Henibo s/o Green Silungwe vs Republic (Criminal Appeal No. 12 of 1998) [1998] TZHC 2322 (5 August 1998)

J IN THE 'HIGH 'COlffiT ·op TI-\NZJ.\NIA CRIM:tN11L APPEAL NO. 12 OF 1998 ( Original .8conomic Case No. 19 of 1997 of the the District Court of Mbozi at Vwawa) HENIBG S/0 GTIEEN SILT)NGW.E 'IPPELLANT Versus THE REPUBLIC RESPONDENT J UOOMBNT . ·.-:::, · yi,ilIPOPO., J. : .. ,··, A driver with a lorry of Iringa Riii'I'CO who ·was going,: to· load coffee · bngs at Igamba Village, Mboz_i Distric·t was asked for ·:.1 lift by a ·,orri'an who wa. 9 with 3 other men one of whom was detected· by· ttie driver of tlie lorry to be having· p. hidden fiream" The driver eleverly dodged•'·to take .. ·-- ...... them and ,-1ent secretly to r_eport .&bout the suspects to the :v:iilage government authority including P'·J.1' Geqrge s/o P.ron Lyand3. the Village Che.irm@l who .immedi:1tely cal.led up villnge· ·roil_i tiamen to trace itncl arrest the 4 suspects. On their arrest 2 · of them o.1ere pounced to death ' by being barred alive through m,,b justice the actused survi<red the assault of the 9.Dgry v::i.llagers to face this trial where:;is the woman ~ :.. .,. suspect is the only one who. successfully. escaped •. The. -triai co;rrt of ' ·----. ,-, Mbozi District Court pr0sided. over by the_. le&ned !'1r··· Lupenzah (Sl)}.1) convicted t;he appellant with the offen·ce of h0ing · found with ;;t f'iream · unb.wfully c/ s. 1.3 ( 1) and 31 ( 2) of the ;)rms ci- \mmuni tion Ordinance Cap_. 223 ::md Para 20 of the 1st Schedule to· :md 59 (2) of the· conomic and Organized Control Act 1984 as_··end.ed by Act No. 10 of 1989 and i'tct N:?. 3 of 19920 He was accordingl.y sentcmced to 10 years imprisonment. The appellant· HNIBO :S/O G;RBiI;N ;:;ILTJNG'.-JE has filed 6 grounds of appeal. One of the grouri·as-. of appe-:::1 is that tbere was a contradiction between the testimony of P\·I ." 1 Georte r;./o i:qn Lye.nd<:", the l\1illage Government's Ch.'.:'lirmru1 and P'<J.2 Juma s/o i'bgwa·za- -!le militi.:-m1en incharge concerning .. r,. tbe gun which according to the testfi'aony of PW._1 was fo;md with one of the killed suspect whereas P'1. .testified to the contr2ry th:-"t the gun .. was found with the c.ppello.nt. The learned Mr. Nagela, State Attorney has contested this point thc:.t this contradiction and any others are minor ones w::iich don't effect the conviction of the appellant.· The 3.ct-.~3.l militia man who c:rrrested the appella,.--i.t is I":-i .2 who testifierl th&t it is the appellant who was found with the gun. Since PW.1 do not do the actu::i.l arrest of the o.r.i-pellant but said the appellant after he was arrested and brought tG him his testimony of how the gun was found

2 with the o.eceased suspect was a bit erronous and he actually corrected himself in his own same testimony by clar'ifyin:; th;:-tt acturu.ly it was the accused who was found with the gun. Even if the g.un had been with the deceased, in law the appell::-mt was 'constructively in his illegal possession too as correctly argued by the learned Mr.• Nangela - State :\ttorney bec::rnse they h3.d a common unlawful pur;pose and mission to be together with a gun to tbe inferred knowledge of the others in the gro1..tp. The other gro11n9, of 2..;opesl the driver of Iringa REI'CO did not testify in here for the appellant. has not been chexged with attempted robbery '!-:Jut with unlawful possession of a firearm to which offence there is an eye witness in the :form of P',1.2 as corrobor2,ted by P).1 and the :production of the gun itself as an exhibit in court. This grounr:~ on the alleged heo.rs,,y evidence of P1:J. 3 tbe OC-CID of Mbozi .., /\SP 'senjele is i:il.So .irrelevant for hG cn"lle to the scene later on after the appellant had ::.1.l:eady been Prrested by P'd.2 and PW.1. The other ground that the burden of proof was shifted ta the a'ccused has some validility. 'l'he comment of the tri::il rnagisttate tho.t the appellant cl.id not call a witness 'and th.:it as such wh::i.t ,)1e alleged in defence ·was not genuine was quite· unc<:lled and meant to infer th,,t the accused h~d an obligation to exonol"ate himcGlr whereas be only has to raise a reason,3.ble doubt tti:3:t ho may have. ~t. h6on found with the guri unlawfully. Whoever rescued the appellant from the 3.ssaul t .metted out by the public wrath moved but have W3ter 7 d (own the testimony of P':IJ.2 who arrested. the .appellant with tho gnn. 'I'he mob cc1.me la-cer on aftor the arrest. The unfortunate comment by the trial m,;,.,;i8trate about the not calling witnesses .to vinJictate him was not prejw',icial leading to ;J..DY appel: ::mt vs conviction bec,:mse there was ample evidence of p;,J.2 and PW.1 wbich testimony prov8d beyonc} reasonable iBhat the appellant was indeed found with the gun. The remaining ground th,··t there was no corrob0rative evidence 'iE not justified. ff;r witb the eye witness of P';J .2 and p,J .1 there was nb need of more corroboration. The app::,r:l is ~roundlesso Ths conviction we.s propere ~1s for sent--rnce the learned Mr. No.ngela -: State AttornGy h,-is s 1 1_p:-)ortcd a reduetion in the sentenee since the appellant_ was· a first :_iffender. The ground of the app02-l on the sent0nce allege thc1t the sentence ,,1as oxeessive., ivi th the spn.te of unending armed robbsrics in ;Jbozi 'Ji.strict a stiff sentence as a general rule to Mbozi District is quite jUFJtifiod • • < •••• 0 ••.• /3 ..

J 3 But, in the circumstances of this case tho appellant already suffered punishment of assQult of the public evan befora he had been convicted by a court of lr-1.w of ::n1y offence .3.t all GDd no likely of 4 of them regrouping for any btbor criminal offence committed because two of the conspirators hr:tve died 0.nd one woman who survived has run away and keeping how in hiding. I therefore reduce the se11tenc0 by h,:uf to 5 years imprisonmcnto 5/8/98 Coram~ Hon. l'hn.pcrr_:rn, J. App,:1lla.nt: Henibo Gr0,3n Sil.ungwe (Sgd.) JUl.YJE 5/8/98 For Respondent: .Mr. Bonifo.ce - State !1ttorney - Present. C/C: Mr.s. Mponzi. Court: Judgment delivor<.d. in the presence of both partiese ( Bgd. ) D. Lo K. -}falIPOPO JU'.JGE 05/8/98 true copy of th:::; original judgement • .... -! ,,,,.·. ·; .. A, "· ;.:,. ,' DISTRICT RB3ISTP.AR