AT BUNDA ECONOMIC CASE NO. 46/2013 REPUBLIC VERSUS JUDGMENT

Transcription

1 IN THE DISTRICT COUR OF BUNDA AT BUNDA ECONOMIC CASE NO. 46/2013 REPUBLIC VERSUS JUMA MALUMBE JUDGMENT BEFORE HON: S. A. KASSONSO - PDM The Accused person, Juma Mulumbe stand charged with four (4) counts as here under:- 1 st Count: Entering into Game Reserve without a written permit cis 15(1) of the Wildlife Conservation Act NO.5 of 2009< Particulars of the offence are to the effect that Juma charged on 16 th day of July, 2013 at Mto Rubana Area into lkoronqo/grumetl Game Reserve within Bunda District in Mara Region did enter into the said area without having a written permit from the Director of Wildlife. 2 nd Count; Unlawful possession of weapons in a Game reserve cis 17(1) and (2) of the wildlife conservation Act No.5 of 2009read together with paragraph 14(a) of the first schedule to the Economic and organized crime control Act Cap 200 (R.E 2002) That, Juma charged on 16 th day of July, 2013 at Mto Rubana Area into Ikoronqo/Grumeti Game Reserve within Bunda District in Mara Region was found in possession if weapon to wit: one bush knife in reserve and failed to satisfy to the authorized Officer that the said weapon was intended to be used for the purpose other than huntingr,killing, wounding, or trapping of wild animals. )- 1

2 3rd Count: Unlawful hunting in a Game Reserve cis 19(1) and (2)(d) of the wildlife conservation Act No. 5 of 2009 read together with paragraph 14 of the first schedule to the Economic and organized crime control Act Cap 200 (R.E 2002). Particulars of the offence are to the effect that Juma charged on 16th day of July, 2013 at Mto Rubana Area into Ikorongo/Grumeti Game Reserve within Bunda District in Mara Region was found hunted one Hippopotamus in the said Game Reserve without having any written permit from the Director of Wildlife. 4th Count: Unlawful possession of Government Trophy cis 86(1) and (2) (c) of the Wildlife conservation Act No. 5 of 2009 read together with paragraph 14(d) of the first schedule to the Economic and Organized Crime Control Act Cap 200 (R.E 2002). Particulars of the offence are to the effect that Juma Charles@Mulumbe is charged on 16th day of July, 2013 at Mto Rubana Area into Ikoronqo/Grurneti Bunda District Hippopotamus in Mara Region was found valued at Tshs. 2,400,000/= in possession the property Game Reserva within of a full carcass of of Tanzania Government without Valid permit. The accused person pleaded "Not Guilty" to aii four (4) cou nts In establishing the case against the Accused person, the prosecution called three (3) witnesses: PW1, John Robert Ntarisha, Muha, 30yrs Game scout of Ikorongo/Grumeti Game Reserve sworn and stated inter alia that he received training at Pasiansi Wildlife institute for one year. He has five years working experience and his duties Game Animal from Poachers. On 16/7/2013 at around 11 :30hours/ he was in patrol together with other Game Scouts at Rubana River Area. His coheagues were Kamambe Ngora, and Peter S/O Gorobani. While in their patrol, they saw the foot prints of human beings. So, they followed the foot steps/marks which led them to a bush and in the bush they saw the head of Hippopotamus. They prepared a trap and ambush at the Area.... during there ambush, they saw one person coming in the bush to take that head of Hippopotamus. The head of Hippopotamus was fresh and they arrested that person and they subsequently asked that person if he had a permit which allows him to enter and -hunt-ln.the Game Reserve and he answered that he had no permit. "J:()ICrlh~-mth~f-h~ '~dc;ck.the." ",'" That person is called Juma S/O. Mulumbe is the accused person in the Atcb~.~~was in possession of panga. ""'\.'!~"':-' \:. 2,.n _'

3 At this juncture, PW1, showed the panga which was found in possession of the Accused person during the arrest, and accordingly he prayed to tender the same as exhibit; and the court granted his prayer and one panga wa received and marked as Exhibit P - 1 PWl went on to state that there after they took the accused to KDU - Bunda. PW2 Erwin s/o Mwoywa sworn and state inter alia that at KDU - Bunda he is a Game Warden. He received training at Mweka Wildlife Institute, His duties among others is to identify and evaluate the Government trophies. According to PW2 the two forms were prepared by his office and it was him who prepared them and they are related with he Animal called Hippopotamus (Kiboko). first form is related to identification and Evaluation of the Government trophy. The He identified the animal killed as Hippopotamus and he valued it at USD 1500, which is equal to Tshs.2,400,000/= on 17/7/2013. Government Trophy he prepared this certificate, Having identified and evaluate the put it a rubber stamp of their office and signed it. There after, he filled as Inventory form for the purpose of the court to see the Government trophy. He took the Government trophy (Hippopotamus) before the court and the Magistrate after seeing it, he ordered the Government trophy to be disposed off; and indeed the same was done. At this juncture, PW2 prayed to tender in court the certificate of Identification Evaluation of the Government trophy and the Inventory form as Exhibit. and And since the Accused person had no reasonable objection as to the PW2's prayer, this reasonable court collectively received the certificate of identification and Evaluation of Government Trophy and the Inventory form as exhibit and marked as exhibit P - 2. That's all. When cross- examined by the accused person PW2 stated that he said not record the accused's statement that was not part of his duty. PW3, Kamambe SIO Ngora, Ikoma, 36yrs, Game Scout of Grumeti Fnd, sworm ans stated as follows:on 16/7/2013 Ikorongo/Grumeti He has ten (10) years working experience as Game Scout. at around 11:30hours Game Reserve. he was in patrol along Rubana River in In that particular patrol he was together with other Game Scout namely John S/O Ntaisha and Peter Gorobani. In the course of their patrol, they saw foot marks of Human beings and they followed them and managed to arrest the Accused person in the dock. Subsequently they found the Accused person in possession of a Panga and a head of Hippopotamus which was fresh. They asked the accused person about the permit and he answered that he had no permit which allowed "him to enter, possess weapons and Government trophy. ";:;.-~. i Thereafter they took the Ao:;:qse.d;personto'iKDU - Bunda for further legal actions. That's all. ", / ;';':" -:'... ~~1_,~ 3

4 When PW3 was cross examination by the Accused person, he stated that he came to know the accused because of this incident, and he is called Juma 5/0 Charls. They arrested the Accused person in possession of panga. His duty is to guard Game Animal, he did know the Accused killed the Hippopotamus, and he (the Accused person) told them that he had no permit which allowed him to kill that Hippopotamus which they found in his possession. And that was the end of the prosecution case. During the defence, heaving the Accused person called no witness. DW1, Juma 5/0 Mulumbe, Sukuma, 35yrs, peasant of Nyakomogo village in Serengeti District; affirmed and stated inter alia that, he remembers it was on 6/7/2013 at 6:00hrs, he left his home to Rubana River where he went for fishing. When he arrived at Rubana River he began to fish. At around 11:OOhrs the soldiers i.e the Game Scout of V.I.P emerged they were coming from the other side of the River and they were driving the cattle across the River when they had finished to cross the cattle they came at the place where I was and greeted me and subsequently they asked his names and he told them that hi name is Juma 5/0 Malumbe. They subsequently told him that he was under arrest and they hand cuffed him, he asked them what offence he had committed to warrant them to handcuff him and they told him that he would be notified about the offence he had committed ahead. He obeyed and they crossed the river up to the place where they parked the Motor vehicle and brought him to KDU - Bunda. And on 17/7/2015, he was brought before this Honourab!e court where the charge which was read to him was quite strange to him. According to DW1! he does not know how to hunt. That's all. On cross - examination, DWl asked that he is a resident of Nyankomogo village, from their village to Rubana, you can walk for four hours. Rubana River is a border which separated the village area and the Game Reserve, He used to go to fish at Rubana River, However, it was this time, he was arrested. The Game Rangers who arrested him were new to him and he did not see any trophy in the motor vehicle. That marks the end of the Defence case and sum up the total evidence adduced by respective parties' i.e the persecution and the Defence, before this Honourable court. Havi,ng considered the evidences as adduced in the instant case, the following question. ;needi'h~ge'd;)'n?ideration as to ensure good administration of (Criminal) justice suffice it,';ts s~y:""'''~, ';~;)!;:';,::~ a)'cwh~t;her the Accused person entered unlawfully in the Game Reserve 4. -,...-,.._, 't",,:'

5 ... ~,, b) Whether the Accused person entered unlawfully was in possession of weapons c) Whether the Accused person unlawfully hunted in the Game Reserve d) Whether the Accused person unlawfully was in possession of Government trophy. With regard to the foregoing issues, it was by PW1 and PW3 that when the were in their patrol Grumeti Game Reserve along Rubana River Area; they managed to arrest one person being in possession of one Panga and one head of Hippopotamus which fresh. And when they asked about the Permit of entering, hunting and possessing of weapons and Government Trophy the Accused person answered that he had no permit. Its further undisputed that when PW1 and PW3 asked the arrested person his name, he told them that he is called Juma Murumbe. The evidence adduced by PW1 and PW3 got some support from the evidence of PW2, a Game warden from KDU- Bunda, who testified that on 17/7/2013 while at his office he was called to identified and overrate the Government Trophy which was brought at his office he identified it as full carcass of Hippopotamus at USD 1500 which is equivalent to Tshs /=. However during the Defence hearing the accused person started he was arrested when he was fishing along Rubana River, this VERSION OF THE Accused person seems to be nothing but a lie since at that area (i.e Rubana River) most of people are going there to fish, why did the Game scout first arrest the accused if his story was true? Did the Game scout hold a grudge against the accused person as to affect his arrest and ultimately fabricate the evidences against the Accused person? As to the second question, both PW1 and PW2 stated that they came to know the Accused person via this incident and during his defence, the Accused said that the Game scouts who arrested him were strangers (new) to him. Thus under the circumstances it cannot be inferred that the Game scout arrested the Accused person out of the grudges which they had against the accused person. Taking into consideration the requirement of the law both statutory and case laws, it is crystal clear and undeniable that the prosecution have a duty of establishing the case against the accused person beyond any reasonable doubt and the accused's duty is not to prove his innocence rather to cast a reasonable doubt on the prosecution evidence. Basis on the evaluation of evidences and reasons as aforediscursed in the instant case, this Honourable court is satisfied that the Prosecution have exercised their legal duty finally andthe accused person did not raise any reasonable doubt to the prosecution "evidence. :Th'j'5is 50 because, although the accused during his defence stated that he. "\.5 " was not arre~te~, with the possession of the said trophy. And, it was the accused person who te?tif\!=d "that he did not see any trophy when he was ordered to board onto the,~, ( J.'.:..:,_ ':,':-":"l:~'~t ), 5 -~~

6 o.~.' ~motor vehicle. And if that is the case, it is undisputed that the accused was found in possession of the Head of Hippopotamus which is equivalent to one Hippopotamus killed worthy USD 1500 equal to Tshs. 2,400,000/= 17/7/ For the foregoing reasons and circumstances of this case, this court finds PW1 and PW3 as reliable and Gedible witnesses since their testimonies got support from that of PW2. And eventually the Accused person is hereby convicted on all four (4) counts as charged. Sign: S. a. Kassonso - PDM 23/4/2015 PREVIOUS No. previous RECORD MITIGATIONS I pray for the court limence SENTENCE 1st Count: One year imprisonment 2 nd The accused is sentenced to one year imprisonment 3,d The accused is sentenced to five years imprisonment 4th The accused is sentenced to Tshs. 24,000,000/= fine or twenty years imprisonment in default -of fine. Sentence to serve concurrently, if the accused fails to pay fine. Sign: S. A. Kassonso - PDM 23/4/2015,{.' or:r ~. ~:o: ~c.;'0 :~;:.r~7~1_' or.,_., ~.:. 1".-' - v ' "j "~ Y'_. ;.. ;. - ::~'.-:::.,~~---~-,~-,-r'<';~"~:t~.'~ ~ / -../ L -.-.;»:!: \ i I, \ - \ \, 6