NA TZCA Mwanza

I I I I IN THE COURT OF APPEAL OF TANZANIA AT MWANZA I . . I, . (CORAM: RUTAKANGWA, J.A., MJASIRI, J.A., And MASSATI, l.A.) ·CRIMINAL APPEALS NO 137 & 138 OF 2007 1. MNIKO IRANDA@ MWITA MNIKO } 2. DANIEL MWITA@ SAMWEL~ MNANKA .......... APPELLANTS I VE~SUS THE REPUBLIC ......................... ~ ............................ RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mwanza) , (sufflari, J.) dated the 14th day of March, 2007 in / ___ i___ _ Criminal Appeals No. 46 and 47 of'2004 JUDGMENTOFTHE COURT 15 & 23 FEBRUARY, 2011 i RUTAKANGWA, l.A.: ! I I i . , I . Aggrieved by the conviction f~r Attempted Armed Robbery c/s 287 !· ; (2) of the Penal Code, Cap. 16, R.E.: 2002, by the District Court of Tarime, ' • , I • the two appellants unsuccessfully appealed to the High Court. i 1 I I ! ' j! I l "- , I_ ' .; : •,~ , ·,) ', In dismissing their appeals, the High Court, sitting at Mwanza held:- " There is ample evidence by PWl, PW2, PW4, PWS and PW6 that the appellants burst into the house of PW2 while armed with a sword (panga) and club (rungu) with intent to commit an offence therein and that they demanded money from PW4. They were identified by their faces and attire by PW2, PW4, PWS and PW6 and by description as to which weapon each carried. Therefore, the appellants' complaint that there was no evidence to the fact that they were armed at the scene of the crime has no merit at all. It is only that it is too bad for them that they were intercepted Just short of accomplishing their intention. In that respect I fully agree with the learned State Attorney that the offence of attempted armed robbery was proved to the standard required by the law. " 2 j.. i The appellants were aggrieved by this holding and have come to this Court with basically the same complaint. This is that the learned first appellate judge erred in fact and law in finding the purported visual identification evidence of PW2, PW4, PWS and PW6 placed them at the scene of the crime on the night of 29th April, 2004, and as such they attempted to rob "one Faustine H. Matiku of Tsh.200,000/-." They are accordingly urging us to quash their conviction and prison sentence and set them at liberty. Each appellant, it must be pointed out at the outset, lodged his own appeal. However, both were consolidated and heard together. The respondent Republic was represented before us by Ms Jacqueline Mrema, learned State Attorney, who did not support the conviction of the appellants. Her assigned reason for declining to support the conviction was that it was predicated on very weak dock identification evidence which was also implausible. 3 t It is now incumbent upon us to look at the alleged facts which compelled the learned first appellate judge to hold that the appellants' guilt on the preferred charge was proved to the hilt. As is evident from the above extract from the judgment of the High Court, the prosecution case rested on the evidence of PW1 Juma Zakaria, PW2 Faustine Hamis, PW3 No. E 9022, D/Cpl. Gilihonda, PW4 Perpetua Hamisi, PWS No. D 4313 D/C. Johannes and PW6 No. 8016 D/Sgt. Makole. It was PW1 Juma, who set the ball in motion. PW1 Juma claimed before the trial District court that on 2ih April, 2003, at about 15.00 hrs while at the local pombe club of one Richard imbibing "mbege', three people entered and sat near him. Two of them were allegedly known to him and he said they were the two appellants. He then overheard them talking about committing a robbery· at the home of PW2 Faustine the following day. On 28/04/2003 at 10.00 hrs he reported to PW2 Faustine what he had heard the previous day. While making this report, PW1 Juma never gave the names nor the physical description of the 4 - would be robbers to PW2 Faustine although the two were well known to him. PW2 Faustine, kept this information back from anybody. On the same day, while PW2 Faustine was at home with his wife at around 21.00 hrs, they heard people talking outside their house. In their talk, they were disputing amongst themselves as to whether they had correctly identified their target, i.e. the home of PW2 Faustine. When the talking outside ceased, PW2 Faustine and his wife, (PW4 Perpetua) unperturbed by what they had heard, proceeded to sleep. It was on 29th April, 2003 at 10.00 hrs, that he claimed to have reported the matter at the Tarime Police Station. PW3 D/Cpl. Gilihonda was assigned to investigate the matter by the O/C CID. On his part, PW3 D/Cpl. Gilihonda allegedly detailed three unidentified policemen to lay a trap and catch the bandits red-handed. But on this he was belied by PWS D/C Johanness who testified that he was assigned that task together with PW6 D/Sgt. Makole and one D/C. Ditram by the Tarime O.C-CID. on the evening of 29/04/2003. Be it as it 5 may, the three policemen proceeded t<;> the home of PW2 Faustine, to carry out the assignment, although PW3 D/Cpl. Gilihonda, the investigator, unequivocally told the trial court that "the exact date was yet to be known." The unavoidable question then becomes, why did he organize a trap for that day? Anyway, once at the home of I PW2 Faustine, the three policemen directed the former to hide himself in the bed-room while PW4 Perpetua I was instructed to remain in the sitting room watching a TV, ostensibly I awaiting the arrival of the "robbers". It was claimed that the robbers struck at about 20.30 hrs. Three of I them entered the sitting room, and I found PW4 Perpetua and her brother in law who were put under arrest. While one bandit was carrying a gun, the other two had a club and a 1 sword. However, the armed bandit went outside almost immediately leaving his two colleagues behind. ,:he ones left inside began to question PW4 Perpetua on the whereabouts of her husband and asked to be given money. Then a single gunshot sound was heard outside. At that juncture the two bandits hurriedly left the ho'use through a hole they made in the roof, after closing from the inside the front door of the house. While these 6 two bandits managed to escape, the one who was outside and armed, was shot on the leg by the police and was arrested, but subsequently died of the gunshot wound. The prosecution evidence is starkly silent on when, why and how the appellants were arrested and by whom. All the same they first appeared in the trial District Court on 29th May, 2003. That was a month after the alleged attempted robbery. The two appellants denied the charge. The first appellant said he was arrested on suspicion by a night patrol policeman on 24/5/2003 at Kewanja as he was going to visit his paternal uncle. He was taken to Nyamongo police out-post and later transferred to Tarime Central Police Station. From there he was sent to court. On his part, the second appellant claimed that he was arrested on 26/5/2003 in the morning as he was going to church. He was taken to Tarime Police station, where he was detained. At 4.00 p.m. he was driven to his home where a search was conducted but nothing incriminating was recovered therefrom. He was taken back to the central police station and 7 on 29/5/2003 was taken to the trial District court to face different charges in four separate cases. He, too, denied committing the alleged attempted robbery. The appellants, who appeared before us in person and unrepresented, only adopted the grounds of appeal listed in their separate memoranda of appeal. They had nothing to tell us in elaboration thereof. Submitting in support of the appeals, Ms Mrema pressed us to fault the conviction of the appellants. She took this stance because the conviction was based on very weak dock identification evidence which was contradictory and implausible. She further argued that failure to conduct an identification parade, as the appellants were total strangers to the identifying prosecution witnesses, gravely whittled away the identification evidence. On this she referred us to two decisions of this Court. These are:- (i) FRANCIS MAlALIWA DEUS & OTHERS V R Criminal Appeal No. 139 of 2005, and 8 (ii) A 9249 WDR KAROLI SYLIVESTER @ MGENZI & OTHERS V R, Criminal Appeal No. 157 of 2006 (both unreported). Cementing her position, Ms Mrema went on to argue that notwithstanding the lack of cogency in the purported visual identification evidence, the prosecution also failed to prove the charge of attempted armed robbery. No single witness testified that the bandits had attempted to rob TAS 200,000/= from anybody as the particulars of the charge alleged, she said. After carefully re-evaluating the entire evidence on record, we have found ourselves in full agreement with the contentions of Ms Mrema. Admittedly, only two issues deserve our serious consideration in this appeal. These are, one, whether or not the offence of attempted robbery on PW2 Faustine Hamis was proved to the required standard. Two, if the answer to the first issue is in the affirmative, whether or not the two appellants were impeccably 9 t identified as the bandits who attempted to rob PW2 of his TAS 200,000/=. Beginning with the first issue, we pose this pertinent question: What is robbery? In law, robbery is the stealing of anything capable of being stolen accompanied by the use of force or threat of it. When a clearly manifested intention to rob is thwarted or frustrated by any intervening event, the offence becomes an attempted robbery. The appellants, as already shown, were facing a charge of attempted robbery. The particulars of the charge partly read as follows:- "That Mniko s/o Iranda ...... and Daniel Mwita s/o Samwel .... Jointly and together ..... on 2!fh day of April, 2003 ... did attempt to rob cash money Tshs. 200/000/- from one Faustine Hamis s/o Matiku and before such 10 J time of robbery they threatening (sic) to shoot one Faustine Hamis s/o ;Matiku with a gun in I order to obtain the said property. " I To secure a proper conviction of the appellants, the prosecution had to prove beyond reasonable doubt that:- 1 I 1 (i) the appellants, on 29th April, 2003 did attempt to steal cash Tshs.200,000/= from PW2 Faustine Hamis, and (ii) before such attempt they had threatened to shoot at him with a gun in: order to obtain the said money. I Did the prosecution manage to prove these two essential ingredients of the charged offence? Although the two courts below comfortably I settled for an affirmative answer, after scanning the entire evidence I on record, we have failed to glean I therefrom a scintilla of evidence, let alone cogent evidence, to support this conclusion. We shall show why. I 11 Of all the six prosecution witnesses, only four of them (PW2, PW4, PWS and PW6), allegedly witnessed the attempted armed robbery. We wish to stress here that we have used the word ''allegedly" deliberately. This is because going by the evidence on record we are not even sure if such an incident occurred. As already shown in this judgement, PWl Juma testified that he had on 27/4/2003 overheard the appellants planning to stage a robbery at the home of PW2 Faustine on 28/4/2003. Although PW2 Faustine was well known to PWl Juma, the latter did not inform the former of this plan until 10.00 hrs on 28/4/2003, the day of the planned robbery. Although PWl Juma claimed to know two of the conspirators, whom he identified in court to be the two appellants, he neither named nor described them to PW2 Faustine. On his part, PW2 Faustine, on receiving this report never took any immediate steps to thwart the alleged planned robbery. He never even divulged this information to his wife (PW4). He acted as if nothing unusual was in the offing that night and went to bed unperturbed. It was after they had heard, as claimed, people outside disputing amongst 12 themselves as earlier shown in this judgment, that PW2 Faustine told his wife what he had been told by PW1 Juma that morning. As if adding insult to injury, despite the fact that the robbery was planned to take place that day, the presence of those people outside did not disturb him. He took no steps. They slept until the next day. This to us and indeed to all reasonable people is clearly inconceivable. It is not clear from the evidence on record as who did what on the morning of 29th April, 2003 as between PW2 Faustine and PW4 Perpetua. PW2 Faustine claimed that he personally reported the matter to the Tarime O.C.C.I.D. On this he was belied by his wife (PW4) who unequivocally testified that she was sent by her husband to go and report the matter to the police. But more mysteries emerged at the time of the alleged attempted robbery. As we have already adequately demonstrated in this judgment, the only witness who confronted the bandits was PW4 Perpetua. This is because PW2 Faustine had been confined by the police 13 officers to his bedroom, and both PWS D/C Johannes and PW6 5/Sgt Makole had taken cover in some other rooms of the house, whose walls were not constructed of transparent glass, going by the evidence on record .. In that case, neither of these three witnesses came into contact with any of the three "bandits'~ That's why PWS D/C Johaness and PW6 S/Sgt. Makole, not only failed to arrest them but also failed to shoot at them, and they easily mysteriously ran out of the house through the roof by cutting an iron sheet. Another seemingly unimaginable feat by a mortal human being. How did they manage to reach the roof from the floor? This crucial issue which was not considered by the two courts below is not answered by the evidence of PW4 Perpetua. This might have been a figment of Perpetua's own imagination. According to Perpetua, (PW4) after the ''armed bandit" had a exited the house, the remaining two bandits who were unknown to her, began to question her on the whereabouts of her husband and wanted to be given money. Before she responded a gunshot sound was heard outside. There and then, the ''bandits" locked the door 14