RAMADHANI JUMA VS REPUBLIC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB- REGISTRY OF MANYARA AT BABATI CRIMINAL APPEAL NO. 14321 OF 2024 (Appeal from the conviction and sentence of the District Court o f Mbu/u in Criminal Case No. 43 o f2023) RAMADHANI JUMA............................................................. APPELLANT VERSUS REPUBLIC.....................................................................RESPONDENT JUDGMENT 15th July & 12th August, 2024 D. C. KAMUZORA, 3 . The Appellant was aligned before Mbulu District Court (hereinafter referred to as the trial court) charged with the offence of armed robbery contrary to section 287A of the Penal Code [Cap 16 RE 2022]. The particulars of the charge were to the effect that, on 28/6/2023 at Mongowamono village within Mbulu district in Manyara region, the Appellant did still cash money TZS. 300,000/= the property of one Lilian Boniface and immediately before and after such stealing, did threaten her with a knife in order to obtain and Page 1 of 17 I retain the said money. The Appellant pleaded not guilty hence, the matter was opened to a full trial. The prosecution paraded three witnesses and tendered one exhibit while the Appellant was the sole witness for the defence case. A brief factual background underlying the instant appeal as could be gathered from the record is that, in the night of 28/6/2023, PW3 a businesswoman running a shop and restaurant was sleeping. While the shop was closed, PW3's restaurant was still opened and it was under supervision of PW3's younger sister one Martha Boniface and two brothers namely Aloyce Fabian and Mathayo Mbatata. All over the sudden, PW3 was awakened by noises from the restaurant as she heard the utensils being broken. PW3 woke up and went to the restaurant to see what was going on but she met her younger sister and Mathayo running to the house. PW3 was able to see the Appellant and tried to fight him but he was able enter their house holding a machete and a torch accompanied by other two bandits; Paul Philipo and Hamisi Waziri. That, PW3 went to the room to check on children and the Appellant followed her and ordered her to give him some money. When PW3 replied that she had no money, the Appellant searched the trouser she was wearing Page 2 of 17 and took TZS. 300,000/- and fled away. The matter was reported to the police and the Appellant was arrested and aligned before the trial court. In his defence the Appellant denied to have committed the offence. He narrated that he was initially charged for the offence of house breaking and stealing but later on he was charged for offence of armed robbery. He stated that on 28/6/2023 he was arrested by a police officer namely Goodluck who asked him the whereabouts of Hamisi Waziri, Babu Naftar and Zai Moses. The Appellant claimed that he was told by the said police officer that he would be released at the police station but on arriving at the police station, he was beaten up and charged jointly with another person called Babu for the offences of house breaking and stealing. After hearing the matter, the trial court was convinced that the prosecution managed to prove the case against the Appellant beyond reasonable doubt hence, convicted and sentenced the Appellant to 30 years imprisonment. The Appellant was displeased with the conviction and sentence meted out against him thus, preferred the instant appeal with six grounds which can be conveniently summarized and reduced into 5 grounds as follows; Page 3 of 17 1. That, the prosecution did not prove its case beyond reasonable doubt 2. That, the trial court erred in law and in fact in con victing the Appellant basing on wrong exhibits. 3. That, the trial court did notprovide enough time for the Appellant to call his key witness. 4. That, the trial court erred in law and fact for relying on the evidence ofPW l, PW2 andPW3 which was hearsay. 5. That, the trial court implored some legal technicalities which hindered the Appellant from cross examining PW1 and PW3. When the appeal was called for hearing, the Appellant appeared in person while Ms. Anifa Ally, learned state attorney represented the Respondent. The appeal was disposed of orally. The Appellant argued the grounds of appeal generally. He submitted that he was convicted and sentenced for the offence he never committed. He argued that the evidence against him was cooked because the police officer who testified against him did not know him. He claimed that, initially he was charged with house breaking and stealing but the offence was changed later to be armed robbery. He denied being the owner of the machete and knife tendered (exhibit PI) and submitted that he was arrested and sent to the police station within nothing. He argued that the evidence Page 4 of 17 against him was hearsay since the witnesses who testified before the trial court admitted that they did not witness the incident. He urged this court to acquit him. In reply, Ms. Anifa Ally, learned state attorney submitted jointly the 1st and 4th grounds of appeal. She argued that the evidence of PW3 was direct evidence as she saw the Appellant on the material night carrying a machete and a torch. That, the victim also saw the Appellant entering her house and taking her money from her the trousers' pocket. The learned state attorney was of the view that the victim was the eye witness and her evidence can be trusted. To buttress her argument, she referred the case of Joseph Mkumbwa & another v Republic, Criminal Appel No. 94 of 2007 [2011] TZCA 118 in which reference was made to the case of Jaribu Abdallah v Republic Criminal Appeal No. 220 of 1994 (unreported). The learned state attorney further submitted that, the incident took place at night and as per the case of Waziri Amani v Republic, Criminal Appeal No. 55 of 1979 [1980] TZCA 23 a witness is required to show that there was enough light and the accused person was known before to the witness. She argued that, PW3 explained that there was enough light which made her to identify the Appellant and she knew the Appellant as she had ! Page 5 of 17 seen him several times before the incident. She argued that the incident took about 30 minutes and therefore there was no way the victim could confuse the Appellant. That, apart from PW3, there is evidence from PW2 the hamlet chairman who testified that after the Appellant was arrested, he was interrogated and confessed to have invaded the victim and stole some money from her. That, PW2 was able to identify the Appellant as the resident of his hamlet. In reply to 2nd ground Ms. Ally submitted that the exhibits were tendered by PW1 and there was no objection raised by the Appellant against the admission of the said exhibits as reflected on the record. She argued that, since there was no objection from the Appellant, then the exhibits tendered belonged to him. In reply to the 3rd ground of appeal the learned state attorney submitted that the Appellant was given chance to call his witnesses but the Appellant informed the court that he was ready for the defence and he had not witness to call. She maintained that section 231 of the Criminal Procedure Act [Cap 20 R.E 2022], (hereinafter referred to as the CPA) was complied with. Page 6 of 17 In reply to the 5th ground of appeal, Ms. Ally submitted that the Appellant was accorded chance to cross examine all prosecution witnesses. That, despite being given that chance, the Appellant did not pose any question to PW3 thus, it has to be considered that he agreed with what was testified by the witness. She referred the case of Nyerere Nyague v Republic Criminal Appeal No. 67 of 2020 [2022] TZCA 103. She therefore urged the court to dismiss the appeal. Having gone through the parties' arguments and the record before me, it is now the duty of the court to determine the merits of the grounds of appeal raised by the Appellant. I will start my deliberation with the 2nd, 3rd, 4th and 5th grounds of appeal which are based on specific issues before reverting to the 1st ground which is a general ground that needs evaluation of evidence. Starting with the argument covered under the 2nd ground of appeal that the trial court erred for relying on wrong exhibits, it is on record that PW1 tendered one machete, one knife and one torch which were collectively admitted as exhibit PI. It is on record that the Appellant had no objection against admission of exhibit PI. In his submission, the Appellant did not point out anything wrong with exhibit PI. Equally the Appellant did not have Page 7 of 17 serious cross examination on PW1 regarding the exhibit. Despite being referred by the trial court, the said exhibit was not considered as a conclusive proof to the offence. However, its weight will be discussed while reassessing the evidence. On the argument based on the 3rd ground that the Appellant was not given enough time to call his witnesses, this court finds the records are clearly showing that the Appellant was given chance to call witnesses. At page 19 of the typed proceedings, after the trial court had delivered a ruling on case to answer, it addressed the Appellant on his rights and he is quoted to have informed the trial court that he was ready to defend himself on that day (23/1/2024). At page 19 of the typed proceedings, after he had testified, the Appellant informed the trial court that he had no witness to call and prayed to close the defence. The record does not show if the Appellant requested to call witnesses and was denied the chance. I therefore find the 3rd ground of appeal lacking in merits and I dismiss it. In the 4th ground of appeal, the Appellant faulted the trial court for basing its decision on hearsay evidence of PW1, PW2 and PW3.1 agree with the learned state attorney that the evidence of those witnesses was not hearsay for they testified on what they saw or heard from the eye witnesses. Page 8 of 17 PW1, was the exhibit keeper and his testimony was to the effect that he received exhibit PI from his fellow police officer and kept it before tendering it court. PW2 was hamlet chairman whose testimony is to the effect that he was called at the scene and on arriving there, he was informed by PW3 that it was the Appellant and two others who invaded her house. Therefore, PW2 testified on information received from eye witness thus, his testimony cannot be considered as hearsay. He also testified on the exhibits he saw at the scene, the fact that he was present when the police officer went at the scene and when they arrested the Appellant. Such evidence cannot be regarded as hear say. Similarly, PW3 claimed to be eye witness thus, the evidence cannot be considered as hearsay. Nevertheless, this court will assess the evidence in its totality and see if it was water tight to amount to conviction. As to the 5th ground of appeal the Appellant faulted the trial court for using some legal technicalities and other terms that hindered him from cross examining the PW1 and PW3. It is unfortunate that he was unable to point out technicalities imposed by the court which denied him the right to cross examine the witnesses. I agree with the submission by the learned state attorney that the Appellant was afforded chance to cross examine the witnesses. The record shows clearly that, the Appellant cross examined PW1 Page 9 of 17 and PW2 but opted not to cross examine PW3. The Appellant's contention that he was not afforded chance to cross examine PW1 and PW3 cannot stand. I therefore find the 5th ground of appeal lacking in merits and it is dismissed. Turning to the first ground, the Appellant is faulting the trial court for relying on prosecution evidence which did not prove the case beyond reasonable doubt. The trial magistrate's conclusion was based on exhibit PI, the fact that the Appellant failed to cross examine PW3 and the fact that the Appellant was identified at the scene of the crime. In determining whether the trial court was correct to conclude that the prosecution evidence proved the offence of armed robbery beyond reasonable doubt, this court sitting as first appellate court will reappraise the evidence on record. The law is clear on the elements of the offence of armed robbery which must be proved for the court to convict the accused person. The provision of section 287A of the Penal Code to which the Appellant was charged reads: "A person who steals anything, and, at or immediately before or after stealing is armed with any dangerous or offensive weapon or instrument and at or immediately before or after stealing uses or threatens to use violence to any person in order to obtain or retain the Page 10 of 17 stolen property, commits an offence o f armed robbery and shall, on conviction be liable to imprisonment for a term o f not less than thirty years with or without corporal punishment" From the above provision, three elements must be proved for the offence of armed robbery to stand; one, that something was stolen, two, a person was armed with dangerous or offensive weapon, three, that person used the weapon to threaten any other person in order to obtain or retain the stolen property. In the matter at hand, PW1 and PW2 did not witness the incident. Only PW3 claimed to have witnessed the incident thus, a reliable witness to prove if her money was stolen by the Appellant and he was armed with dangerous weapon and used the same to threaten her. From the testimony of PW3 the following can be grasped; One, the incident took place at night, two she was not the only person who witnessed the incident, three, she claimed to have identified the Appellant and his fellows by their names and four, exhibit PI was found at the scene. The evidence shows that PW3 was sleeping and was awakened by the noises from the restaurant which was under supervision of her sister Martha Boniface and two brothers, Aloyce Fabian and Mathayo Mbatata. She woke up to enquire on what was happening but she met Martha and Mathayo Page 11 of 17 running to the house. That, Appellant was following them while holding a machete and a torch and she identified him because there was solar light. That, the Appellant followed her in the room searched her and took the money from her trousers which she was wearing. From that evidence, nothing shows that the witness explained if the light inside the room were on. While PW3 claimed that the Appellant was holding a torch, PW1 tendered a solar torch as exhibit. She did not identify if that was the solar torch that was held by the Appellant. She did not even state the intensity of the solar light which she used to identify the Appellant and the place it was positioned or if it the same held by the Appellant. The argument by the Respondent's counsel that PW3 was the eye witness and was able to identify the Appellant for there was enough light, cannot stand because there was no explanation over the size and intensity of the light used to identify the culprits. Again, in her evidence PW3 did not explain how she knew the culprit as Ramadhan Juma thus, the contention that the Appellant was prior known to PW3 in itself does not justify proper identification unless demonstrated that there was clear and unmistaken identification of the culprit at the scene of crime. Page 12 of 17 In her evidence PW3 also claimed that while fleeing from the house, the Appellant met the WEO's security officer outside the house, but the said security officer was not paraded in court to verify such fact. Similarly, those other three people, Martha Boniface, Aloyce Fabian and Mathayo Mbatata who first encountered the bandits at the restaurant were not paraded in court and no reason was advanced. The investigator who investigated the case did not testify in court to explain the investigation process that led to the arrest and charging of the Appellant with the offence of armed robbery. PW2 claimed that he was informed by Joyce Fabiano and Mathayo about the incident and upon arriving at the scene, he found the security guard and the complainant who mentioned the culprits by their names. He did not even explain the state of the scene or verify the evidence by PW3 that one of the bandits broke the window intending to enter into the house. I asked myself as to why those other witnesses were not called to testify in court to verify the complainant's evidence. In the case of Aziz Abdallah v Republic, [1990] TLR 71, the Court of Appeal of Tanzania pointed out that: - "The general and well-known rule is that the prosecutor is under a prima facie duty to call those witnesses who, from their connection with the transaction in question; are able to testify on material facts. Page 13 of 17 I f such witnesses are within reach but are not caiied without sufficient reason being shown; the court may draw an inference adverse to the prosecution." In Alhaji Ayubu @ Msumari and 2 others Vs. Republic, Criminal Appeal No. 136 of 2009 [2010] T7CA 20, the Court of Appeal was faced with akin situation where the arrest of the Appellant and recovery of stolen property was witnessed by more than one witness but only one witness was summoned to testify in court. While discussing the credibility of that single witness, the court subscribed in its decision in Aziz Abdallah (supra) and concluded that those who witnessed the Appellant being arrested were important witnesses to counter the Appellant's defence that he was not arrested in that area. The court drew adverse inference for failure to call those witnesses. The rule on adverse inference was further reiterated in Sungura Athumani v. Republic, Criminal Appeal No. 291 of 2016 (unreported) at page 8 wherein the Court of Appeal stated: - "Speaking o f the rule in adverse inference, it is not quite the obligation o f the prosecution to call a superfluity o f witnesses. On the contrary, the prosecution is expected, as it is, indeed, in the best interests o f justice, for it always be concerned with shortening trials. Thus, where Page 14 of 17 a particular case an incident is deposed by a large number o f witnesses, the non-featuring in court o f some o f the witnesses should not be taken as a cause to disbelieving the prosecution version. Nonetheless, the general and well-known rule is that the prosecution is under a prima facie duty to call those witnesses who from their connection with the transaction in question are within reach but are not called without sufficient reason being shown, the court may draw an inference adverse to the prosecution."[Emphasis added]. In the matter at hand, the Appellant denied being at the scene and apart from PW3 four more people were mentioned to have seen the Appellant at the scene. As earlier pointed out, it was not explained as to why those witnesses were no summoned to testify in court. In fact, there are a lot of unconnected dots which leaves the prosecution evidence hanging and not directly giving a clear picture of what happened at the scene. Turning to the weight of exhibit PI which I said will be discussed, this court is of the view that no evidence connecting the Appellant with the said exhibit. PW1 is the exhibit keeper and was not at the scene but received the machete, knife and solar light from his fellow police officer one Goodluck. Despite the evidence by PW2 and PW3 that the police officer collected them from the scene, the said police officer never testified in court to explain the Page 15 of 17 I circumstance under which he found that exhibit. Therefore, such exhibit cannot stand as a conclusive proof linking the Appellant with the offence. On the argument that the offence was proved for the Appellant failed to cross examine PW3 regarding the stolen money, this court finds that, such failure does not mean that the Appellant admitted to have committed the offence. The rule that failure to cross examine a witness implies acceptance of facts is not absolute. In the case of Kwiga Masa v Samweli Mtubatwa [1989] T.L.R. 103 which was referred with approval in decision of Court of Appeal in Zakaria Jackson Magayo v the Republic, Criminal Appeal No. 411 of 2018 (unreported) it was observed that: - "A failure to cross-examine is merely a consideration to be weighed up with all other factors in the case in deciding the issue o f truthfulness or otherwise o f the challenged evidence. The failure does not necessarily prevent the court from accepting the version o f the omitting part on the point. The witness’s story may be improbable, vague or contradictory that the court would be justified to reject it, notwithstanding the opposite party's failure to challenge it during cross examination. In any case, it may be apparent on the record o f the case, as it is in the instant case, that the opposite party, in omitting to cross examine the witness, was not making a concession that the evidence of the witness was true. "[Emphasis added]. Page 16 of 17 I In considering the above discussion and case laws, I do not agree with the conclusion by the trial magistrate that the offence was proved. As well discussed above, the incident was committed at night and no clear evidence on identification. The evidence of PW3 could not in itself stand to convict the Appellant without being corroborated by other witnesses who were present during the incident. Failure to parade those witnesses which this court considers material to determine the real issue results into drawing of adverse inference against the prosecution side. The prosecution evidence in totality as well as Exhibit PI did not properly link the Appellant with offence of armed robbery. I therefore find that the prosecution failed to prove the case against the Appellant beyond reasonable doubt. I find the appeal to have merits and I allow it. The conviction and sentence meted out against the Appellant are hereby quashed and set aside. I order the Appellant be forthwith set to liberty unless, lawful held. DATED at BABATI this 12th day of August 2024. Y JUDGE x Page 17 of 17