20081124 TZHC Mbeya

iN 1 liE I-UGH COURT OFLANLANIA AT MB[YA ( ORIGINAL JURISDICTION (M beya Registry) DC CRIMINAL APPEAL NO. 43 OF 2008 Original Criminal Case No. 44 of 2008 from Mbeya District Court at Mbyu PETER S/O DAIMON @ MWAMAKUGE... APPELLANT VERSUS THE REPUBLIC ... ... .. ... RESPONDENT JUDGMENT No. & 24' Nov. 2008 IVISLYA, J. The appellant person one Peter Daimon Mwamakuge was arraigned be fore the district Court of Mbeya at Mbeya on three counts. The first count was the oflènce of arnied mbherv contrary to section 287 of the Penal code as amended hv Act \ - i nl' 2004. the second and third count was unlawful possession of lirearnis euntrary to scctiun 4 (I) and section 34 of the Armed and Ammunition Act No. 2 of 1 991 read together with GIN. No. 66 of 2001, respectively. At the end of the trial the appellant was conk ictd and sentenced to thirty (30) years imprisonment for the first count and ii ye (5) years Iliprisonment lbr the second count and the third count rike () laws Ap6amnorin IL sentence is to run concLirrentiv. Aggrieved by both sentence and conviction the appellant piterred this appeal. In the hearing of the appeal the appel ant appeared in peson and the Respondent/Republic "as represented by Mr. Sekwao learned State Attrnev. At the trial in the District Court Our witnesses were called to give evidence, the appellant iave his defence on oath and had no witness to call. PW. I Joseph Da\'id and PW3 Naomi Joseph I)avid. who are a couple. gave evidence which did not differ in material facts. They both stated that, on the 5 " day of May 2008 were at Dandhoo Hall watching Miss Mbeya BeaLity Peagant. They hired a taxi at around 2.00 am and veni straight home from the Hal!. When they reached home PW. 1 Joseph David knocked the door while his wife 13 W.3 Naomi Joseph was standing by his side. They told the court that before the door was opened, 1 1'W.3 saw a torch light approaching them and iniorined Pw-1 who saw the same. Two people, one holdine the torch and the other one holding a local made short gun, approached them. the appellant pointing a nun at them. ordering them to ruse up their hands. PW. I and PW.3 obeyed the command. ftc> \\ crc n0d to hand over to the appellant and his colleague whatever they had Al their possession. PW. I took out cellular phone and lanzanian Shil mis ten thousand (1 0000'=) only. P \\ .3 had nothing, and because she did not have anything, to give, the appellant and his colleague slapped PW.3 and she fell down. PW. I was also ordered to lie dov'n. When they \\ere lying down, and the appellant pointing a gun at them, they heard the appellant's colleague telling the appellant that, they should leave as there was car light lighting them. I he appellants colleague left, leaving the appellant behind pointing a gun to P\\. 1 and \\ A. Suddenly P W. I stood and attacked the appellant by hitting him with a stone and the appellant fell clown. P03 was shouting and crying tbr help. Neighbours inc lucling PW.4 Hassan Fungo went to the scene and assisted PW. I who was fighting with the appellant. P W.4 Hussein FLingo said they managed to take the gun from the appellant and a cellLilar phone belonging to PW. I in possession of the appellant. I-Ic also told the court that he went to PW. I and PW.3 's house at around 2.00 am. responding to U Cr> ir help he heard from PW.3 who is his neighbour. He woke up his other neighbour cal led Dan and together wentmto PW. I and PW.3's house. PW.4 Hussein Fungo deposed that as they were approaching the PW. I and P03's house they saw tour people naniely PW. 1 PW.3, the appellant and the other one who ran away. They found PW. I 11ghting with the appellant who was lying down. They cal led police and PW2 I-. I I 4 I DL Leopard and his colleagues went to the scene and arrested the appellant. PW.2 F. 114 I DC Leopard informed the cotut that on the 5 clay of May 2008 at arotind 2.30 am. he was on patrol with other police officers. \Vhi Ic they were on pttrol they received a telephone call ironi central police cli recti ng them to H ln\\ up a commission of an offence at Oki Forest area near 1301 area. I Ic' said thcv \\cil [ to the scene as directed: found the appellant lying down and many other people surrounduig him. One of the people was holding a gun and they narrated the whole story to the police. The gun he said was local macIc short gUn which uses bullets. P W.2 tendered the gun and the bullets which were admitted as Exhibits P.1 and 112 respectively. PW.3 as well tendered the Cellular phone as Exhibit. The appellant objected to the production of the phone but his objection was overruled as being baseless. The phone was admitted as Exhibit 1 1 .3. At the close of the prosecution case the appellant gave his defence. He strongly denied the charge facing him. He testified that he was arrested on the 40 clay NJay 2007. at around 10.00 p.m. while he was in the middle of airport ground coming from his friend's house heading to his residence at Mama John. PW.2 and his colleagues arrested him and took him to Central Police Station At the police he as beaten and loved to make a statement according, to the wishes of the police. i-fe was searched but could not he found with anything. He also alleged that on the 5th may 2007 he was taken by the police to the counter where there were PW, 1 . PW.3 and PW.4 and PW.2 informed those people that he v as their robber. He was taken to his house by the 0CC-ID searched but was not found with anvthi nc. He denied to have been found with a gun. The appellant as well challenged the testimony of 13 03 as being false as she was the wife of PW. I. He also objecied the production of the cell phone. the objection 'which was overruled by the trial court. for the reasons that PW.3 tendered an exhibit which was in her possession. !!e as \.\e! I retutcd the evidence of PW.4 alleging that he was not in the scene of crime. here PW.4 alleges that he louncl him. He also denied to have been arrested at around 01 .00 BY He said he as arrested at around 10.00 p.m. at the Airport area. In convicting the appellant the trial Magistrat, referring to the case of W'AZIRI AMANI V. R. (1980) 1'LR. 252 and was satisfied that the appellant was p'operl identified by all the witnesses as the person who was at the scene who robbed P\\ . I And that in doing so he actual used force/violence in order to retain the Mobile Phone and the Tshs. I 0.000/=. She therefore convicted the appellant for the offence of armed robbery. 2i1 In relation to the and 3 " counts. the trial magistrate was as .'el I convinced by the eidence of Pw. I - PW.3 and PW.4 that the appellant was found in possession of the gun and the bullet. That PW. 1 and P03 insisted that they were invaded and robbed h' t\\ ü people. One of them had a gun in his hand and the appellant was identified as the person who had the gun, and as the person who used the same gun to threaten PW. I and P03. When they cried for he! p PW.4 went to the scene and proved to the court that the S appellant was lounci with the gun. So the appellant was as well convicted for the 2' and count. The appellant had three grounds of appeal. On the first ground the appellant is challenging the trial magistrate fur convicting him based on the evidence which was not proved against the appellant at the standard required by, law under section 288 of CPA. 1981 He said that according to the evidence on record, page 5 of the proceedings the bandit who escaped took Tshs. 10. 000 and he had gun and was arrested near PW. I 's house. The second ground of appeal is that the trial Resident magistrate ciTed in point of law and facts in admitting the mobile phone while it as in possessiofl of PW.3. He referred the Court to the case of ALLY BIN OMARY RASHII) V. R. CR. APP. NO. 132 - 653 - 166 and the case of.lustice Katiti in JOSEPH MAS IJNZL'V V. R. CR.l'. NO.3 OF 1991 and the case of kAMUNDI V. R. (1973) E.A. 530, 545. The third grounds do not differ in material with the second groLmdl relating to the Cell phone which was admitted despite his objection. In addition, at the date of hearing he contended that j LISIiCC was not done against him. That an identification parade was supposed to be conducted awl further that the witnesses saw the appellant at the police station and were told by the police that the appellant was their robber. In response Mr. Sekwao the learned State. Attorney for the Respondent/Republic subm i ned that it is not necessar\, for the exhibits to be kept where the appellant feels that it should be kept. The exhibits can be kept anywhere depending on its nature. I iike the gun and ihe bullet was supposed to be kept at the police. In relation to his arrest he insisted that the appellant was arrested at the scene01 crime and that he was adequately identified by the witnesses. I have gone throLigh the trial courts proceedings, judgment and considered the appellants grounds of appeal and his subvmission and the submission of the Respondent/Republic. According to law it is the duty of the prosecution to prove a use against the accused beyond all reasonable doubt. It is the duty of the defence, to bring evidence trom the prosecution stage by, cross-examination, to the defence stage, which shake the credibility of the prosecutions testimony. It is notjust enough to say that the prosecutioti has not proved the case beyond reasonable doubt. The appellant was supposed to give Ii * evidence pointing the weakness of the prosecution case at the irial. At the appeal as cl I the appe I ant was supposed to point the eaknesses of ihe prosec uli on evidence which the trial maeisirate relied upon to convici him. Starting with the appellants defence he just narrated the story on how he as arrested. When the prosecution witnesses testified he was given an opportu9nitv to cross examine the witnesses, he could not ask questions which would shaken the credibilit 01 the prosecution witnesses. So on the first ground that the trial magistrate erred in law and in fact in convicting him on the evidence which was not proved at the standard required by the law. this court has no reason to faulty the decision of the trial court. I totally agree with the trial Resident Magistrate in absence of the defence testimony which creates doubt to the prosecutions testimony that all the witnesses PW. I. I'W.2. PW.3 and PW.4 gave vcr clear and straight forward evidence. 'which was not contradictory relating to the three offences the appellant is charged with. The evidence given by PW. I and PW.3 on the manner the appellant and his colleague attacked themj the time they spent with the appellant that it was about 30 iii nules. that is half an hour the distance the appellant, was with PW. I and PW.3 that PW. I faught with the appellant. PW.3 saw him closely fighting PW. I his husband whell she was crying for help. PW.4 and PW.2 went to the scene found the appellant at• the scene. saw him ling down aml the tact that he was arrested at the scene and taken directly to police station. it is difficult For a reasonable man to believe the story that the appel ant was not the one arrested at the scene. The appellant cI id not even challenge PW.2. to show that he picked a different person from the person who. all the witnesses testi lied that he was arrested by the po1 ice at the scene. Also the fact that there was adequate light at the house entrance and neighbours who came to assist had torch-h g ut was enough to identify him. There fire I agree with the trial magistrate that the appellant was adeq uatel identified as the person who in\'aded PW. I and PW.2. robbed PW. I his Cellular phone as it was found in his possession, that in the prosses he used actual force by pointing a gun to PW. I and PW.3 and that he could not produce a permit or licence to prove that he was in lawful possession of the gun and the bullets. ,1 4 ( As such the appeal has no merit. The sentence imposed aainst the accused is undisturbed. The appeal is hereby dismissed. It is so yrdered. TH' i\'Isuya. U DG F 24/11/08 Date: 24.11.08 Coram : H. U. Msuya. .1 Appellant: Present. For the RepLiblic: Miss Floi•a - State Attorney. C/C: Mrs. Flora Mponzi. Order: The judgment is delivered on the 24th day of November 2008 in the presence of the appellant and the learnjjte Attorney Ms. Flora for the Respondent/Republic. .. Fi ( 'It () J U1 D G EE 24.11.08 6