Ally S/O Hamisi vs Republic (Criminal Appeal No 21 of 1998) [1999] TZHC 206 (19 May 1999)

I / / ,' IN TH.E HIGH COURT OF T;i.NZil.IHA Nr ARUSlU CRININJ.L· .' .. 2Pii::.L NO 2·1 -F 1998 . . : t .. - : .• J.· • .. · ' • • (From the decision of the district court of Babati ' ·... . , • . ;-1'1!" ;C ! •.: : ' . • . ~ . •', ,, at Babati in.Criminai Case.No 427 of 1996) .tLLY s)o' w:r,nsI o O O O O O O •• 0 0 0 0 0 0 0 0 0 .APPELL.ANT ~ . . VRS REPUBLIC •••••••••• -.· •••••••••••• RESPONDENT . .. ·---•,-:-,t-;M,,..,....,._ , _______ ..... ,...,.,...... ..... .,,.,,...... ....... ...,.._ ...+..-r-~~.-.'"" .: . --q D G ~~. }i ...l! . ..! Criminal appeal ro. 21 of 1998 filed by Ally d.amisi-and Criminal No 22 of 1998 filed by Mohamedi Shabani have been consolidated for the purpt>se of this Judgement. This is becaμse they emanate· from one Judgement of the District court of Babati r. i· \· - in Criminal case No 427 of 1996 of that court. In this Jl..\dgement . . ·. . . 1 ' . here fore, L1e a15:t)ellant · i:..liy rklmisi shall be 11di yidually referred' to·• as the 1st appellant, wliereas the appellant Mohamed . . Sha bani shall be" referred to as· th,e 2nd .l:1.ppellant ., In the Jbove cited 'criminal ca-se before the Baba ti District I ' • • -,,o - •• t r curt; the 'tvio ··ppeil8.Dts toge.ther with three (3) others were being cha.rged ivi th the offcn6e of ared· :cobbery _c(s 285 and 286 : ' of the Penal Coc'.e. It was alleg·ed by the prosecution that the ... ·:. . . ,• J. - .. : . . ·.:'_1· . five (5) accused persons • 1 on or about 6th 3epteme:r:, 1996 atabput , · 0_1.00hrso at h:ion~ 1 ozi Village in Baba ti District sto~,e 2 rad;Lo- cassettesth.e .propc"i'ty of one Hi.;,stapha.s/o Jumnne .and).mmediatel:Y. / ,, ,'•, ' \ . . . . ' bfor<"e such theft ou.to Mustafo s/o.Jumanne with a pahga on the : .· ' h0t.id :cd :'.rr: in order to steal or retain those radio cassettesei All the accused persons ·did· deny· the charge_o .".i.fter a -full tria_l .the. trial court was satisfied that the prose= cution had 1 · not only p:Z:-oved that" the robbery wo,p. corru,ni t_ted bu.t fart . her that it 1 ,vere th;, appella.ts· who had committed it o It accordingly found both of them guilty as charged and cont_ste::d themo It however ac·qui tted the other threeo 'rhe appeilants were then e2.ch sentenced' to. serve a prison term of 30years and ordered to pay 'l'shs. 160,000/= the value of the stolrt._ radio .. casse.ttes to the complainf.mt Mustaf,:: s/ o ·-. . . . ·•' .. Jumanne. 0000002/- \

The appellants were aggrieved by the conviction and sentence and hence these two consoldated appeals against' both.

• ·, ;1' The two appellants are still pr.otesting their innocence in thise appeals. The 1st appellant in his petition of appeal, is contending that his conviction was based on an. alleged' confesion to the crime, which confession was extracted from him by force ( a'fter being beaten by P\v4 No. D 1356 .iJ/Cpl Abbas. He is farther alleging that the complainant (PWI Mustafa) had be_en nursing a grudge against him because, being his neighbour, he once borrowed Tshs. 6,000/= from him After scanning the entire evidence on record whose correctness is not impugned in this appeal, I have found the latter ground of complaint to be patntly lacking in merit. This is because he has just raised it in this appeal. If this was the case, he could have so told the trial court at the very first opportunity either whe'n he was cross - examining PWI or in his defence._ So this is a mere fabrication. He is only truying to be wise after the' eve_nt. In his equally narrowly focused grounds of appeal the 2nd appellant is complaining that :the soundness of his conviction is vitiated by"-. the fact that he never confessed to the robbery to PW4 as alleged and by the existing conflict between him and PW4 because PW4 wanted his (appellants) fiancee. I have found no substance in this latter complaint becap,se henever brought out the existence of this animosity either when he· was cross-examining PW4 or in his evidence in d~fence. That the 2nd Appellant is a liar is demonstrated by this reply to a · .. ;.,:.L question put to him by the public prosecutor on cross examiriation:· 11 I am in good terms with D/Cpl Abbas" He is too late to be heard now alleging that there is bad blood between him and PW4 Abbas. He is ,;herefore lying in a bid to save his neck Nobody should buy these naked .. lies. In finding the two appellants guilty as charged the learned trial Principal District Magistrate, after finding both PWI and P\114 to be witnesses of truth had this to say:- • o • o o • o a •' o o o 3/-

3 11 From the evidence laid before m~,.- there cannot be slightest doubt? Ga) that ··somet-;; ,broke,.. {to the . . . . ;·• .!.:,,,, .. dwelling house of the complainant, ,c/-,:t;id stole tli-10 radio . . . . . r cassettes sets, 'the property of, the compl;ihant thre..:. from. on or about '06/09/96 at about 01_.00Jl.m. ahd (b) that before such stealing thosa two radios cassettes sets one of those thugs cut complainant on the. head with a_pahga and caused ,-1::i...5Cm long x ·12 Cm deep cut wound,1H ~ . ., ~ ' . On who committed the robbery, wounding·PWI.with a panga in the ' . . . process, the learned trial Magistrate aftpr holding that the two appellants freely confessed to the robbery answred this question to the effect that .it were the appell:ants~ Was the holding of the trial ;cou:.h on the identity of the armed robbers impeccable'.?. .1 defin:i.hve positive answer to_ this question is provided by the evidence of PWI ·and PW4_read together with that of the two appellants. l?WI told the trial court tl1at oh the·mnterial date before . "!"1 retiring; he ina:de · sure h~· had 'losed the doprs of his house. :1t about 01.00hrs he was awakened b;;r ·a b@ng at ,the rear door of his ,, . r , house. Thei1 · someone directed a torch light on his facd Immediately he ,;as cut with a panga on his a.rm. PWI then raise.ct. art ' . .. . alarm but was cautioned not to do so and he heed0c.. Another p·er_son then enter.ed the ·room where in he had been sl_eoping and picked .up . •. two. radio cassettes which were ±n the room and mnde away wtri' :;_.-:,· thenio The one who had a toTCl'. demanded to be given m_oliey 1i" ·,. ,. When P11JI told him that he had rione he wa.s . struc_k again with a pangao At that stage PJI sornmoned up coura5e; got up and jumped out of the . room through a window, Once outside he started to raise 3alarm once moreo The robbers took to their heeQs as his neighbours begap ,.:,.:· .. to arrive at his house in response to his alarms, unsuccessfully p.ursued the robbers. PwI the_n went to repo:tt the robbery at the nearby police station a,nd was later tr·eate'd. at their 11 local hospi_tali 9 for the injuries he had sustained:. Hr/I was candid enough to tell the trial court that he _was·not,lucky enough to .either recognize or identify any:.,of tb;e;:-r:,0bbers. Hqw_eyer P\tlI werit farther to tell the trial court that one day the 1st appellant told him that they were 11 his assaillants 11 when they met at the local sisal estate • He then informeJthe Police accordingly. • •••• 4/- ,,. .. .. ~ r '/'j·

··-· 4 -· It is meet to point out here with finality that the five accus'2c 1 persons in the. c,?.se never impugned the ,,, ·idence of PWI on the question of tho commission of the robbery at his homeo All but the 1st Appellant never cross-examined him at all. Eve1f th~ very few questions put to him by the 1st appeallant were never directed to shake his credibility on th~ idsue of the robbery. · I accordingly concur 1•1ith. the finding of the learned trial Principal District magistrate that a ·robbery was committed on PWl at his home in the early hou,rs of 6/9/1996, and that the robbers were armed with a panga. The solution to the issue of }he identity of the robbers was found thiefly in the evidence .of P.:14. · According to Pl'v4 follo- wing the arrest of the five ac.cused persons, he did interrogate them, PvJ4 told the trial court that three of them denied any involvement in the robbery in the home of Pv/I, except the two appellants who volunturiiy confessed to :have committed the robbery in each one's cautioned statement~ There two statements each amounting to a comfession to.committing the robbery were tendered in evidence as Exho B collcctiv_ely. These written co'nfessions were not tendered in evidenceL, surreptftiously by the prosecution. The prosecutor 7 through PvJ4 made a proper foundation fot their in+"'.'-·' :::tion :'.:'.:...ct staLe1i1<-,,t; ,..,a 9 read out to· tb.e nc.::used persons in Of~n court. They were then ·tendered in evidence. Each accused person told the trial c::rnn; that he had no objection to their being introduced and tendered as evidence on the side of the prosecution •. These statements were accordingly properly admitted in evidence. The 2nd· appellant had only ;me question to PW4 on cross examination.,_ The answer to this question indicates that it was meant to show that.the appellant was in prison on the day of the robbery and not . to repudiate or retract the alleged confession. For his part the 1st appeallant had tw.o questions to PW4 who answers were. 11 You admitted doing the offence. Your were a free maniv In his very brief evidence the,. lst appeallant told the trial court that on 6/9/96 he was ~t Babati township to mill maize grain which he failed to do due .to luck of electric power.

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• 5 - He then proceeded to Kusare pombe shop where· he was arrested and accused of threatening one Abdalla Jumno He was sent to a police station and kept in custodyo Then on 11/2/97 he was interrogated by R-14 who phsical!Y assaulted him (ie beal him up) because he told PvJ4 that he did not-know his co-accused. Because of the beating he ad.mitted knowing them and PW4-recorded that. While answering the-questions of the public prosecutor on cross-_ eexamination, the 1st app~=ilant t"oid-· the trial cuurt that he simpJ'.y forgot t:: put the issue cf his being ·,beaten by PW4 t-;:; the witness when cross-ear.-1iniJ.1s hio. This cheap explanati::m was net bought by the gu.:d trial magistrate in his well reasoned jμdgement. He was perfectly entitl_ed.-·:to reject that fabricffci()n. The same appellant •.'·· told the trial cvurt while under cross examination that he is in good terms with;-P\y4. It is :gc,od' to point out here that even if we accept that. the 1st appellant was at Babati township on· 6/9/96 for whatever reason, this could net defeat the fact that he might have been ,:-ne cf the robbers because the robbery was committed on 6/9/96 at 01.00hrs. In hie: ·:,lari1-::::ly sh,)rt evedence the 2nd appellant told the trial court that 01i 14/9/96 he was at Mto wa Mbu and returned to Bahati on 20/9/96 only to_be told his mother that the police were after him. 'l'he following-day he surrended h~mself at the police station whe.:-e PW4 questioned him regarding 11 a highway- robbery". According to him he 11 der::.ied involvemen'-:' 1 and P.:J4 recorded his statement. ·The only points of signi;ficance in to be deduced from his defence is that he did•ctt_specifically deny committing the robbery at PWI 1 s home on 6/9/96 or making a cautioned statement to PW4 in which he is shown to be co11f0ssing to the robbers. Whether or not the 2nd appellant was at Mto wa_Mbu on 14/9/96 is not relevant at all here as the robbery was committed on 6/9/96 and he does not tell us where he was on that nighto .J' While being cross - examined by the public prosecutor this appellant told the trial court that he never gave the c-au·tioned state- ment (Exh B) to PW4. Asked why he never cross- examined P:J4 with whom he ndmmitted to be in good terms, he re that he 11 forgot to do so. This was rejected by the trial magistrate and in L;.y·, view quite ·.ri,];htly soo •• 0. 6/-

6 Before convicting the ap1-1ellants the good trial magistrate considered at length the value of their retraste._-. and/or repudiated confessionso He properly directed himself on the need treat such confessions with great caution before actin&; on them to found a convictiono He was guided by the cases of ALLI SALEHE MSU'rU VR l1.9.-22.- TLC,,;_njb!,'40I V. Tl.~~LJ.:1967) EA 8o on the issue. After correctly findiny P,J4 to ha.ve told the truth in his entire evidence he concluded his inquiry on the issue as follows:- 11 In this case there was .,. ,_10 evidence to corroborate the two confessions. No, can I act on the repudiated and uncorroborated confessions to convict both accused? Having considered all the material p0¥!-ts and the circumstances surrounding this case I am of the decisive view that I can. 1 But why'.? I am fully satisfied that both confessions are nothing but the trutho 11 fully endorse this cortclusion. Had that not b'een the case they either could not have let PW4 tender them in evidence without any objection or they could have crucified him on cross-examination. That they did neither is proof that they were convinied of the truthfulness of PVJ4 1 s evidence. Their lies in this appeal farther bolsters this holding of fact.- Mrs Neema, learned Sbte Attorney has ur;,.,d this court to dismiss the appeals. In the light of the above I find these appeals seriously wanting in meri to Thoy were buth rightly convie;ted, and their appeals .. against conviction are dismissedo The sentence imposed on them is the minimum undei~ the l.c:iw frr the offence. 'I'he appeals against the jail sentence are also dismissed. Delivered in open court in the presence cf Mrs. Neema State Attorney nnd in the absence of the appellants wo preferred the appea·1-';r):1:2'§n:l and determined in their absence, this 19th day • 0 ,· ' ) - -· ~ • - ;'.~~ ', of May, 1999 at :frusl,iaj '/ .' Ii - ,· ::' .-- t' ' C ; I, .. ' ,' t;:\ •;, '\ ,'i '.:: tt. ,j~ ;/. ,~ ·' ~ ' ,. (,ii~;'.:\ EMK/Ms. ' t

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