buchingera mangalaine vs republic 2013 tzhc 2050 29 july 2013

IN THE HIGH COURT OF TANZANIA AT ABORA APPELLATE JURISDICTION (Tabora Registry) (DC) CRIMINAL APPEAL NO. 51 OF 2012 ORIGINAL CRIMINAL CASE NO. 51 OF 2012 ORIGINAL CRIMINAL CASE NO. 11 OF 2010 ON THE DISTRICT COURT OF KIBONDO DISTRICT AT KIBONDO BEFORE E. R. MARLEY - RESIDENT MAGISTRATE RASHIDI S/O CHARLES @ BUCHINGERA MANGALAINE .......... APPELLANT VERSUS REPUBLIC ............................................... RESPONDENT 2nd J u ly , 2013 - 29th J u ly . 2013 JUDGMENT HON. S. B. LUKELELWA, J. The appellant Rashid Charles Buchengera was on 24th May 2012 Convicted by Kibondo D istrict Court in Kigoma Region on a charge of two Counts namely:- 1st Count: Unlawful possession of Fire Arms Contrary to section 4 (1) and 2 of the Arm and Ammunition Act [CAP. 223 RE. 2002] read together with l paragraph 19 of the F irst Schedule to and section 57 (1) and 60 (2) of the Economic and organized Crime Control Act [CAP. 200 RE 2002]. Second Count: Unlawful Possession of Ammunition Contrary to section 4 (1) and 34 (1) and 2 of the Arms and Ammunition Act [CAP. 223 RE. 2002] read together with paragraph 19 of the F irst Schedule to and section 57 (1) and 60 (2) of the Economic and Organized Crime control Act [CAP 200 RE. 2002]. Evidence was led at the trial to the effect th a t PW1 Bakar s/o Maulidi a businessm an at Mabamba village on 21/12/2004 dealing in local brews was doing the business of selling local brew. PW1 testified th a t at around 23.30 hours, the appellant and three others including a woman turned up at his place. The appellant ordered local brew and served the brew to other people. Thirty minutes after the appellant closed the door and two of his fellows went outside while the appellant and his wife rem ained inside. The appellant took a pistol from his pockets and forced PW1 to give him money. PW1 testified th a t he jum ped over the appellant and grabbed him while Jan u ary Kagoma and Jasp er assisted him to take the pistol from the appellant. PW1 w ent on to state th at the appellant m anaged to remove the magazine from the pistol and ran away PW1 went to report the incident to the police and surrendered the pistol at the Police. He told the police th a t the i pistol belonged to Mangalaine which was the appellant acronym. He accompanied the policemen to the house of the appellant who refused to come out and policemen had to fire bullets in the air they searched the house and found the magazine with five rounds of ammunitions. PW2 E.7844 Detective Corporal Abdulbastwa told the Court th a t on 22/12/2004 at around 02.15 hours he was on duty at Mambamba town police post when three people came Complaining, the people were one Maulidi, Jan u ary and Abel Gasper both residents of Mabamba village, having a pistol with No. 005609 Chinese pistol which had no magazine saying the had been ambushed by the appellant who had left with a magazine of the pistol. PW2 testified th a t they went to the home the appellant where they found the magazine with five rounds of ammunition. They took the appellant to Mabamba police post. PW3 E.9924 D/C Praygod told the trial court th a t he accompanied PW2 Abdulbastwa at the house of the accused where they found the appellant having a parcel of clothes trying to escape, and they had to fire in the air before searching his house where they found a magazine and five rounds of am munitions, then they took the appellant to the police post. Both PW3 said th at the appellant was naked when they found him at his home. 3 PW4 Abed Gasper confirmed the evidence of PW1 th at he had helped the latter to retrieve a pistol from the appellant who managed to run away with a magazine leaving behind the pistol. PW5 C.8296 Corporal Besnon added th at after finding the magazine at the home, of the appellant, they arrested him together with his wife Jasinta, and took them to Kibondo police post. The appellant told the Court th a t on 15/12/2004 he went to a pharmacy to but medicines when he met Abdulbastwa who stopped him and asked him why he was riding a bicycle at the m arket area, and ordered him to go to the police post. He told him th a t he was sick but the policeman .took his bicycle and ordered to go to the police post on the following day. The appellant tendered a copy of charge sheet which was adm itted in Court as exhibits D-01 and D-0 2. He also tendered a copy of Nolle Prosequi. He denied having been a t he bar and had never owned a gun. In convicting the appellant the learned trial Resident M agistrate held th a t the pistol Chinese made No. 005609 had earlier been tendered in Court as exhibit, before the High Court 4 ordered the case to be tried de novo. Since the appellant was found with a magazine with five rounds ammunitions which matched the pistol taken to the police the prosecution case was proved beyond reasonable doubt. In sentencing the appellant the learned trial Resident Considered the prosecution calling for a severe sentence as unlawful possession of weapons was on the increase and the appellant m itigation th a t he had been in jail since year 2004, and was suffering from TB and HIV. Aids. I have considered the evidence at the trial which in my view was overwhelming against the appellant. It is true no pistol, and the magazine was tendered in court but there was an explanation th a t the same had been tendered in court in the previous case Crim inal Case num ber 247 of 2004. That on 14th December, 2005, he had been sentenced to fifteen years im prisonment for the offence of possession of firearms and bullets. I therefore find the appeal against conviction devoid of any merit and is therefore dismissed. 5 Coming to the appeal against conviction devoid of any merit and is therefore dismissed. Coming to the sentence imposed on the appellant the sentence of Seven years Imprisonment was not excessive as to inquire intervention of this court. However since the two counts were omitted in the same transaction, it was wrong to order th a t the sentences ru n consecutively. That order is hereby set aside, an order th a t he seven year imprisonment term on each count, are to run concurrently. Since the appellant had been sentenced on 14th December 2005 and has been in prison ever since, I hereby order th a t he Seven years im prisonm ent term begin to ru n from 14th December 2005. This m eans th a t the appellant should have completed serving the sentence by 13th December 2012. 6 I therefore order th at the appellant be released from prison unless held therein on other lawful charges. Order accordingly. 0 V' ' S. B. LUK) JUDGE. 29th Ju ly, 202013 7 Date: 29/07/2013 Coram: Hon. S. B. Lukelelwa, J. Appellant: Present Respondent: Represented by Mr. Nestory Paschal S tate Attorney who is present B/c: Mary Mpululu Mr. Nestory Paschal, the appeal is coming for judgm ent. S. B. LUKELELWA, JUDGE. 29th Ju ly, 202013 Order: Judgm ent delivered in Court this 29th July 2013. Right of Appeal explained. JUDGE. 29th Ju ly, 202013 8