20121123 TZHC Dodoma

~ .~ • .-uc iU•Gii,.J; .il.!":!!l!Lll ..l.. ,..~uy . . . !!\...V J'-~VI ""'IC TAii\iZA""· ! 1-. .. A l'l!!.l. ., :AT DODOMA (DC) CRIMINAL APPEAL NO. 128 OF 2011 (Original Criminal Case No. 197 of 2009 of the District Court of ivfpwapwa District at Mpwapwa) ABASI ABDALLAH SAGAL!. .................................... APPELLANT I THE REPUBLIC ................................................ RESPONDENT JUDGMENT 22/10/2012 & 23/11j2012. KWARIKO, J. ~ The appellant herein and one EMANUEL S/O SAMBAI the then 2 nd accused person were jointly and together charged before the trial court with two counts of Burglary c/s 294 (1) (a) and (2) an_d Stealing c/s 265 both of the Penal Code Cap. 16 Voi. 1 of the Laws R.E. 2002. It was alleged that. on the 4 th day of November, 2009 at about 22.00 hours at Hazina Village within Mpwapvva District and Dodo'ma Region the two did break and entered into the house of one ANGELINA LEMANYA and stole one TV make Hitachi 21 inches, one Deck make sony, one Receiver, one CD Deck and one Radio Cassette make Panasonic all valued at Tshs, 1,030,000/= the property of A.NGELif\l.A. LEMANYA. ,. ... The appellant was also charged with the offence of Grievous Harm • C/s 225 of t~e Penal· Code. -It was alieged;~,that on the said date :at about 00.15 hours at Ving'hawe village within Mpwapwa District in Dodoma . Region the appellant unlawfully assaulted one DANIEL 5/0 HANGO with block in his chest and caused him grievous harm. The two denied the charge and the. prosecution brought five witnesses to prove the charge against them. "" ,.. - ·The prosecution evidence at the trial reveals that. ANGELINA LEMANYA, PW.1 was sleeping in her home with her husband WILLY LEMANYA, PW3 when they heard some noises in the living room. PW3 woke up and found a light switched on in the setting room. He found electronic equipments (mentioned earlier) stolen. Upon look out he saw a person fleeing and he identified him as the appellant herein. When he called his name he dropped the stolen TV and ran away. ~ . PWl r!=ported the matter -to the hamlet chairman one GABRIEL S/0 MEJA CHIU~E 1 PVVS. PV\/5 raised alarms \Nf.lere neighbors responded and scattered around to look for the thieves. During the search one DANIEL S/0 HANGO spotted some people sitting on the road and when shouted one of them, then 2nd accused ran away. A pillow case·(exhibit Pl) which had in it stolen items, 2 TV decks, one receiver and TV set ( exhibit P2). The appellant who was among those people ran away but was chased and apprehended by PVV2. The appellant is said to have resisted arrest and injured PW2 with a stone. He vvas found with a stolen Radio. A search team also included MESHACK S/O GAILANG.L\ PW4. The appellant was 7 .taken to Police whHe PW2 was escorted to hospital. The appellant and the nd 2 accused thus we~{ cl1arged accordingly. The appellant is said to have nd mentioned the 2 accused upon interrogation by No. F. 1739 DC JOHN, PW5. At the end of the prosecution case the court found that a case had not been made out against the 2nd accused and thus was acquitted in terms of Section 230 of the Cr~minai Procedure Act Cap. 20 R.E. 2002.'.' In his defence the appellant testified that he was coming from a buriai ceremony on the material night at I°.30 hours'.'when he found a colleague· smoking cigarette and was offered one. Before he smoked he heard alarms and he responded but upon arrival he was- stoned in the head and lost consciousness. When he woke-up and inquired what was the matter he was toid that he would know it at the police station. ~ •• I In its judgment the trial court found this case to be straight forward. That· the appellant was identified by PW3 at the scene and mentioned before PW6, the ham!et chairman and was found in possession of stolen property. Thus, he· was found guilty, convicted and sentenced to fifteen (15) years, five (5) years and two (2) years imprisonment for the 15\ 2rid and 3rd counts The sentences were ordered to run concurrently. • Havin,g been dissatisfied with_ the trial .court's decision the appellant filed this appeal upon the following six -grounds: . 1. That,_ there was no proof that any burglary had occurred at the complainant's home. 2. That, his identification at the scene was not proved. 3. That, the offence of grievous harm was not proved. 4. That, th~ PF3 Exhibit P3 was admitted contrary to the law: 5. ·That, the evidence of PVv'l and PVV2 contradicted. · 6. That, the ·trial court did not consider the evidence from both sides. When the appeal was called for hearing the appellant did not have '\ anything to.add as he only implored the court to consider his grounds of 1• -: . appeal and allow the same. On the other hand Ms. Magesa learned State • Attorney appeared and argued the appeal on behalf of the respondent Republic. It was Ms Magesa's contention in reiation to the 1st ground of appeal that the offence of burgiary had been proved. That the evidence by PWl and PW3 who were the occupants in the house where incident occurred explained how they had their properties stoien. They· raised alarms and neighbours traced and apprehended the appellant in possession of stolen property. 1 In the second ground of appeai it was Ms. Magesa s contention that the appellant was _sufficiently- identified by PW3 and was apprehended by PW2 where he was found in possession- of stolen items. - In the third and fourth grounds of appeal Ms. Magesa was of the view that thoug"r,:1 it was proved that the appellant had injured PW2 during the arrest as the allegation was supported by P\Nl, but since the PF3 was admitted in court contrary to the law under Section 240 (3) of the Criminal Procedure Act then the offence of grievous·· harm was not proved. In relation to the fifth ground of appeal Ms.Magesa submitted that··· PWl and Pv1)2's evidence did not contradict. That the evidence·· that the .• appellant wa§ found in possession of _stolen property has been supported • by PW4 and PW6. And the name of the street where the appellant was found hidden was imrnater1al. In the sixth ground of appeal it has been submitted by Ms. Magesa learned State Attorney that the trial court considered the defence evidence as shown at page three (3) of the judgment. Thus, in totality the appellanfs conviction was rightly reached. • • However, Ms. Magesa was of ths opm1on that th·e terms . of imprisonment met out by the trial court were illegal and did not comply with sentencing powers of the trial magistrate provided under Section 170 (1) (a) & (2) of the Criminal Procedure Act. · In his rejoinder the appellant contended that he was one of the respoRdents . of the alarm raised by the complainant hence wa~ not the ~ thief. Following th~ submission by the parties, the issue to be decided is whether the appellant's appeal is meritorious. In my _considered opinion I find it convenient to decide the sixth ground of appeal first since if decided in the affirmative it will have the effect of disposing of the appeal. In this ground of appeal the appellant complains that the trial court did not evaluate the evidence from both· sides. In essehce and as rightly submitted by Ms. Magesa, the appellant1s : complaint in :this ground of appeai is that his defence had not been • considered along with the prosecution evidence. Thus, 1 do not agree with Ms. Magesa that the trial magistrate did consider the defence evidence, not at page three of the Judgment or anywhere else in the judgment. l-\t page three (3) of the judgment the trial magistrate only summarised the defence evidence after he had done so for the prosecution evidence. What followed was for the trial magistrate to consider the . prosecution evidence oniy where the same was found sufficiently proved against the appellant. He · was accordingly found · guilty in all coun£5, convicted and sentenced. · This trend of events show that. the trial 2~Jrt decided this case by basing on the prosecution evidence only. This is so because nowhere is shown that the defence evidence was ever considered along with the prosecution evidence before the matter was decided. ,. . ' Thus, failure of the triai court to consider the defence evidence was a violation· of one of" the appellant's basic rights which fs a right to' a fair hearing. This right is sufficiently enshrined in our mother law, the Constitution of the United Republic of Tanzania, 1977. It· is provided under Article 13 (6) (a} thus; "When the rights and duties of any person are being determined by the court or any other agency, that person shall be entitled to a fair 'i hearing and to the right of appeal or other legal 1 i re,71edy against the decision of the court or of the ,..,..;..e-I O-ge--·" V!.lfll ----- r11edr,· 0 IILJ' LU!IILl!wl, • • Therefore, in the wording of this provision cited above, the trial court when sat to decide the appeliant's right did not give· him fair hearing. That is to say the court did not consider the appeliant's case before the decision was reached. An accused's defence however flimsy may seem should be respected and thus given room for consideration. Since it is the accused's -· defence along vvith the prosecution evidence which can decide whether the = • · accused's case had proved or not. The trial court's omission to ignore the . r - defence evidence was fatal. This fatal omission vitiated the judgment and < ) · it is hereby declared null and· void ·and it is quashed ·and all orders thereto are set aside. Having been quashed the whoie _trial court's judgment I do not find the base within which the other grounds of appeal can stand. Thus, this .... appeal is hereby allowed, conviction quashed and sentence set ~side. The i • appellant is ordered to be released from custody unless he is otherwise lawfully held. JUDGE 23/11/2012 Court: Right of Appeal fully explained. < - - -~]/;J (M.~RIKO) JUDGE 23/11/2012 DELIVERED AT DODOMA 23/11/2012 Appellant: Present For Respondent : Ms. Magesa State Attorney· C/C: Ms. Komba 9 ,l l 1 ' 1_: