened to shoot or dumpP.W 1. over.the bridge ansi fake an accidontifP0W 1 refused to gfve him money. pW 1 cfferei shs. 1000/— but the accusel took all the money he had amounting tçsHs'.3 LQ.00/—.. The 'eccused persons then abandoned. P.W I unharmed with his' mctcr, vehicle. P0W 1. drove back home where he was advisd by his relatives t report. tc plice station0 H'a 'lid so the follcwin day." As a result, the accused persons were arrested at various dates. The "accused i5ersons in their def.ecQ at the trial denied the prosecution case End each put forth an alibi. The trial ceurt rejected the alibis, accepted the 'prosecuti -. rI' case and convicted each of the accused persons. . .... • The thrust of the submissions made by learnud Advocates who arqued this appeal is thit the entire proscuti n casc. rests on the' credibility of' p.w; 1, .hutwhese' story is, so trange that 'he cc'uld not have told the. truth. 1r. Mwale larnedstate, Attorñey" for the RepüDlic concedes, that the, pcsecution case, depends on the crediiclty of P.W 1, but ho submits that the trial court found P.W' I t',be a credilQ witness and accepte'i iis ,tostimc'n. ' .. It is of dcurse crrect, s submitt.il by Mr. Kwlkima, that this 'being a f1rt appeal this court is free to. evaluate'the eidence and arrive at its own conclusions. It is however also correct' In

Itw that an appellate cc.'urt w'uld nct' easily interfere with a trial court's finding on the credibility 'cf':a witness, since,'a5it has often been pointed out 'by this Court anl the Cc'utt 'of Appeal, a trial' court is in a bettor position to assess the credibility .f a witness than an appellate court, which has no orportuni'tS' to see 'the' wi'thes testfying. 'In the pres'ont cae however, it woul.l seom that. the tria1cour acceptance of P.W l's evidence was act basol on a specifIc finding on the credibility of P.W 1,rithssr .aei'ved,'froiit, the demeanour .r other aspects of that witness • The learned .trial Senior. Rçsi lent Magistrate hal this tosay'ahcut P0W 1: "The curt has also w'arne'i itself on this p'.:int that .t • Karan'cja the corplainant, Simon Mlokic, was alone. The ccurt Is satisfied that 'taking Into acc'..unt wha.t 'transpired t,, hIrn'fr in Old Mc'shi; KiUa t: this place, h was telling the truth in every way.. Th court has accepted the evidence that at.this place he was threatened of being killed ani since the accwecl' persons were Th' possession of . arms what took ploce was robbery with violence.." No where in his judgment, does the le,arne:l'.Sefljor M'agistrate state what led him to. be, satisfi l o"I that F0W I "was 'telling the truth in every way taking Into' account what transpired to him frn Old .w'shi; Kidia to this place." Obviously the story

narrate'I" br 1 P'.W' 1 is vry strange and cut of the ordinary course of humM recticn. It is very strange 'that 17 .W '1 1, who had his peUget inc tc'r' vehicle, lid 'r',"t g' tr, kepctt to the P lice Stati n about the rcbhery hut: inteaJ dhose ltc Irive back' home. The reasons he gave at the trial that he'was sc fightened by the'xperlence that he decided to leave matters in God's hands, . . . . ./3 -3- rings very hollow in the absence of evi'lence to suggest tht he had a nic;ue relationship with the Almightly God - different from that of other human beings - by which he hoped to move the Almighty God Ito to net holl/the accused persons. I find it also strange that P.W I had the courage to drive home but no cnuage to drive ohe Police Station. Furthermore, it is strange that the appellant did not immediately act on the advise of his relatives to reper •ker to Police Station. Under normal circumstances, since Pow 1 arrived back home at 7.30 p.m. and had his motor vehicle, he would not have waited until the follcwinc' day to make his report. But that is net the end of the strange story0 On his own evidence,. POW 1. was apparently not even in a hurry to report the following day. He first went to Kihoroloni to attend to his business, and it was only by sheer luck that he sighted a p licoman there and made his complaint t - him. Again it is strange that the accused persons who found

P.W 1. at home sh:uld be certain that P0W 1 hal mLney on his person and not in his hkuse,, There is no explanation how they could know that P.W 1 was mcving ar.:und with alct of money on his person an 7. that what they only needed was to entice him away from his home to another place. Finally, it is strange that the accused persons after robbing P.W 1. shculd leave P.W 1 with his motor vehicle and thereby prc:vide hiin with fast means he could use t:. report to the police, since there is no suggesti n that the accused persons already knew that P.W 1. wuld decide to leave matters in God's hands. I sympathize very much with Mr. Mwale's halfhczrtd, ttat to support the crnvictons, but since this Court, like the lower court, is a court a# lw and therefore a court of reason, I am unable to find a reason for the strange ev6nts disclosed by the evidence and I have no alternative but to conclude that there wore no such events. In other words, I agree with the submissions ma::ie by the tw learned Advocate who appeared in this appoal that the prosocution case was not proved beyond reasonable -1 ;ubt and the accused persons ought to have been acquitted. - The appeals are therefore now allowed by quashing the convictions setting asi Te the sentences imposed on the appellants with a direction that all the five appellants should be released from jail forthwith unless detained therein fr other lawful cause0 F.L. NYALALI,

J U D G E Judgment delivered this samay of 22nd December, 1976 in open court at Arusha in the pres •nce cf Mr. Kwikima, Advocate for 1st accused, Mr. Mirambo, Adv.cate for third accused and Mr. Mwale, State Attorney for the Republic. F.L. NYALALI,

J U D G E FLN/GKK