omary vs republic

IN THE COURT OF APPEAL OF TANZANIA AT TANGA fCORAM: KILEO. J. A.. MASSATI. 3. A. And MANDIA. J. A.^ CRIMINAL APPEAL NO 38 OF 2012 OMARI MRISHO..............................................APPELLANT VERSUS THE REPUBLIC............................................. RESPONDENT (Appeal from the Judgment of the High Court of Tanzania atTanga) (Mussa. J.1 dated 30th day of September, 2011 in Criminal Appeal No. 13 of 2010 JUDGMENT OF THE COURT 30th& Sl^July, 2013 MASSATI. J.A.: The appellant and two others who were acquitted by the lower court were charged with armed robbery in the District Court of Handeni. He, alone, was convictedof the lesser offence of breaking into a building and committing an offence. He was sentenced- to 15 years imprisonment. The High Court at Tanga dismissed his appeal. He has come to this Court for a second appeal. According to the prosecution, on the 10th April, 2009 at about 2.00hrs at Mzundu Village in Handeni District the residence of RASHIDI HASSANI, l PW1 was invaded by thugs who attacked the complainant; and stole from there the sum of shs. 300,000/= and while the others vanished in thin air, the appellant was apprehended at the scene of the crime. A firearm was used to facilitate the robbery. PW1 was taken to hospital for treatment, and later the appellant was taken to the police together with the gun and a piece of iron bar. Apart from PW1, the prosecution case was supported by PW2, PW l's wife and PW3 the Ward Executive Officer of the locality where the incident was first reported and who took the appellant's statement Exh. PE 2. This statement was expunged by the High Court on first appeal. In his sworn testimony the appellant protested his innocence and denied giving any statement to PW3. After hearing both sides, the trial court believed that the prosecution case was proved beyond reasonable doubt and convictedhim of the charge aforesaid; which was confirmed by the High Court, amidst some reservations. The appellant still believes in his innocence and has lodged the present appeal. At the hearing of the appeal, the appellant appeared in person and adopted his 4 ground memorandum of appeal and written submission. In the first ground, the complaint is that the investigator was not called as a 2 witness, who would have corroborated the testimonies of PW1 and PW2. In the second ground, the appellant is taking issue with the fact of non productions court of the weapons used in the alleged robbery, as exhibits, as denting the prosecution witnesses' credibility. The third complaint is that as no neighbours were called to testify, the credibility of PW1 is further dented He cited the case of ABDALLAH WENDO V R. (1958)_20 EACA / — ■" ■ ................... .................. ■■ 166, to support his argument. In the last ground, the appellant complained that his defence was not considered. For those reasons, the appellant urged us to allow the appeal. Mr. MsenelyMfinanga, and Mr. Omar Kibwana, learned State Attorneys represented the respondent/Republic. It was Mr. Mfinanga who argued the appeal. He declined to support the conviction on the ground that the case was not proved beyond reasonable doubt, considering the contradictory testimonies within and between PW1, PW2 and PW3; and failure by the two courts to consider the defence case; which if considered would not have placed him at the scene of crime. He therefore urged us to allow the appeal. We have passionately studied the evidence on record, the grounds of appeal and the submissions of the parties. On the first ground, the complaint is that although the offence was reported and investigated by the police, the investigator was not called to testify. The law is now settled that, in terms of section 143 of the Evidence Act Cap 6 R.E 2002, no particular number of witnesses is required, although in certain circumstances, an adverse inference may be drawn g a in s t the prosecution if, for no reasonable explanation, an essential witness in a case, who is available, is not called to testify (See AZIZ ABDALLAH V REPUBLIC (1991) TLR 71. In the present case the prosecution alleges that the appellant was arrested at the victims' house, taken to PW3, and later to the police with a gun and a piece of iron bar. But the appellant in his defence said that he was arrested at the bus stand and taken to the WEO before proceeding to the police. Later he was charged with the theft of a bicycle in Criminal Case No. 88 of 2005, which was later withdrawn, and instead, charged with the offence with which he was convicted. The existence of Criminal Case No. 88 of 2009 was not challenged. What happened to the gun and club which were seized/found with the appellant remains a mystery. If the appellant was caught red handed in PW l's house, why was he first charged with stealing a bicycle, and why not with the offence of armed robbery immediately? The charge sheet shows that the offence was committed on 10th April, 2009 but the 4 appellant, first appeared in court on 27/5/2009. Why did it have to take 6 weeks to arraign the appellant on that charge?. Those and other questions could only be competently explained by the investigator. Absence of answers to those questions, in our view, creates a lot of reasonable doubts to the prosecutim case. We therefore agree with the appellant, that in the present case the absence of the investigator, was a big blow to the prosecution case. An adverse inference ought to have been drawn against it, In the second ground, the appellant is complaining that the weapons of the attack namely, the pistol and the iron bar allegedly used in the robbery were not produced in evidence. The learned State Attorney referred us to section 62 of the Evidence Act and submitted that as a matter of prudence, those weapons should have been produced in evidence to lend credence to the prosecution case. We agree. Although under section 61 of the Evidence Act, all evidence, except the contents of documents may be proved by oral evidence, the non production of a thing, used in the commission of a crime, or the subject matter of the complaint, affects the weightof that oral evidence. That is why under section 62(2) of the Evidence Act, it is advisable for such 5 articles to be produced in evidence. So, although PW1 and PW2 orally testified as to the occurrence of the robbery with a firearm, the production of those weapons, allegedly found with the appellant would have lent credence to the testimonies of PW1, PW2 and PW3. Their non-production also cries out louder in the absence of .a police officer, who allegedly received them at the police station. The essence of the third ground is the effect of non calling of any neighbour as witnesses to corroborate that the appellant was arrested by PW1. Mr. Mfinanga, tackled this ground together with the question of credibility of all the prosecution witnesses. It was his view that in view of the glaring contradictions between PW1, PW2 and PW3, there was need to call another witness, who would have lent support to that story. We agree with Mr. Mfinanga.If the appellant was arrested at the scene, and PW1 said he was hurt and taken to hospital, while PW2 said she did not go to escort the appellant, and PW3 claimed he was brought by neighbours, the question is, who sent him to PW3? We think that this was a material discrepancy which could only be solved by one of the neighbours, who allegedly took him there. In the absence of such evidence, the appellant's defence that he was arrested at the bus stand sail#taken to a WEO could not be ignored. * In his ultimate ground, the appellant has argued that the lower f&ourts did not consider his defence, which was, that of an alibi; that he ^ as arrested at the Mzundu bus Stand on 9/4/2009. It is undoubtedly now settled law that failure to consider defence evidence is a serious misdirection. (See HUSSEIN IDDI & ANOTHER V. REPUBLIC (1986) T.L.R. 166.REUBEN MHANGWA AND KIJA V. REPUBLIC, Criminal Appeal No. 99 of 2007 (unreported) It is also a cardinal principle that where an accused person relies on the defence of alibi he does not thereby assume any burden of proof to prove it. All that he has to do is to create a reasonable doubt as to the strength of the prosecution case (See, KENNEDY OWINO ONYIACHI AND OTHERS V REPUBLIC Criminal Appeal No. 28 of 2006 (unreported). In the present case, it is true that the trial court did not even cast a glance at the appellant's alibi. The first appellate court only referred to the narration of the facts. There was no analysis on why the defence was rejected. As we said, earlier, this was a seriousmisdirections and could lead to a miscarriage of justice. We are alive to the fact that this is a second appeal. In ordinary circumstances, we would be loathe to interfere with the concurrent findings of facts of the lower courts. But this presupposes that there are no misdirections or non directions, on the evidence. Where, there are such misdirections or non directions this Court is entitled to look at the relevant evidence and make its own findings (See SALUM MHANDO V REPUBLIC (1993) TLR 170, EDWIN ISDORI ELIAS V SERI KALI YA MAPINDUZI f ZANZIBAR (2004) TLR 297. Having given due consideration to all the evidence on record, we are settled in our minds that the lower courts misdirected themselves on the credibility of the prosecution witnesses, and in failing to consider the defence case. In our reevaluation, we find that the credibility of PW1, PW3 and PW3 is wanting, and if the appellant's defencewould have been ^considered it should have been found that it did raise a reasonable doubt on the prosecution case. To that extent, it was a misdirection for the lower courts to have found that the prosecution case was proved to the requisite standard. It was not. For all the above reasons, we think that the conviction of the appellant is not safe. We accordingly allow the appeal, quash the conviction and set aside the sentence. We order that the appellant be released forthwith, if not otherwise lawfully held. DATED at TANGA this Sl^day of July, 2013. E. A. KILEO JUSTICE OF APPEAL S. A. MASSATI JUSTICE OF APPEAL W. S. MANDIA JUSTICE OF APPEAL I Certify that this is a true copy of the original. Z.A. Maruma DEPUTY REGISTRAR COURT OF APPEAL