NA TZHC Mwanza4

IN THE HIGH COURT Of TANZANIA ATMWANZA CRIMINAL APPEAL NO. 131 OF 2014 {Original Criminal Case Number 214 of 2010. Of The District Court of Serengeti at Serengeti Before Kiswaga RM} MCHAGWA NYAMUBUCHIGIRWA@ MAKURI ... APPELLANT VERSUS THE REPUBLIC ..................................... ,.............. ■■ a••·· s ■ RESPONDENT JUDGMENT S.B.M.G. Matupa J. · This is an appeal against the decision of the District court of Serengeti, which convicted the appellant with the offence of Robbery with violence. It was alleged· at the trial that the appellant on the 15th day of July, 2010 at about 05:0.0 at Bomani area, Mugumu township,. Serengeti District and Mara Region stole one radio Cassette and one media Com receiver,. : "... all valued at shillings 230,000/ =the property of one Selina _Francis and before such st~aling did . 1 stub her using a knife on her head and at the back bone in order to obtain such property.,, I ) The facts of the case are as follows. The complainant has a restaurant in Mugumu Township. On the fateful day, as was a -routine, she woke early in the morning to prepare herself for . . the resta1:-1rant. In her own words, it was at about 04.47 to be .precise. When she went to the sittf ng· room, _she switched on the lights. She discovered that it was setting in her room was disturbed She also noticed that the radio and a TV receiver were missing. She also noticed that the items in the cupboard were removed and were placed on the coach. As she went out, she noticed that the exit door had been unlocked. Then two people who were hidden at the end of the corridor emerged from their . . · hiding and attacked her. One holding her from behind and the appellant attacked her from her front. They demanded money from her. It •is not apparent who asked for the mon.ey. But she claimed that she was then stabbed by _the appellant on various 2 . 1 . places of her body and ~as injured. She put up a resistance while at the same time raising an alarm. Her son, one Ismail who was sleeping in the outside room was the first to respond. When he came he stabbed the appellant and wounded him severally; Chacha Malaya a security guard at the District Court which· happens to be in the neighbourhood was the next to respond. 0th.er people came later. These overpowered the dual. The appellant managed to escape. The other one was overpowered and following the mob justice that ensued he was injured and did not survive. The complainant was badly injured, she was hospitalised at the Mugumu Designated District ·hospital and was later referred To Bugando hospital. She was hospitalized for several days and was discharged. Following the investigabon that was conducted, the appellant was arrested seven· days later on the 17th July, 2010. He wa_s ·charged of. the -offence of Robbery with violence ·was· convicted and was sentenced to" a term· of thirty (30) years 3 imprisonment. Aggrieved with that decision, the appellant has appealed to this Court on four grounds. The substance of the grounds is that one, the offence of robbery was not proved as stealing was not established. Two, the evidence of identification . . was not adequate. Three the trial court was wrong not to draw adverse-_ inference against the prosecution for it's failure to produce the evidence of a knife that was supposedly recovered from the scene of crime. And lastly, the trial court was wrong in believing the evidence of burglary given that it was not adequ?tely demonstrated how the gate could have been broken. Before this c9urt the appellant appeared in person, he was not represerited. On the other hand the Republic, the respondent . . herein was represented by M/s Ajuaye Bilishanga, .. The learned Senior State Attorney. The appellant was reminded ·of his grounds of appeal in Kiswahili. He adopted t_hem and had nothing useful-to add. The ·1earned Senior State Attorney started by supporting the 4 conviction and sentence. Hovyever as she continued to submit,. jJ she discovered that the evidence of stealing was either not solid or that there was a clear disconnect, between the alleged assault and the alleged stealing. She discovered for example that, as the complainant woke up in the early hours of the morning -of the fateful day, she found the items subject of stealing· already missing. As it turned out, the items were not recovered, let alone that they were not in the possession of the appellant or company. She therefore conceded that under the - circumstances of this case, the charge .of robbery was ill- founded. · It is now a well-established principfe of the law, that in order for the charge of robbery to consummate, stealing must be proved, and the violence must qe in fu~herance of the . . . stealing: ·A typical example is the case of Ally .Juma versus the Republic Criminal appeal number 219 of 2014 C.A . . (Mwanza Registry) (unreported), where the court of Appeal in _a . case where the evidence showed that money· was stolen from 5 the complainant but no violence was used. The thief took to his heels. Sometimes later, the appellant was arrested. Yet, at this . time there was no resistance. He surrendered the stolen money. After the surrender, there ensued chaos and. stone throwing. The issue for determination at the Court of appeal was· whether the violence ·was for · the purpose of stealing · money. The Court of Appeal.held as, follows: "... the act of throwing stones according to the evidence. of PW1 Manga and PW2 Homy came subsequently at the time when he was no longer retaining. the money. So going by the evidence of PW1 Manga and PW2 Homy Charles Ghati did not use violence against any of them immediately ·before or during the course of stealing the money in order to obtain or to retain the stolen money. He could nQt have used violence to retain what was not in his possession it is clear therefore, the offence of robbery was illegally procured by the prosecutor's distortio,r of the facts, taking the advantage of the accused's ignorance,hence our earlier observation that charges of armed robbery which are. becoming fashionable these days even when there is no justification. Thf! offence committed by Charles and Ghati in our . . considered opinion was simple theft." As can be seen in the foregoing· passage, an offence of robbery is one of ag·gravated stealing. There cannot be ·6 -~_,_...__. __ ·- a robbery if stealing is not accompanied with violence. It would therefore appear that the violence must be aimed at either stealing, that is larcenous taking or ret9ining the stolen goods or retaining the goods. By analogy, the vice versa is.true. The discussion on this aspect of the ·1aw has been·. alive for quite a while. I will deal with this aspect later in the course of this judgement. In the. present case it is crystal clear that when the complainant woke up already the radio cassette and the decoder were missing. Assuming that it wa·s the appellants who had stolen them, then it would fellow that at the time ·they took the item·s no force was used. But again, it. was not certai_n that they are the ones who took the items. From the facts the first ground has .merit. Ac;:cordingly I allow it. The appellant has contended in his second ground of appeal that the tria! magi_strate was not justified in relying. on the· evidence. of identification. He haschallenged the. 7 evidence of familiarity, and that the description by the attire was also inconclusive, and lastly that the appellant was not mentioned at the earliest opportunity. On this ground there is the evidence of _the complainant and one Ismail Juma who mentioned the appellant. The complainant has demonstrated that she· was indisposed after the attack as she was hospitalized for some time. However, PW2 is on record that he mentioned the appellant to the police immediately after he had gone there for a PF3. He is also on record that he had a rough encounter with him before he let him go. The rest of the grounds of identification were treated adequately by the trial magistrate, including the dying declaration of. the other bandit who was overpowered by the mob. From the treatment of the evidence by the trial magistrate I find no reason to disturb his findings on · .. . identification. Suffice it to say th~t ·unlike the complaint of. lack of light, the complainant has it that she had lit a tube g· light along the corridor, which was. luminant enough to provide the necessary light that was used to identify the appellant and colleague. In fact she woke up on the fateful day to prepare for her other errands. She never expected the guests in her h·ouse. When she was lighting the tube light, she never ·apprehended any danger.M/s Ajuaye has invited me to consider the Authority of the Court of Appeal in the case of Emanuel Luka and othersversus the Republic Criminal Appeal number 325 of 2010 which applied in .context, the very celebrated case of• Waziri Amani Versus the Republic 1980 (TLR) 250 and arrived at a conclusion that the appellant was · adequately identified. The claim that they were not strangers was not seriously controverted. I agree with the learned trial Magistrate that the tube light along the corridor which had just been lit by PWl provided the necessary light for identification. Unli_ke the complaint 'that there was late· men~ioning of _him, PW2 claimed that he mentioned. the 9 appellant first thing _he went to the police. This evidence was not taken up by the way of impeachment during cross examination or at defence.In fact the appellant does not deny being present at the scene. The contention that he · went there in response to the alarm is bel"ied by the claim by PW1 -and PW2. In the result ·I dismiss the second · ground. On the ground that_ the failure to produce the knife in evidence warrants drawing adverse inference to the prosecution, this claim is not wetl informed. We are not told that the knife was retrieved in the first place. So this is conjecture. Secondly, even if it was, we are. not told that it was not mishandled one way or the other in such a way that its evidential value coulq be compromised. All in all, · Ifind no substance in this ground. It is accordingly · dismissed. ·_ I will al_so.dismiss the .fourth ground- because whatever ., · the case, it is tr_ue that there were two persons who 10 burgled into the complainant's house, one of whom was J killed in the house, the fact which was not seriously contested. In fact, the appellant himself does not deny that he was present at the scene. His defence was that he went there to respond to the alarm that was raised. He cannot be heard to be denying that there could not be breaking which he himself witnessed. I will dismiss this ground as well. Now having held that the appellant may not have stolen the goods at the time they assaulted the complainant, and given the holding that it istrue on the evidence on ·record that there was assault. At the outset let me hold that the PF3 in this case .was admitted in contravention . of section 240 (1) of the Criminal Procedure . Code. The appellant was not addressed in terms of that section .. However, even without the PF 3 still there is abundant evidence to the effect that the c·omplainant was . 11 - . -- ... --- l injured and was hospital_ized. The appellant himself does not dispute that fact. ~gain, having held that the offence of robbery was not consummated in this case what is the next cause of action.Section 300 of the Criminal Procedure Act provides_ as follows: 1} "Where a person is charged of an offence constituting of several particulars, a combination of some of which constitutes a complete minor offence, and such combination is proved but the remaining particulars are not proved,he may be convicted of the minor offence although he was not charged with it. 2) Where a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor- offence althou_gh he was not charged with it. " The issue is whether the offence of assault can be substftuted for that of robbery. There is a chain. of . . authorities to the effect that where in a charge of robbery with violence stealing is not proved, a conviction of the offence of assaLJlt can be substituted for it. The case --of fr1/ussa and others versusthe Republic (1967) E.A. 537 12 ·#•---·· -· --· Mr. JL:Jstice Platt as he then was said that the ingredients of the offence of assault were included in that of armed robbery with violence. His lordship reiterated his position in the case of Seyale Seliani versus the Republic (1968) H.C.D. 243 in which much as the. offence of stealing was not est9blished as the accused in that case set out upon the complainant. and in the course of the beating a wrist watch somehow dropped from the wrist and the appellant picked it, first it was held that the violence was not aimed at stealing the watch but stealing. was ·only incidental to the· beating. The Court proceeded to substitute the conviction for the offence of assault in ·Iieu . w.:;tt, thereof. That case was quotedA approval by Kwikima Ag _ Judge in ·the case of Sabuni and Abdallah versus the Republic(1971) H.C.D 138. Earlier, Justice Mustafa had an opportunity to-address the issue in the following terms 13 ..... may I also mention ~hat I very much doubt if the magistrate was entitled to invoke the provisions of ) section 181 of the Criminal Procedure Code {now section 300 of the C.P.A.J in conviction of the appellant of "Occasioning grievous bodily harm c/s 225 of the Penal code . •.• it will be. seen that it is not necessary to do grievous harm to any person unlawfully in order to commit robbery. The offence of robbery is committed if any person · uses or threatens to use violence in order to obtain or retain the thing stolen. I do not think therefore. an. offence . contrary to section 225 is a minor to- robbery in terms of section 181 of the CP.C {sectioJJ 300 of the CP.AJ~ .. "{see the case of Musa V. Republic {supra}} The position of the law is .therefore that the .offence of assault can be substituted for that of robbery. The last limb to be decided is what would be the appropriate sentence to be met under the circumstances? I am asking myself this question because of the wording of the said section 240 of the Penal code. That section provides as follows: "240. Any person who unlawfully assaults another is guilty of an offence and, if the assault is not committed in circumstances for which a qreat~r punishment is not provided in this code, · is liable to imprisonment for one year. 241. Any person who commits an assault occasioning actual bodily . harin is . guilty on 14 I • offence and liable to imprisonment For five . years." There are a number of other types of assault under Chapter ·xxv of the· Penal code, all of which may not be relevant for the purpose· of. this discussion. The ~omplainant in her evidence averred that she was assaulted with a knife. She sustained serious injuries that led to her being hospitalised for quite a while at Mugumu DOH and was thereafterreferred to Bugando Referral hospital. Definitely ·she suffered actual bodily harm. This evidence is corroborated by PW2 and PW3. All of them are at one that the wounds were a result of a vicious attack by the appellant and his colleague. The complainant explained how -the attack was executed. Had it not been for the gallant defence on the: part of the victim, the said PW1, she would- ·have lost her life. The appellant and company ~eant business. These facts --show that the assault was unde·r section 241 than section 240. · 15. . I have considered the authorities in the cases above, it is clear that there has been a disinclination to substitute a - convi~tion for causing grievous bodily harm for Robbery, because it is not necessary that a robbery can result into a harm. I am not sure if the same position would have been good had the case been that of armed robbery as·. was the case herein. I am of the firm view that in the case of armed robbery, a harm or even injury is an intended and natural consequence. I therefore substitute the conviction of the offence of assault causing actual bodily. harm for that of armed robbery. As to the sentence, I have considered the facts of this . case and the manner the attack was executed. The attack was. really vi~ious. I am satisfied that this. is a cas~ that calls for the maximum sentence. I will substitute the sentence of thirty years imprisonment- with that of five years. 16 ' .. Except as herein above, the appeal is hereby · 17 ' . . ,. Date: 29.02.2016 Coram: Hon. S.B.M.G. Matupa, J Appellant: present _in person Respondent: Hemed H. Halfani State Attorney for the Respondent · B/C: Shida This case is set for judgment. The appellant is present. We are ready for judgment. S.B.M.G. Matupa, J JUDGE 29.02.2016 Court: The. judgment is read in. chambers in the presence of the appellant and Mr. Halfani State Attorney. . r; a~,J-;.~ /~- S.B.M/.G. Matupa, J 1 v-:_z{?.'~~ . JUDGE . . ~r:-\,•· .. 6 ~\ .; '·,l \~\\ . ,r,,Y -.,-;~~= ::~;~;,::Y . )8