Maxson John 2

THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO SUB-REGISTRY) AT MOROGORO CRIMINAL APPEAL NO. 17305 OF 2024 (Originated from the Judgement ofResident Magistrate's Court ofMorogoro at Morogoro in Criminal Case No. 36/2021, dated on 14^ June, 2024) MAXSON JOHN @ MACK APPELLANT VERSUS THE REPUBLIC RESPONDENT Date of Last Order; 18/11/2024 Date of Judgement; 06/12/2024 JUDGEMENT MAGOIGA,J. The appellant, MAXSON JOHN @ MACK was arraigned before the Resident Magistrate Court of Morogoro (the trial court) for one count of armed robbery contrary to Section 287A of the Penal Code, [Cap. 16, R.E. 2019]. According to the charge sheet, it was alleged that on the 0/'^ day of February 2021 at Daraja la Kidogpbasi area, Ruhembe Ward, Mikumi Division within vKilosa District in Morogoro Region, the appellant stole one mobile phone made TECNO K7 worth Tzs.250,0p0/= and cash Tzs.40,000/= all valued at Tzs.290,000/= the property of FADHIL ALLY and immediately Page 1 of 17 before such stealing, the appellant threatened the said FADHIL ALLY with knife to obtain and retain the said properties. The appellant denied invoivement allegations to the charge. And the prosecution in proof of the case against thie:appellant called three witnesses. At the end of the trial, the trial court found the accused guilty of the offence charged and consequently convicted him as charged and sentenced him to serve thirty (30) years imprisonment. Aggrieved with conviction^and sentence, the appeilant preferred the instant appeal faulting the trial court's conviction and sentence equipped with nine grounds of appeal couched in the following language: - • That the learnedSRM erredJn law and factto convict and sentence the appellant while prosecutionxside failed to prove that the offence of X \(af^ comniltted by the appellant; 2. That the learned SRM grossly erreddn law and fact to convict the appellant basing on the evidence ofPy\/1 withoutgiving an opportuplty x: to the appellant to cross examlnedxPWl(the cornplalnant) which Is against procedure oflaws as no Indication that the appeHent waived that right as shown In page 10 and 11 respectively on the typed proceedings; rfp/; Page 2 of 17 3. That the learned SRM erred in law and fact to convict the appellant based on contradictory prosecution evidence; 4. That the learned SRM erred in iaw and fact to convict and sentence the appellant as he failed to consider appellants defence that there was a conflict between the complainant PWl and the appellant and the appellant was found fighting and not the appellant robbing PWl, as evidenced by the testimony ofPW2 who said in his testimony he saw two people fighting atpages 11 ofthe typed proceedings; 5. That the learned SRM erred in iaw and fact to convictpe appellant when failed to realize thatPWl knew each other before incidentand no other independent witness called to testify while it was alleged the scene was crowded by people who wanted to kill the appellant; 6. That the learned SRM erred in iaw and fact when there is no factual or legal point of determination in accordance with mandatory section 312(1)ofthe Criminal Procedure Act[Cap 20 R.E.2022]; 7. That the learned SRM erred in iaw and fact convicting the appeiiant doubt; 8. That the learned SRM erred in iawandfactto convict and sentence the appeiiant on offence ofarmed robbery as the appeiiant vyas notfound Page 3 of 17 with anything that connects him with the offence aiieged to be committed i.e nothing was tendered in court as exhibit phone, money nor weapon as the appeiiant did notieave the scene ofcrime; 9. That the iearned SRM erred in iaw and fact to convict the appeiiant whiie prosecution case was notproved to the hiit On the strength of the grounds of appeal, the appellant prayed that this Court be pleased to allow his appeal, by quashing aside the judgement,^ of trial court, set aside conviction and sentence of the trial court, and set him free. When this appeal was called on forr;hearing, the appellant appeared in person and unrepresented. On the other hand, the respondent. Republic was represented by Ms. Monica Matwe, learned State Attorney. Both parties were ready for hearing but the appellant prayed for the Republic to start, then, he will reply. There was no objection for the learned State Attorney to start as prayed and the hearing was conducted viva voce. Ms. Matwe, readily told thei court that he resists this appeal. Arguing the first and ninth grounds of appeal jointly, the learned State Attorney argued that these two grounds are baseless because, under section 287A of the Penal Code, is clear to prove robbery; there must be proof that there ■ Page 4 of 17 was theft and use of a weapon to threaten the victim. Ms. Matwe pointed out that in this appeal, PWl, who was the victim, showed and proved all these ingredients by telling the court that he was robbed of a phone and money from his pocket and he was beaten by using a bush knife. In her view, the offence was proved; hence,the two grounds of appeal are baseless and urged this court to dismiss them. Arguing the second ground of appeal, Ms. Matwe briefly told the court that the original trial court proceedings showed the appellant was given the chance to cross-examine PWl vyhich he; utilized and urged this court tp dismiss this ground for want of rnerits. - Arguing the third ground l Of appeai,:;which on contfadictionsr by prosecution witnesses, the learned State Attorney told the court that, this ground is baseless because the,said contradictions, if any,: were minor cgntradictions and did not go tp jhe motjpf;:the matter.^ Matwe, the contradictions was tl;)at the victim at poHce station said he was beaten by the knife while in court said he was beaten by a bush knife. On that note urged this court to disrpiss this ground of appeal. , Arguing the fourth and seyppth grounds of apppaljoindy,: Ms. Matw^ argued that these two grounds' complaints were that the defence evidence ;.■)Page;5.ofl7- r:; ■; , : ' were not considered but according to her, at page 5 of the judgements /.); • defence testimony were considered and concluded to be an afterthought. > v The learned Attorney pointed out that the appellant's complaints on these two grounds are unfounded and not suppprted by evidence on record. | To - cement her argument, the learned Attorney cited the case of John Dickson Ngongole vs. Republic, Criminal Appeal No. 477 of 2021 at Dodoma ■ <1^' at page 8 It was held that: - ''Failure to cross-examine the witness on important matters ordinariiy implies acceptance ofits truth Arguing the fifth ground of,the appeal whose complaint was that PWl and PWZ are people who know qach other and there was no Indepepdent witness to support their story. Ms. Matwe argued that this ground Is baseless because It Is not a legal requirement that where witnesses are familiar with r each other, the court not consider their evidence. The learned Attorney V referred this court section 127(1) of the Evidence Act [Cap. 6 R.E.2022] which allows any competent person to test[^ In court unless that perspn,,has , no such capacity. On that note, she invited this court to dismiss this ground as well. ^ , Arguing the sixth ground^pf appeal, which Is jfs conriplalnt Is that section 312(1) of the CPA was npt compiled with, the learned State Attorney Page 6 of 17 . ■ ■, ^ 1): .!e Ac. ; jlj.- ■ . • ' ' •; • ■ ■■ ■; ; ,■ - ■ j '■ '' • \' argued that this point is not true because the provision was fully observed by the trial Magistrate, and the legal issue was written at page 3 when he asked whether the prosecution proved their case. And the last ground is the eighth grpund, whose complaint is that the appellant was not found with any exhibit connecting him with the offence charged. Ms. Matwe argued that this is not a legal requirement that to prove the offence armed robbery the alleged exhib|it must be tend Attorney pointed out that the exhibits were ppt pollected, as the fnends of the appellant disappeared w'th thp exhihits.To cement her point on failure to tender exhibits that is not a legal requirement cited the case of Mashaka Juma @ Ntatula vs Republic (Criminal Appeal 140 of ?022)[?P22] TZCA 506(15 August 2022)Tanzlii, JZCA at Shinyanga at page 20, in which it was held that: - 'It is our considered view that faiiure to tender those o^ects did nqf render or did not mean that the witnesses who testified on ?uch exhibits were not credibie". On the foregoing reasons, Ms. Matwe humbly invited this court to find this appeal devoid of any useful merits and, in strong terms, urged this court Page 7 of17 to dismissed this appeai in its entirety and upheld the conviction and sentence imposed on the accused person by the trial court. In response, the Appeilant prayed the court to consider his grounds of appeal and set him free. Generaliy, the appellant argued that he didn't commit the offence and the Republic failed to prove their case as PWl testified that he was beaten with the bush knife, but at the police station, he said he was threatened with a knife. According to the appellant, this was g serious contradiction and goes to the root of the matter because the evidence used differs materially from the charge sheet. The appellant argued further that the trial magistrate misdireqte^^^^^ himself on cross-examination. He stated that PW2 said he saw a fight and nothing more and PWl said the first perspn to come, came with a bicycje^ ^ but in court, he said he was with a. motorcyple^ , , .b / > ^ The appellant argued that the investigatormeyer game to tpstify iDa^eg ■ on what he was toid by PWl and ,PW2. He'^ateci that no theft was proved at all. The appellant further statpd^that RVy2 did not see the biush kni^ npr anything to connect him with the offence.. ^ ; a .The appellant went on arguing that he was taken to the^police;but he ^ was not found with anything. He argued that the bush knife was not ■ %ge 8 oflVV/■■ tendered and that PWl was a liar. Further on PWl pointed out that if PWl was beaten by bush knife or knife but was not given PF3 if at aii was attacked as he testified, so the whoie case is cooked to siience him and PW2 said he knew PWl, but no other witness who carne to testify. The appeilant stated that it was not true that his defence was an afterthought at all and all that happened were true. He ended by stating that ' the case was not investigated, as,admitted,by PW3, hence, prayed his appeal be allowed and set him free. n. c i ^ / ^, This marked the end of hearing if thj? hotly contested gppeai bef^een the appellant and the learned State Attorney. The noble task of this court now is to determine the merits or demerits of this appeai in the light of evidence on record. I wjil start w^^t^^ second ground of appeai in my determination of this appeai, after which wiij deal the first and nineths grounds of appeai argued jointiy and the rest wili - r; :;; -Vi V. foliow suit. . .. With regard to the second ground of appeal, the appellant is compiaining about not having been allowed to cross-examine the respondent's Witness (PWl). The iearne^ State Attorney had different view that the appeliant was given that chance and utilized properiy^ . ■ Page 9 of 17 ' )nf,. ,, 'u . -: ■■ f; -i ! r 'VUU ;S ■ ■ ryart^ Having heard the rivaling arguments and having revisited the trial Court record, in particular, the original handwritten record, I find that this = ^^ ground is baseless because as correctly argued by the learned State Attorney, the appellant was availed with the opportunity to cross examined PWl and he accordingly cross examined PWl. With that note and without much ado, the second ground is found wanting in merits and is hereby dismissed. ,; r r ' drSC;:!: "; h'H)'- ■ V'.' ^ v; T' i'!;!" r f i" ■ On the second and nineth grounds of appeal, the appellant claimed that he was convicted and sentenced whije the prosecution failed to provp their case beyond reasonable doubt. Having keenly followed the trial court proceedings, I have observed that PWl, known as Fadhil Ally Majaaba, who . was the victim, stated that the dgte of the crime was on 07^^ February 2021 around 20:00 hrs he was riding his bicycle back to his home while talking on a phone. PWl stated that when he arrived at Ilovu sugarcpne farrns, a ? . J rnotorcyde with three people drove close to him; two of then^ pttpcked^^ N while one took his phone, a Tecno K7 valued at T?s 250,000/=, and the other took his money Tzs.40,000/- from his pocket. PWl stated further that r one of them robbed him while the other beat him by using a bush knife. PWl, testified that when the robbers ran way, he managed to hpid the / - . Page 10 of 17 n rvi' ..ircar^;- it • sai-:; ;. ^ a:ova iani: a-'.; c- aa:■ 'vaa r-a- a' appellant, and with the assistance of other people, they arrested him and was taken at Ruhembe Police Station. Nevertheless, PW2, known as Hassan Selestina Mwangwa, testified that on February 2021, around 20:00 hrs, he was riding his motorcycle heading to Ruaha. When he arrived at a certain sugarcane farm, he saw two people fighting and the motorcycle running away after they saw him. PW2 stated, that one of the fighting people was Fadhili Ally, whom he knevy personally, and he told him that the persons robbed him and took his phone and money. PW2 stated further that he took the appellant on his motorcycle with PWl up to Ruhembe Police Station. According to the evidence adduced by PWl, who is the victim, and PW2, who was the observer, it is enpugh to determine whether the prosecution proved their case or not. Based on PWl's and PW2's evidence above, no one testified that the afDpellant was the only person who tqok a phpne and moriey or the one who threatened PVyi with a bush knife. However, the charge presented before the trial court shows that the appellant was the only person who cpmmjtted fhe offence. In the evidence of PWl, novyhere shown at the trial court, he identified the appellant as being the one who had robbed him; instead, he was only talking about three people without saying that the one (appellant)^ standing Page 11 of 17 u M - N 1: in the dock was the said accused. Therefore, for PWl (the victim) to give evidence without identifying the accused (appellant) before the court that he had committed an offence is sufficient to vitiate the proceedings. Therefore, I find these two ground^ of appeal merited that the case for prosecution was not proved. I would have ended here and allow the appeal by setting the appeilant free. But for the interest of justice I will aiso cleterniine ground purnber three,,.; vh I; fo a: ^ 0: Next is the third ground of;appeal whose main complaint was that the trial Magistrate failure to note thei contradictions which were that PWl said whiie being robbed was beaten by bush,knjfe and in court said was beatep by knife. The appellant in .raisipg doubtS: to the testiimony ,o|;jPWl.arg that PWl is a liar and queried.thpt jf tmjy u^ng busl^jjknifie vyhy was he not given a PF3 for treatment. On this he invited this court to find that his testimony is unreliable and now worth of believe and as such worth of any evidential vaiue. .j v i ^ On the other hand, the learned Attorney acceded that jt is true, PWl told the police that he was attacked by bush knife and when testifying under oath changed the story to knife. Accprding to the learned State Attorney, the 5 Page 12 of 17;; : ; ■17. • ■^7 contradictions did not go to the root of the matter and invited this court to consider them minor that did not fetter the prosecution case. I have taken my time to go through the testimony of PWl and his statement he gave to police, truly PWl had different versions of how he was attacked by the appellant using the said weapon. Immediately, when he was attacked on 07-02-2021 recorded his statement and told the police the other two people who escaped had knives but the appellant had nothing. But under oath in the trial court, PWl told the court that the appellant had bush knife and when he pulled him and started fighting the bush knife fell dropped from the appellant. PWl went telling the court that he managed to held him until he got help from PW2. Another point was that on that very fateful day he told the police that PW2 came with the bi^cie and ^ appellant and took him to police. These pieces of evidence were the cry of the appellant that were contradictory and goes to the root of the matter. , , On the other hand, the learned State Attorney was of the different view regarding these contradictions that are minor and did not go to the root of the matter and should be disregarded. ^ ^ , , Having carefully taken my time, to read the testimony of PWl in court alongside his statement he recorded at police, I have no doubt that th^ contradictions are not minor as suggested by the learned Attorney. I will Page 13 of 17 ,<7jpK ■::-SuppK:';lfcd ^ :JV ■ P;.f- explain: One, If I take the statement, he wrote at police to be true, then, the appellant had no weapon. But if I take his testimony to be true, the appellant had a bush knife which dropped down and was not taken. The immediate question is why was the bush knife not taken together with the appellant to police. Two,the testimony of PWl was that he was attacked by his assailants using knives or bush knives but what happened he never went to hospital and never testified that he was injured or not. With these cumulative pot holes to the prosecution cjase, I find that the testimony of PWl was full of contradictions vyhich went to the root of the matter. The argument by the learned Attorney that sanrie (^Id not go to root of the matter is but far from convincing me to hold otherwise. Not only that but I have as well considered the testimony of PW3 who testified that the appellant confessed to have committed the offence in issue but nowhere, PW3 testified asking him mention the other friends that partook in the commission of the crime. Reasonably, one wouid expect PW3 to ask the appellant with whom were you with. This is yet another pot holes in the prosecution case that proyes that this armed robbery case was not investigated at all. , ^ ^ . .v I have as well considered the defence of the accused person that the fight that was between PWl and the appellant witnessed by PW2 was due Page 14 of 17 1? ' :' ■ y- : r'y: to a girl called Ester. I have as well noted that In his statement at police, PWl said the people alleged to have attacked him said ^'kumbe ni mchumba tu hawezi kutushinda." PWl never explained that expression and In my considered opinion, It highly reMes to what the appellant told the court that the source of fight was Ester. Had this case been well Investigated It could have revealed a lot but much as no Investigation was done and the no Investigator came to testify. It seems. In my view, the whole case was not Inyqstlgated and prosecution was left to the vyhlms of PWl. The purpose of investigation Is to reveal the truthjness or liss of any, pllsgatlgn^^^^ not done at all. ^ ^ r ^ Another disturbing feature .in this appeal Is that the appellant ^ : srr^sted on the fateful date of the Jncldencp^ (7/d^ but withouyn);, explanation was arraigned In court 03'"'^. day of March, 2021 without any explanation this being unballable o^ence.oT^^ doubt to prosecution case It inoeeQ tne appeiiani cpriuniLLeu lmc yucin-p ui ann^w i as It Is or another offence but found himself In this unballable offence. In the case of Shija Ngasa Vs. Itepubjic, Criiriiiw^ No. 173 ^ 2022^ [2024]TZCA at Tanzlii, at page 8 of the judgement,jt was held,that: - Page 15 of 17 •/•m V'.-- •: •! I. i "in the absence of any explanation concerning the delay, we draw an inference adverse to the prosecution which creates doubts on their case." The same concerns were observed y^t in another case of Laurent Rajabu Vs. Republic, Criminal Appeal No. 270 of 2012, CAT at Tanzlii, in which it was observed that: - "such a delay in charging the appellant not withm re^^n^^ time is a serious and fatal emission on^^^^ ^ prosecution' case leading to watering-down the credence of th^ircase." • On that note and guidance, I find the testimony of PWl stili with so mucl^ to be desired and which desire has to be resoiyecl in favour o^^^^ accuse person. I find merits in the and 9^"^ grounds of appeal arid are hereby allowed for the foregoing reasons.^ , .... .iWjth the above findings, I find that the case for prosecution was not proved and with the findings in this ground, it goes without much ado that even grounds of appeal numbers three^ sey^ii pndi nine are rpprited and^ equally allowed in this appeal, (je: ; . ;-u:V- u n: r ;i J : ■ Page 16 of 17 ; Consequently,the appellant's conviction is quashed and sentence meted out against the appeilant is set aside. I, thus, order immediate release of the appellant from prison unless otherwise iawfully cause. It is so ordered. Dated at Morogoro this 06^*^ day e ber 2024. cO 4- r" :c Dh 0-h-ril ! •'".ir; C •V*ir X "43 ."MAGQIGA JUDGE 06M2/2024h 3 COURT:Judgement delivered in the presence of the appellant in person and unrepresented and in the presence of Ms. Margreth Lyimo, iearned State Attorney for Morogoro. Co -f. LU ■vv X ■*A r m s IGA 06/12/2024 COURT: Right of appeal fully explained^ 'i (h r::,! : i ' XA'- . , . .1 , C S. M. MAGOIGA UJ W JUDGE X 06/12/2024 fm ; ' '• •I'T . Ss f'il. • • -•!' -i ' -■■(.i >■ ■!' ■ '' j, ; ':