CRIMINAL APPEAL GIRAGURU KITATI

IN THE HIGH COURT OF TANZANIA MUSOMA DISTRICT REGISTRY AT MUSOMA CRIMINAL APPEAL NO. 18559 OF 2024 CASE REFERENCE NO. 202407052000018559 (Arising from Criminal Case No. 25 of2023 of the District Court of Butiama at Butiama) BETWEEN GIRAGURU KITATI................................................................... 1st APPELLANT MWITA JUMA........................................................................... 2nd APPELLANT VERSUS THE REPUBLIC............................................................................RESPONDENT JUDGMENT & 21th August, 2024 M. L KOMBA, J,: Above named appellants were convicted over the offence of armed robbery contrary to section 287A of the Penal Code, [Cap 16 R.E 2019] and sentenced to thirty years imprisonment. In brief, facts of the case g#like this; On the night of 17/01/2020 (00:15 hours) at Kisamwene village area within Butiama district, appellants and another person who is not subject of this appeal went to the house of Minza s/o Kongo (PW1) and they break the door, injured the victim (PW1) and his wife (PW2) who were sleeping and took one subwoofer and TZS Page 1 of 11 230,000/. As per testimony, bandits had machete which was used to injure the victim who was then taken to hospital. At the hospital, victim was treated by PW6, he was admitted and PF3 was filed and tendered in court as Exh. PE 1 showing the victim had wounds in right and left shoulder and at his neck and was admitted. PW2 a wife of victim testified that she saw bandits hit his husband while he falls down outside the house. She managed to saw through a window with the aid of the solar light. She informed her sister in-law what she saw and the whole crime was investigated by PW5. On these accounts, the trial Magistrate was satisfied and convicted both appellants followed with thirty (30) years imprisonment sentence, twelve stroke of cane and each accused to compensate victim TZS 2,000,000/ for injury he sustains. Aggrieved by the said decision, appellants are here searching for justice in way of appeal equipped with nine (9) grounds of appeal which reads as follows; 1. That, the trial Court erred in law, the Court failed to judge's instructions to jury or in the principle applied during the trial, there is misinterpretation of the law related to armed robbery or if critical legal standards were not property applied, (sic) Page 2 of 11 2. That, the trial Court erred in procedural law, during the trial including identification, issues related to the admission of evidence, improper conduct by the prosecution or defense, (sic) 3. That, ineffective assistance of counsel, the appellants did not receive adequate legal representation and was not property informed of their rights and was not properly informed of their right and details of the case by their attorney that is why they could argued that their plea was not made voluntarily, (sic) 4. That, insufficiency of evidence, the trial court the evidence presented was unreliable, contradictory to prove quilt beyond reasonable doubt, (sic) 5. That, the evidence adduced by PW1,PW2, & PW4 were totally fabricated due to the facts that all of them are found at the same place (relatives) and the issue to argue is that all the appellants were present at the scene while the witnesses didn't say anything until they were apprehended, after the witness who is a father of the victim phones to the alarmists to mention the said appellants, (sic) 6. That, the trial Court miscarriage of justice this occurred due to a combination of errors or circumstances that undermined the fairness of the trial/the reliability of conviction, (sic) 7. That, the appellants demands for the new evidence which comes to light that could potentially exonerate the accused or cast doubt on their doubt, (sic) 8. That the trial Court erred in proving the evidence (exhibit) which was stolen such as sabufer which didn't brought before the court, (sic) Page 3 of 11 9. That, the trial Court misinterpretation of laws, relevant laws, regulations In reaching its decision, (sic) When the matter was scheduled for hearing, appellants stood solo without any representation and each prayed this court to adopt their joint petition of appeal while Republic was represented by Ms. Natujwa Bakari, State Attorney. Ms. Natujwa submitted serially on the ground as forwarded by appellants: Starting with the 1st about the misinterpretation she started with clarity that in Tanzania there is no jury at the District Court to provide opinion before decision and went on clarifying that there was no misinterpretation as all ingredients of the offence of armed robbery were found during trial and the Hon Magistrate was right to their conviction. Narrating conditions to be met in offences like the one which convicted appellants she said one; whether there was use of weapon, two; they steal property capable of being stolen and three; they use force before or after stealing. It was State Attorney's submission that trial court was comfortable with PW1 and PW 2 testimony that they knew accused as three of them are neighbours in the same village and they manage to saw and identify them with the aid of light. PW1 and PW2 testified bandits took some property Page 4 of 11 and they had machete. She submitted the three ingredients were found and there is no misinterpretation. Arguing for the 2nd ground State Attorney re iterate her submission on the 1st ground and proceed that all testimony was given as per law and exhibits were admitted as per law. The conduct by prosecution was good. On the 3rd ground it was her submission that there is nowhere appellants applied to engage an advocate and trial court deny. They registered no prayer about representation. Further, about plea when the information was read to them, she firmly submitted that each appellant denied the offence and the matter went to full trial. She prayed the court to find this ground is devoid of merit. About unreliable and contradictory evidence which is found on ground number 4, she submitted that the evidence and testimony manage to prove the offence beyond doubt as there was collaboration on prosecution witnesses no gap left unfilled and re iterate her submission on the 1st ground. On 5th ground appellants complained of fabrication of PW1, PW2 and PW4. Arguing about fabrication of testimony of PW1, PW2 and PW4 Ms. Natujwa Page 5 of 11 was of the position that the testimony of witness is looked at credibility and not the relationship of witnesses and supported her position with the decision in Mustapher Ramadhani Kihiyo vs Republic, TLR 2006 at 323 where the Court ruled that the evidence of relative is credible and insisted that there is no need to disturb evidence of PWl, PW2 and PW4. Fairness of trial was narrated at 6th ground and the State Attorney submitted that the matter was handled as per law, there was no infringement of the right of whatsoever. Respondent resisted the prayer listed at the 7th ground claiming that evidence adduced during trial were enough to prove the offence. Attacking the 8th ground about exhibits during trial she submitted that witnesses explained the subwoofer was stolen and it was not recovered. She went on insisting failure to recover/tender it does not mean that the offence was not committed. She insisted the offence was committed as per available testimony. Lastly, she said that the trial court was guided by the law and interpretation of the law was perfect and urge this court to find this ground has no merit. In general, respondent prayed this court to find the appeal has no merit. Page 6 of 11 While rejoining the 1st appellant submitted that there was no alarm and even street chairman was not consulted to prove that there was a crime in his street. He complained of non-tendering of exhibit to prove stealing, she prayed the appeal to be found with merit. The second appellant insisted that witnesses were relatives and no exhibit tendered to prove the that there was armed robbery and prayed the appeal to be found with merit. I have serenely considered the rival arguments by the parties to this appeal in the light of the petition of appeal, the grounds of appeal as well as the substance of the oral submissions in the hearing of the appeal. I am now in a position to confront this appeal for determination as appearing in the grounds of appeal raised and in doing so, I will join all grounds of appeal and come up with one ground on whether prosecution managed to prove the offence beyond reasonable doubt. At the outset, let it be known that in criminal cases, it is upon the prosecution to prove its case against an accused person as provided in section 3(2)(a) of the Evidence Act, CAP 6. This being a criminal case, the standard is beyond reasonable doubts. See Festo Komba vs Republic, Criminal Appeal No. 77 of 2015, Court of Appeal of Tanzania. Page 7 of 11 Appellants complained that PW1, PW2 and PW4 are relatives and discredit the testimony adduced by them. As rightly submitted by State Attorney, all witness are credible and evidence of near relatives is credible as was held in Mustafa Ramadhani Kihiyo vs Republic (Supra) that; 'There is no rule of law or practice which permits the evidence of near relatives to be discounted because of their relationship to an accused person.' As indicated earlier, the appellant was charged with the offence of armed robbery. The section reads as follows; Section 287 A of the Penal Code provides; '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 stolen property, commits an offence of armed robbery and shall, on conviction be liable to imprisonment for a term of not less than thirty years with or without corporal punishment.' In cases of these nature, the duty of prosecution has been mentioned in various Courts decision one of them is Shaban Said Ally vs. Republic, Criminal Appeal No. 270/2018 where key elements to be proved were elaborated to be one; Theft, that property was taken, two; the- use of Page 8 of 11 dangerous weapon immediately before or after commission of offence and three; the use of weapon must be directed to the victim. Reading prosecution testimony (all reference is based on typed proceedings) there is no proof that subwoofer do exist and it was the property of the victim. Prosecution tendered no receipt to prove there was a subwoofer in the house of the victim or rather, the victim owned subwoofer. Further it is not clear how PW2 know that she gave TZS 230,000/ to the bandits as she was under pressure and there was no explanation where those moneys were kept before the attack. This element that there was a property taken was not proved to the required standard. Further, after a thorough reading the trial court proceedings, I find variance and contradictions on prosecution witnesses. First, about the bandits, PW1 informed the trial court at page 11 that he saw people inside his room and hit one of them so that he can run outside without mentioning them but PW3 at page 18 testified that PW1 informed PW3 he saw five people and managed to identify three of them and mentioned their names. That being not enough, PW5 testified at page 33 that a victim was robbed with unknown people. Page 9 of 11 Another variance found is on source of light. PW1 and PW2 testified that there was solar light outside their house as seen at pages 12 and 15 respectively. PW2 saw through the window what was going on outside their house as there was a light and she manages to identify three bandits from the window. To the contrary, PW5 testified that PW2 managed to saw bandits by the aid of light which was inside and insisted that there was no light outside the victim house. See page 33 of the typed proceedings. I find this contradiction major as it goes to the root of the case, who robbed the victim and how the identification was done. An eye witness confessed to see through the window as there was light outside and the investigator of the case insisted there was no light so the identification was not proved. It is settled in our legal regime that doubts are to be resolved in favour of the accused persons. There is a lot of precedents insisting on the subject (see: Enock Kipela vs Republic, Criminal Appeal No. 150 of 1994; Chacha Ng'era vs The Republic, Criminal Appeal No. 87 Of 2010 (July 2013); Mohamed Said Matula vs Republic [1995]; Aidan Mwalulenga vs Republic, Criminal Appeal No. 207 of 2006; Wilfred Lukago vs Republic (1994) TLR 198, Mikael Aishi vs Republic (1992) Page 10 of 11 TLR 92 and Marwa Joseph @ Muhere & Another vs Republic, Criminal Appeal Case No. 96 of 2021. Consequently, I find the prosecution case, was not proved to the required standard and the appeal have merit, that is to say the appeal is allowed, the conviction is hereby quashed and sentence set aside. The appellants to be removed from custody unless otherwise held for other lawful purposes. DATED at MUSOMA this 19th day of August, 2024. Sgd: M. L. KO MBA JUDGE Judgement delivered in chamber in the presence of the appellants and Ms. Natujwa Bakari, State Attorney for respondent. S. A. Mshasha DR 21st August, 2024 Page 11 of 11