Tumbaa Lolemtu vs Republic (RM Criminal Appeal No. 17 of 1998) [2000] TZHC 243 (29 May 2000)

I co INTH • . IN THE HIGh COURT OF .T RUSH • . . EXTENDED •PPELLTE JUTSDICTION • ?M GPO PPEiL N00 17/98 c/F HIGH COURT CRThIN'L. 'JP. NO0 27 OF 1998 TUFiB' LOLEMTUO 0 0 ........... 0 •iTuL NT versus THE REPUBLIC OOfl0000O00O0OOflO Q RESPONDENT, JUDGMENT C0 Nyerere,PRM with Ext 0 Jurisdiction This is rusha High Court Criminal ppea1 N. 0 27/98 which has been, assigned to PRN with Extended jurisdiction. as Etended .ppellate Jurisdiction RN •Jriminal .ppea1I\To0 17/98 filed by TUNBY. LOLENTU and Hi.gtr CDurt criminal cppeal no028/98 Filed by NB'.TI'Ni YM'TI both have beei consolidated for the purpose of this jument, because they emanate from one judgment of N( 1 NDUI T)ISTRICT COURT. CRININ Case No0112/1993,. In this judement therefore, the appellant TLTMB LOLTU shall be individually referred • as the 1st appellant; whereas the appei1.nt MBTIJ'TI Y.'MLTI shall be referred to as the 2nd. '11an:0 Both appellants were convicted by Diatrict Court of • Nonduli for the offence ROBFVRY /s 265 and 286 of the Penal Code, cap016 and in the 2nd cr.ant they were • charged with .TJT.L TJ?•TJL 3SESSIOJ OF FIPE •.. T'5 ND MMUNTTION C/S 13(1) 'ND 31 (1) (2) O'' THE NS ND 1 NIY'ION ORD]JNCE N0022, S ,MEND.T.D BY 'CT:No.13 OF 1984 3rd CffDULEO It is woriby to mentionthat, at the tiaring the public Prosecutor substituted another charge sheet .which had 4 cin and four accused '- ersons, NUTLY TUMBI LOLEMTU the 1st appellant 9 NBiTIJT Y FTI the 2nd •ppel1ant, LENGER who was ac.qui ted ond. Icis IGu LiNcIsEPI wh.'was also aci.ted 0 In the new charge sheet 1st cQunt to 3rd count conéerted 1st and 2nd appellants and 3rd accused person by the neme of TIMPY LGER while 4th count concerned. 4th accused person. by the name of KISYONGO T.NGISEPLI.0 .. 21—

In my present Judgment I will deal with the two appellants because the rest of the accused person's 3rd & 4th were acquitthd. and there's no dispute about their acquital because even, the State &ttorney did not mention. anything about them and a perusal in the whole evidence in. court is not water tight against theme The 1st appellant and so was the 2nd appellant were charged with three counts Of (1) TJnlawu1 possession, of fire krm c/s 13(1>" of the 'EMS andJVfi\TTIPJON O-drnce Ca 223 reed toether wIth Path 21 of the l.st chedu1e to the Economic lot No013 of 1984 as amended by Pçt NoI..of':1989. and Section 59(2) of the said :Ct 1984 The appellants were charged jointly and together that -on 31st December, 1993 at Nalalami village within Nonduli District Nrusha egipn. were found in possesiOn of , one gun -. t make ST 'Serial No01171106 without Government permit In. the Second count the two appaL ants were charged and convicted of the offence of Uilawful p6ssession of irnmunition c/s 13(1) of the Arms and'lmrnunition Od.ince cap0223 as amended by Ict NolO of, 1989 reed together with para 21 of the 1st Schedule to the Economic Ict noL of 198!. That on 31st Decenaber, 1993 at Nalalami village w:'thin Nonduli District, rusha 'egion the two appellants were fou:.d in unlawfull possession of three rounds of ammunition L' a un make 5MG without authority0 In. the 3rd count arid, last the two appei..lants were charged convicted of the offence ofMED Q]lRFgy 0/5 E85 and 286 of the penal code cap.16 volum:1 of the laws as amendc-d by Tct no010 of 1989 That on 25th December, 1993 at Lokisa'Le Village within Mond.uli District, Irusha PLeipn the two appellants stole two .IdiO cassetts valued at "ss06O,OOO/- two packets of biscuits 'vlued at shs5,000/- two packets of seets vaLued at • shs0400/- tw handbags valued, at shs040000/- one purse 'valued at ].5OO/ to bottles of sdft'drinks ' namely sprite valued t shs0200/- thirteen, soaps valued, at shs02,600/- twenty spro tablets valued at shs0200/- three skirts valued, at hs5,OOO/ and one blause .v2,lued at shs08,000/-

. .. ' all properties valued at ehe026,lflfl r:ries of one FILl KISiIiG: and immediately before or after s.c.h stealing did use fire arms to wit did fire three bullets im srder to retain or obtain the said prorerties of the said PILl KISX'JGO Both appellants pleaded not guilty to the charge and were convicted, in all the three counts and sentenced to 15 years imprisonment in 1st count and 15 years imprisonment in 2nd count and last count were sentenced to 3 0 years imprisonment the sentence to run concurrently0 So they are appealing against both conviction and sentence0 Briefly in their lengthy grounds of'.npeal about or more than 15 paragraphs the appellants in trinctple submits that the trial Magistrate erred in law arid fact in reaching to such a decision because the prosecution .cao was not proved beyond reasonable doubt0 They further submited that they were not found with them, when they were arrested0 ather the stolen. properties were found with one IKIJR.tMBP who was not arrested or charged. The That kppell.ant in paragraph (n-) of his Petition of i.ppeal contended that some of the stclen properties were found with KIYONGO IJSNGESEIU the fourth accused person who was acquitted.0 In addition to this the aprellant further mentioned another person by the name cf IJIPONGOI who is reported to have been found with a sack whi oh conuained. items similar to the one found in he sack with Ith accused person0 But to his surprise the said KIPONGOI had never been summoned nor was his testimonies taken0 The rest g:nunds are similar to the ones mentioned in one way o another so I will deal with them jointly0 Mrs. Ntilatwa State ttorney for the spnodent filed a written submission replying the grounds of etpeal filed by ppe11ant;s one of her argument was that, a1toouh the appellants are complain.ina of being convicted and sene ced though they were not found with the stolen properties neither did they participated i the alleged, tRMNDROBBTfIY nor were they fond with or in possession. of .XMMTJI\TITION, she strongly submitted that the prosecution evidence was touched water tight evidence to borrow her words0 She submitted that, from the evidence on record, it has been proved that during their arrest they mad.e some confessions as per exhibits which were teride:ed in court. .00qo*4/

Lj md the said. evidence was well co :oboJ.a:L in court by P13 the Chairman of Nalalani Uvawani vj.lag wuu acconvanied. PN2 the arresting and. inves tins officer t ... 3ush when 1st appellant volunteered to• sho him where the said GUN was hidden later on the appellants further took FW2 end PN3 to various places where they were able to recover others parts like 2eceiver cover, and Feturn Spring Mechanism Tutch were found into the roof of the grass housee Mrs0 TiILTN'. further. submitted ihat.2nd ippellant when interrogated he admitted that that belongs to i. nd 1st ippeilant was the one firing in the air while 2nd ippella.nt and other accused persons were stealing orw&rather 1ooting. Tegardins the sentence Mrs0 I'TtiJatwa learned State ttor.ne• submitted that the sentence passed is quite within the provisions of the Lh'J OF MINIMUM 2 TUNOE lOT N001 of 1972.. md so as the sentence are to b served concureritly and not consenutively then it is her. aipcere piayer that the appeal be dismissed for being non—meritious to her this is a distrubance tr this court of law0 The appellants right from the beginng never wished to appear0 So this court only went thoroueiily on their grounds of appeal, the proceedings and judgment thereon and concluded with Mrs0 Ntjltwa is written submi..suicr nd I framed only two issues in order to determine this yai 1st issue is whether the off ences in four counts were proved beyond reasonable doubt as required b'; utandard of proof? 2nd issue is wee thsce enou.h eviden to orove corroboration. because the r;ri on ol t-2 need -to be prove. b: ?iT3- and ±-e14 who were crucial witnesses in ohe whowe ceat 4 It is crystal clear that FJl was burgled i the night of 23.121993 Cr evidence the 1st .inpellantt;. ok P12 to the pace where the GUIT, 2MG with serial n.o0ll71036 was hidden ad again took or led him to a grass house whore on the top pits roof they found receiver cover and ret:rningmechanism . IN Q 9 5/ 1

This piece of evidence was well asÜL1 : •.; hrateJ by the evidence of P14 who statea in cc)uLr. tis appellant is his relative and the stolen prorerties in the oac.k belona t.o him and they were onl3 asked for safe keep•ine and it never crossed 11±5 mind that what is inside that sack is stolen properties. .nd when his father asked aim to take the sack to police station he did it immediately without any hesitation0 The appeallants have not edequately Lppellants who never wished to. be present. LTyerere PRN WIJ JXTO JUPICBICTION 29/5,/2000 0R.DER— Typed jud,ment to be supplied, to :p7-) e1lants. •C : ITrere P R YI JIJ.T0 JURISDICTION 29/5/ 2 000 I hereby certify this to be a true copy of original DISTRICT RSGISTR.'R '0 /