Wetson Kibona and Another vs Republic (HC Criminal Appeal No. 84 of 1990) [1991] TZHC 2387 (15 July 1991)

IN THE man COURT OF TANZANIA .!l:'£.}iBEYA I!IGJ! COl:IB,'r QRIWJ.N-! APPEJ\L NO. 1. OF 1390 Original Criminaf/case No.40 of 1990 of the District Co,urt of Nboz- District at Vwa1t1a. 1st WETSON KIBONA) 2nd RAMSON KONJE )'•••••••••••••• APPELLANTS Versus THE REPUBLIC•••••••••••••••••••• RESPONDENT. ______ __...;.............,. - .......---------- J U D GEM EN. T -- ..... • .a.. • .a.. •• + I ,. .• ,, ~~J!t-2.• -· · The three appellants, namely WESTON. KIEONA, RAMSON KONJE ~ RiuSOiif NGUZA, hereinafter referred to~ the 1st, 2nd and· 3rd appellants, respectively,_. were jointly ch8Xged before th-? lower court with the offence of robbery with violence o/s. 285 'ana. 286 of the Penal Code, Upon trial . . the three got convicteq. of such offence and were sentenced to fifi:ecn yes of imprisonment, each, and ordered Jc;o compe,1sate th0 complainant, one FUND;I: s/o SHEYA. . ,. , They are now appealing to lihis court aga1:,nst both conviction cntcnoe and the orcwr _for componsatioo imposed by the lower court. In tis ppeal the t];lrce appellx1ts havel/i. presented by Mr •. Bateyunga, loamed ' advocttet while Mr. Naali, lea;rned stato ·A+torney,/4peored for the Rcpublio.,. · . In the main the judgement of tho lOW•Jr court has been challenged on the gromids that the learned trial mogist :i,te had failed to properly evaluate the evidence for the prosecution, hence his failure to d.ieoover, its wealmcss which should h?,ve been resolved in favour of the appellams, • and that the. lower court erre9- in law and fact in believing the evidence of the P.w.1, rw.2 and P.w.4, who had an interest to serve. ·. At the hea:rin3 of the c:.ppcal rnr. -t .:yunga a:cgucd, inter aliar that, -'i;hough it was in evidence for tho prosecution that when the· il'l..cidcmt took place near a po,nbe shop ma.11.3r other villagers turned up _to the rescue of the CiOmplainant ~ . n:me of such person1:1 was callc to testify before the lowa_r court. He furt:, .. 3r argued that while it woo alleged that the incident t·ook plv.,ce 01.. unL§9 between .the hours of 7. .12m. and l• . .39....P~JE.!.f accordi11g to tho D.W.4 the villa.go ohairrr.an the matter was_casually reported to· him while <. 1 the pombe shop ( t •. !•r.4) on 17111/BJ... about two weeks lcrlicr •. ·He went 0.1 to argue -ha:li acording to the D.!·r.4, the persons reported to him to have l 1 eo11 tho ones responsible for the commission of the offence il'l;. question uore different, being one MASUNG.ll. NZUrfA, OM.ARY' SIMON al'ld. JASTISI ~,AZARO, o.nd none of the appellant's., He further argue that the three app(: lants came to be arrested six months later while at Vwawa Primary Court .,here they were facing other or1mi11al offenoes 1 \

.. = . 2 = ..... in rspect of which the .1st app0llc:int harl. - b0en arrested on 3L1Jj_l<).fl)__,. he 1st a;nd. 3rd appellants got arrested on 7 /4./90 whne· the 2nd ·appellant got a.rrcs:1/ed on 31[3/jO in respect c _,, this offence, ·yet there was no sue;gestion that tho three appellants had evr disnppeared from the village of which the complainant wa.s clso o.._residcnt. It was therefore submitted by M .. Bateyunga learned counsel' for the appoJ lants that· the deley by the , , . ~ . complai11ont to mention their names to tho relevant authorities and their . . subsequant rests. ooupld with. thc f t tlat· the complainant is said to have men·tioned different names to tJ1c· inoec cl1ai:•r:1n1.1 as the ones who committe<i' tho o_ffence went t_o iridioatc that t:1e appollGlllts did not opmmit. . . . · the ·of:fo and the domplainant oontioned tt1eir•. names as an· afte~ thought. Mr. Bateyunga, further argued thD..t t.ho eyidenPe ·of both the P.W.l, P.1'1 .• 2 and. P.W.3, was ofpe_rsons :of owh interest to· ·set"'re in that the P.Wol .as the ·. · father of the P..N.2, while the P.].3 was··the t,.rife of the P.1v.l. He added ci.TtlOng · . . tha:tL of ·the people present at the. pombe shop where th incident s all_"'ed_ to 1-:n.ve ten plo.ce w t}:l.e D.-'.J.5, one ·L.AfS 1 )N · TUY.ANGE-, who in. his evidenoe,: denied to have ever witnesJ;1.cd the alleged, rJbbery incidence.· On the other hand,_ rJT.1". __ ·:tfa.ali, lear1~ st3ite ii.tt'orney came out ili . . . supporli of tho conviction of_the three nppcl;lants on the grounds that the evidence of "!;he P.,\·i.,1 7 P.H.2, P.:1,3 as fu.l.J_y J:lUpport_ed. by the· eyidence of the P.W.4, who could not ·bo said to have a11 interest .t_o .. er.ve;.- wn.s credible a11d rcliab:1.e. He went oi1 t.o a.r«u6 th.at the .1,1.1-through ··the t . " • . P.v1.4, were witnessos of the··act of sovel\ oul_prit, i'ncluding the three . . . appellents of droggjiig .the P.H.l ai'ld robhi:ig hin/o/ some money and some flour from the P.oWe·3, • '·. • • . . . '"t He fu:rther argued. tht t:J'hon the. PW1 · had been dragged by the sevon culprits into the hush! .. he rG,ied ari ala.rm pul; -nobody ' . turned Ul) to his re,3cue except :!;he ·p.w.2· :md P.H~.3o i-rho were then in the . :· .. -- ' _____ ,_ . . . . to argue that whi:).e n.coepting the.t· the:.w,,- P.H.2 and P.W.3 had an 'inter9st to servo, su-)h evide1toe was :fult,y corroborated by. that of the . . P.w.4, wh9 0011fi:rmed l(' have seen the ori(!inal 1st o.ccused, now ist ''appel_lfllrli, iia.king monc; from -'G1 P.l'J.l•s pocket and that_ the original 2nd. accused, now :11d "1 i>ellant' was seen d,1.I'I'yil'lg a club, lll'ld that the three a-ppellants wore t lJ ones i'Tho took :p·, J·t in holding the complainant, while one MASUNGA, who \ ,·.s ·one· of the sevE 1 culprits, was the one who took the flour from .the P.W.} · ·_It :--r~~t··::/\1\lrther contended by Mr. Naa.li th~. #'":'..,:;'.• the three appellants and the other culpr(t!'J who participated in the . ' crime were very well know1: to the proseo\lt1on witnesses. Re went on to . . . argue that ihe }rd , ;'.lpellal!t was relnted t: the P. if .1 in that he was the J

= 3 = son of -iihe P.W.1 1 s uncle, and the 2nd appellnnt wn.s the brother-in-lax,t of the villDge chairmai1 ( Do H. 4) • Iic further :J-I' .• )ied that as the offence was committed in the small hours of the night~ ihen there was sufficient ' . day light fo:r_ proper._ idontifica-Hon and the culprits.had been with the P.W.1,· P.w.2, and P.W.3, for qui'e a reD.Sonab1e time, there was no possi- bili'liy of mistaken identity. He went on: tQ ,a;r•gue that the prosecution witnesses identifiil the seven c\tlprits and t'.1e other culprits mentoned ·bu:li at large wee JUSTIS!. LAZAI-W, and ,MA.SUNG.A NZOW1h He further. argued that aocording to the prosecution eyidence tte-inqident was reported.to the villn-e chairman (DW.4) the same 'night lJUt he. could not respond, for reasons that he was related o the 2nd appollt and he ,is the one who had installed the seven culprits, illclud.i1:lg the three--appelluJ1ts,as tho villcigo StlNGUStnlJ'GUo · He Nent on to soy that the.- three appellants were· first arrested on 3ll,ljl-.2.§z. on ·l;he allegati ::m of 1?._aul;t upon the P. '.·l .1 • Theu while the three appella11ts wore on ha.H the charge was subsequ.en:tly substitubed to one of ropbe lrrHh violpJ, after which tho three appe- llants had to be rearrested, and charged. witl the offence in question. On the defence case Mr. HMJ.i argued 'th.at the appellants defence of alibi ;las rebutted by the prosecutiot. -itnosses as well ns by tho n.u.4 and n.H.5, who confirmed that on the ma.teriol dey a11d. time of the incident \ . . . ' . the three ?-PPelw.ts with the- o·tl1er culrts at large were seen at I:poroto pombe shop, which wns .the pl_ace of the hl,;t:ogcd robbery. ,( f..f3 ·to sentence, it t-ras sub1.iitted by Mr. Naali, that si.."'lce there wa.s threat 9f .use of force with a club during the commission of the robbery alleged, the proper· scntenoe sl1ould have ·oocn t]1i_rj;;y;J;?a.rs and not fiftee11 yea.rs . . - . • ... ♦,. :e, ... ' of imprisonment as passed '.qy t11e ·trial eo·..trt_. ,For ti19 club. ought to be regarded as a weapon for the purpose of t:10 robbery offence. In. reply Mr. Ba.toyunga, mail1tninod. ·;hat it was the evidence_ of both • the P.U.1 and P.:·1.2 ihat when they-:raised an alarm many people who :lere at tho pombe shop n.ppea.r-'11 for their resoue, d witnessed the· _robbery •. Ho ndd.ed ·that there wc:,ti no· evidence on record that the incident was reported I to the village chnirma 1 · on the vecy night t so that the evidence of the ]2.t·I•.4, that he received' the rep·ort two W<'cks latr remained unchallenged. While challenging riir. N..:b.li •s statement that the· three appellnnts wore arrested on 'JL11L!.9!fl, · 'in oonnoction wit.h an assault upon· the .t·l 1 1 but later the snmc ~ot substittrted to one of robbery with violence, 4

= 4 - . Mr. Bateyunga further maintained that even if ;that as true, then the subsJdtution of the charge six months later was clear widence that the offence of robqery with violence ld'er peferred against. the appellants •was· an a.t'tcthought. He added thai; tlie· ev:.idenc of the D.W.4 that when . reporting to him_ the complainant t1e11t·iond other .11asnes other than those of the appellants remai~~d unchallenged •. Thereupon this court fo'Ul1d it to be ·in the best interest of justce to lia.ve ad.di tional evidence of the 'police· o:N'ic:6r who first arrsted the appollo,.1ts · and investigated the case nnd. reqw.:red the production of ·l;he poli- ce complaints· register to dctermino tho elate when the complainant reported the inoiderrt to the poii ce; the ·nature of the report; the persons comploined against by him, the date when each of the thr•Je appellants was arrested and on what account and·.when the three a.ppelJants got charged with the offen in quest ion. . That ·.was accord.i1ig 1y complied with. ll.ccording to the·. evidence of the ,Addi tiona.l witness P.Jv ' one No. _B, 6035 Sgt. Joshua; ii: ·is evident that the rel)ort wns made to the police by the P.H.l on 30)11/gQ, as also refleca.· i11; tho poli90 complaint's report . . ... .. . .. book as per entry No,.131£ f:.cve11 date. It' is however, ·tJ:iere recorded that the offence oomplned of WM one of t'cbbery .of --211600/= ·. D.lleged . ; . . . . ... · to have been made by !.£up xo:.JB..Y.2...1:... · 'Whom the complai1ant claimed to . . ' . know ey their names. Yet in. ·t.hc colum. shouing persons r°.oeeded egaiμst, only the name of one RAISON N'GUZA is recorded. In othdr compla.ili'\i"s · ._ ... _, . recorded therein the names ·0't _i:ill pel;'sona c·omplained ago.inst appon.r to have boon recorded. It is aiso worth noting that whila · in the evidence .. ' ... before the lower court thor w~ ·aJ.k of en ,Prs_o~. to hae taken pa.rt in the alleged· robbery whn rep6ting. ~ -the police station the complainant ·ta.llced of .tour per2onE_ only. I •, ,' ·,.· From the evidence tliat W'M before the lower court together with the additioni:u evidence, .it is oommoi1 ground th::it .·both.the thfee a.ppellont.s. .and the four prosecutiqn witnessea·to.wit, tlla ?.W.l, P.i.2 P.11.3 and P.W.4 tarc, at the .atoriol 'br1e f tle inoient.,:· all reside1!-ts of s.ame Iporoto village., It is also cor..1.on groui1d that on 'Ghe• dey and time of the alleged inodent many pe, ;1le wer .at. Ipol'Oi.o 'pombo shop t.aki.ng their iocal lictuor. It is also. cornmc'.1 ground. that though the alleged incident is . •'. ~ alleged to have taken plat.'p 011 1/11/198:), i;. ·same .was not repood to the. village a.mhorit? ur.til 17,:h doy of som~ month when it was so ca.sua.lly reported ·ho the D.1-r.. ·;, the villago chairman ..

= 5 - It. nev~ iached Vwawa police st2,tion until 30/11/1989, that· is a month· later.-. While it is the oomp_lainant 's claila that when he reported to the D.H.4, his village chairma11 no action wos taken by the said chairman, it is equally not clear what 1eld him from taking tho matter to'the police for cll such perioc;l. Further,whi10 it is the evidence for the prosecution that seven persms, all of ·whom are allogd to have beon known to the p;:-1.1, P.l·l.,2 and P.W.3, were involved in att1;,-'·-'ki:ng and robbing the P.H.l of his m;ney· wl1.ile pretending to be SUNGUSUNGU people., it is on record ilt the police complaints register book th£LI; when the P. :~ .1 reported t~ the police en :J.OLl.1/f!i.. ho talked of f_oUF. Y.O.~~- men only w!.om he claimed to know their ' '· names but did not mention them. Further, initi;11ly only one person one RAlSON NGUZA seems to have been the 011,ly known ·suspect. It is this person whose name a;ppoars in the police complaints register book and against W!1om the charge was originally framed· n.nd filpd on. until ,?3.L4L,f99<?, when a. charge incorporating the other two accuseds was substi 1iUted.. It is also not suggested that ever since the opourance of the: al19ged robbery any of the aJ.)pellants had disap,eared from the_ villc:ige. Going by tho arguments of tho learned St ate Attorney, it would appear that on J.D.-!m..i?2. the throe api)Cllants were ,rrested nnd. placed undc·r police ousto.dy for an alleged .~~~~ upqn the compla.:j.nant (P.Wl) ,· It was then six months later that in tho month of ;\pl il 1990, the charge the subject of this appeal was instituted. Unfori unately even the substitu:l:iad . ' ' joint charge could not be traced in the lower court 1 s 3:ocord. Now going by.such argument, I om onclinJd to subscribe to tho argument by the learned counsel tor the a:ppellt:mts tba the six months' delay in bringing out the subst:i.tuted churgo tends to ,.:leurly demonstrate that such charge must havo been an afterthought. For a..,suming for a moment that the complainant first complJined · against tho appe::.1ants on _or about 3L1.l/19.~ which then led to the arrest of tl1e three of them 011 3l11l,~ for the offence of an assauJt upc.n him, 1ow come that he f(3.iled to complain of the robbery of his money ,!J w·en, until 3qLn/2§2,, when such oomplaint is shown to have been laio a.t Vwnx·m police str,,ion and the only known suspect then being tho 3rd 1-i1poll0).1t. FurthE r, granted that the co_mplainant together with his. son (P. 1< ·) and his wife (P .·T .3) knew the names c;if all the seven rob.bers, all of w. nm ere said to li.wo been v.illage mates, how come that the same could not bl meirtioned wncn the report was made to the polio'? on 39/)1/13.§9,. Furtlwrr,1orc, how is it that th P.H.1, P.W.2, ru.1.d P.w.3, talked of seven rnbberG before the lower court, but the P.W.l

= 6 = ...... ma.q:e ref'.erence to only four of tJ.10m, of whoni he could only mention tlle ~~e. o~ the· 3rd appellant; one H./U:SOlif t·TGUZA when reporting to the polioo '?ll .J.<?fl.1-4~? . : . · Jlll the seven alleged ·s.uspects · i:.1cl11ding ·i;he three al)pellant s aro said to have been well o.wn villnge mates serv::.ng af;l SUNGUSUNGU for the ' .. ~ village and· it. was not in ovidonoc· that· evo_r since the. commission of the alleged offence any of them· had · ever disappeared from the village. .All that ·c011side·red it is the considered op:l.r.io1i bf ·hJ.is court that such cornplai11ant 1 s prevc.rications is cloa.r ev'idence ·;fha·t' either both himelf and -'i;he P. W o 2 and P .W. 3 were neve·r cert ai1i aii -!; o ho actually cornmi tted the robbery upon him (P.t·I.1) if ·l;hat Bver took pla.c. On the other hand this court s enolined to accept the view· that the allged seven suspects . . iJ.1.0lud.ing the three appellants were village s·:u1gusungu, who on the alleged dey of ·!;he· incident had assaulted him as they forced l?,im to go to collect villng-e bricks,· after_ he had earlier. refused to do so., when asked by village authori. ties. .Thus tha .S1bs_equ.ert compla:int )f robbery to t11e police a,gainst them wo.s a plaimed attempt' to fix them., ltth tho.t m mind, I tend to take the prosecution_ evidence as all a frnJne up t:J. tho.t. end •. . In the final nna.lysis and for tl1e abo,rc reasons, I allow these ·. ') . . appeals setting aside ··the co11.vidio1;1 and· scr tcnce together with the ,order , I I , . for oompensation or' the lower oour·b, and ·Or<i.or that ·;;11e three appclli.ts . . should be :set a.t liberty fortJ.1.With unless L.wf'ully· h-:.,ld for tr causa. DGlivercd i11 Chambe_rs, at T:iboya this 15th dcy of juJ..y J.991 1 in the JUDGE -- JU:OOE. -- .. ~ 15/7/91