20150724 TZHC Arusha

{~ '',' I I I I \ \ \. IN THE HIGH COURT OF l\ANZA.N:i:A AT ARUSHA CRIMINAL APPEAL NO. 9 OF 2015 (Originating from Babati District Court, Criminal Case No. 91/2013) I i I . SILANJA GIDAWIDA CHAWISHI. .................................. I APPELLANT ' Ver~us THE REPUBLIC .............................. !.............................. RESPONDENT I Date of last Order: 20/07/2014 Date ofJudgment: 24/07/2015 JUDGMENT I The Appellant, SILANJA GIDAWIDA CHAWISHI was charged and I convicted by Manyara District Court of the offence of unlawful possession of ammunitions c/s 4 (1) and 34 (2) df the Arms and Animations Act, Cap. I 223 R. E 2002 as amended by ~ection 46 of the Written Laws (Miscellaneous Amendment) No. 3 Act~ 2010 and was sentenced to five (5) years imprisonment. Being aggrieved by the decision of the District Court, he is now appealing before this court basing on three (3) grounds; ' I 1. That, the trial court erred in law and in fact when it failed miserably to evaluate the evidence adduced by the prosecution witnesses and I hence it arrived on an erroneous decision. 2. That, the prosecution case was not proved beyond reasonable doubt as there were a lot of inconsistencies between PW.1 and PW.3 which I 1 ! I ' the trial court ought to have scrutinized and analyzed such inconsistencies. I 3. That, the conviction and sentence of the Appellant was illegal and untenable at law for failure to cite the provision of the law in the judgment on which the Appellant was convicted and sentenced five (5) years imprisonment. At the hearing of this appeal, the Appellant appeared in person and unrepresented while Republic was represented by Ms. Violate David, learned State Attorney. Briefly facts of this case are as follows; On 28/4/2013 PW4 who is Inspector Police at Babati, was informed that there is a house in Migungani area where there is person possessing ammunition and weapon. Being accompc;3nied with her fellow policemen (PW1 and PW2), they passed by to fetch PW3 (a chairman of Migungani hamlet) and led to the house of one SALIMU MOHAMED. When they reached there, the wife of SALIM MOHAMED opened the door and in the house they found several people including the Appellant. After identifying themselves they were led to I rooms in order to conduct search. In one of the rooms, in which the ' Appellant and his colleague were found, they recovered three bullets (ammunitions), Appellant's driving license, motorcycle keys and Tshs. 660,000 wrapped in a shirt which was found under the bed. The Appellant admitted the shirt and money to ,be his but never stated whose ammunition were those. Police then signed a search warrant and the Appellant was arrested on suspicious of unlawful possessions of ammunition and was charged before the trial court. 2 Before the trial court, the prosecution called four witnesses and tendered the sketch map of the scene of crime, one shirt, search warrant, Tshs 660,000 and 3 ammunitions which were admitted in evidence. The Appellant defended himself where he disowned the three (3) ammunitions which were recovered after search, that they never belonged to him. But finally he was convicted. During the hearing of this appeal, the Appellant opted to adopt his grounds of appeal without adding any elaboration. On the other side, Ms. Violate learned State Attorney opposed the appeal on the following reasons. She stated that the proceedings and the judgment of the trial court show that the evidence was correctly evaluated as demonstrated in page 1 to 3 of the judgment hence the accused was ' properly convicted. He further prayed the sentence be enhanced to fifteen (15) years of imprisonment in accordance to the law. In rejoinder the Appellant stated that PW1 and PW2 differed in their testimony as PW1 said that they found him with 3 bullets and ignition keys of the Motorcycle while PW2 said that he was found with 3 ammunitions, ignition keys of Motorcycle, driving license and a knife. He further stated that PW1 and PW2 said that he was found with cash Tshs. 660,000 while PW3 said it was Tshs. 630,000. He also stated that PW2 and PW3 failed to state whether they found him with the said ammunition or if they were armed when they were conducting search. He added that PW1 and PW3 didn't identify whether the ammunition recovered during search are the one tendered in court. He therefore contended that the prosecution 3. .., . evidence was inconsistence and the inconsistence went to the root of the case. Thus, he prayed this court to allow his appeal. Having gone through the submissions above together with the records of the trial court, I will now proceed with the determination of this appeal. I prefer to deal with the first and the second ground of appeal jointly as the same boils on one issue; whether the prosecution case was proved beyond reasonable doubt. The Appellant in his submission complains that there was inconsistence between the evidence of pwl, PW2 and PW3. But this court having gone through the proceedings of the trial court is satisfied the prosecution evidence was consistent and reliable. There was a minor difference in the evidence of PW3 on the amount of mount recovered during the search when he stated that the amount of money was 630,000 while other prosecution witnesses stated that it was 660,000 but this court finds that the said discrepancy does not go to the root of the case provided that the search warrant indicates that the amount of money recovered during the search is Tshs. 660,000/=. The same applies in the evidence of PW1 who did not mention a knife to be among . the things which were recovered during the search. In regard to the Appellant's complain that the PW1 and PW3 did not identify the 3 ammunitions which were tendered before the court to be the ones which were found in his home, the proceedings of the trial tribunal show that PW1, PW3 and PW4 testified before the trial court that it was 3 ammunitions which were recovered which are of "458 carrible". Also the search warrant indicates that it was 3 ammunitions make "carrible 458". Also PW3 when tendering the said ammunitions in court he identified that 4 • I the ammunitions tendered are 3 make "458 carrible". The said 3 I ammunitions were found under the bed 1n I the room which the Appellant and his colleague were found. The ammunitions were wrapped in the I Appellant's shirt together with Tshs. 660,000, the Appellant's driving license and Motorcycle ignition keys which Appellant admitted that they I belong to him except the 3 ammunitions.~ As found by the trial Magistrate, I that circumstances makes the court conclude that it was the Appellant who i wrapped the said ammunitions with his shirt and kept under the bed. j In regard to the third ground o~ appeal that the conviction and I sentence was illegal and unattainable. at law for failure to cite the provisions of the law in the judgment on ;which the Appellant was convicted and sentence; this court right away finds that this ground lack merits as I the judgment of the trial court at page 5 pronounced that the accused was I convicted as charged. Page 1 of the sajd judgment show the provision of ' the law under which the Appellant was charged that is section 4 (1) and 34 I (2) of the Arms and Animations Act, Cap. 223 R.E 2002 as amended. I Basing on that, I therefore find that the trial Magistrate properly find I that the prosecution case was proved beyond reasonable doubt and hereby I sustain the conviction and sentence by the trial court. j Order accordingly. I I I I F.H. MASSENGI ' JUDGE 24/07/2015 I j I SI I I I I, I Judgment delivered in Court this 24th day of July, 2015 in the presence .... ;f.f·~·~Y.0.1. Q~.~...!':,~..I.\.~.(~ ........... ..........~ ! 9 . ~................................................ .. F.H. MASSENGI JUDGE 24/07/2015 6