20051031 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CRIMINAL APPEAL NO. 174 OF 2004 (Originating from District Court of Morogoro at Morogoro Cr.Case.No. 309/2003) JUMA DASO .................. APPELLANT VERSUS REPUBLIC ............. RESPONDENT ,r - JUDGMENT MLAY, l The appellant was charged with and convicted of Robbery c/s 285 and 286 of the penal code, and sentenced to fifteen years imprisonment and also to suffer corporal punishment of twelve . strokes. The appellant has appealed to this court on five grounds, which can be summarized as follows:- 1. That the trial magistrate erred in convicting the appellant in the weak evidence of PW.1 ·and PW.2 and that the prosecution failed . to produce the statement of PW. 1 as . .., required under S. 166 of the Evidence Act;. 1967. •' . 2. That the trial magistrate erred for not considering the defence evidence by DW.1 and DW.2. .. 1 .. 3. That 'the trial magistrate erred for not considering the defence of alibi 4. That the trial magistrate erred for relying in the evidence of PW 1 of identification where the circumstances of identification were difficult 5. That the trial magistrate misdirected himself in the assessment of the credibility of the prosecution witness (PW.1) At the hearing of this appeal the appellant adopted the contents of his memorandum of appeal. Mr. Vincent Haule, "'State Attorney submitted that section 166 of the Evidence act 1967 does not require the production of statement of witnesses. He argued that although the appellant was initially charged with causing Grievous Bodily Harm, the charge was substituted with one of Robbery in accordance with section234(1) of the Criminal Procedure Act, 1985 and that the appellant was given the opportunity to recall PW .1 who had already testified. He further submitted there then is no specific number of witnesses required to prove any matter and in the appellants case, the evidence of PW.1 was found sufficient to convict the appellant of the offence. 2 Mr. Haule considered grounds 2 and 3 together and submitted that the trial magistrate considered the defence evidence and did consider and reject the defence of alibi for reasons that the appellant himself had not raised it and also that the appellant had not given notice of his intention to raise that defence. Mr. Haule also considered grounds 4 and 5 together. He submitted that the circumstances of identification were favourable and refered to the evidence of PW .1 at page 8 of the proceedings, where he stated that the event took place at a sport where there were electric lights and also that PW.1 stated he knew the appellant before the robbery and he mentioned his name which led to the appellants arrest. Mr ·Haule further submitted th~~ the trial magistrate assessed the credibility of PW .1 and found PW .1 to be a credible witness. For these reasons he prayed that the appeal be dismissed. In reply the appellant submitted that he did not understand the procedure of recalling PW.1 or of giving notice of alibi. He reiterated that at the time of the robbery he was sleeping at home as testified by DW.2 Having perused the copy of the judgment and considered the matters raised in this appeal, I think the main point of contention is whether there was sufficient evidence to ground the conviction of the appellant. The only evidence connecting 3 •• f I the appellant with the offence is that of PW .1. He was the ·. sole eye witness. The second prosecution witness merely arrested the appellant upon information supplied byPW.1. According to the testimony of PW.1, he was riding his motorcycle going home around midnight. Suddenly 4 people appeared with iron bars and stones. PW .1 came across a rope tied across the road which caused him to fall down. He stated that among the 4 people he identified the appellant JUMA S/O DASSO who was holding a panga in his right hand. PW.1 said the appellant cut him at the back of his neck and on his upper lip and he fell down. He further testified that those people demanded money from him and he told them that the money · was on the motorcycle. They then went to the motorcycle. He testified further that the said four people assaulted him with iron bars and stones until he last consciouness and found himself in hospital. He produced PF.3 to prove that he was injured. In his evidence in chief Pw 1 did not describe the circumstances of the identification. It was upon being examined by the court that he stated he had Shs. 30,000/=, a mobile phone and a wrist watch, the properly mentioned in the particulars of the charge as having been stolen in the course of the robbery: "It was also in the cause of being examined by the court that PW .1 stated . I was attacked at Kichangani area, 4 near the main road to Town. There is a· Railway Crossing. That place is full a electricity light. I was alone that night. I saw the accused person. The accused had out on a trouser Jeans blue in colour and a colored shirt... " Upon cross examination by the appellant PW.1 stated: "I know you for a long time now ...... I duly recognized you before the attack... " In her judgment at Page 2, the trial magistrate having considered the evidence of PW.1 and PW.2 stated. " As this Juncture having carefully summarized all evidence before this court, I am inclined to believe the testimony of PW.1 and PW.2 as true. PW. 1 testified that he knew the accused well before the incident. He further testified that at the scene of the incident there was enough electricity light to enable him to identify the accused who was not disguished. As such, the conditions of Identification were favourable and do not warrant any doubt in my mind as to the accuracy of the identification'~ The appellant has challenged the evidence of identification by PW.1 considering that PW.1 did not mention in his evidence in chief 5 . ' that he was robbed of the properties specified in the charge and also that he did not mention that there was electric light at the scene until he was examined by the trial magistrate. The evidence of PW .1 they have been an after thought or PW.1 may have been credible witness but could have been mistaken in his identification, just as he forgot to mention the important matters in his evidence in chief. Secondly, it is amazing that, if the alleged robbery was reported to the police, the appellant was initially charged with Causing Grievous Bodily Harm. The charge of robbery was only substituted after PW.1 had testified on the charge of Causing Grievous Harm which .the appellant was facing. This suggests that the police even afte~ completing their investigations, were not convinced that robbery had been committed. If the trial magistrate had properly directed his mind to these factors, it is possible that the trial magistrate would have found the prosecution case doubtful. I am in agreement with the learned State Attorney that the appellant was given the opportunity have PW .1 recalled, but he declined. I also agree that there was no legal requirement for the prosecution to produce the statement of PW .1. However on this I think what the appellant is saying, is that if the appellant gave a statement to the police alleging a robbery, how come he was charged first with Causing Grievous Harm? As I indicated above this 6 is a legitimate question in the circumstances in which the charge was substituted. As for the alibi, I. also agree with the learned State Attorney that it was properly rejected. The alibi was given by DW.2 and not by the appellant himself . However, as the appellant does not have the burden of proving his innocence, the rejection of the alibi does not probe his guilt. As I have demonstrated earlier on, the appellant was convicted solely, on the evidence of PW.l. It the trial magistrate had properly directed his mind on the fact that PW.1 had not stated in this evidence in chief that the robbery took place where there was light and that he had not also alleged that he was robbed of the money, hand phone and watch mentioned in the charge substituted sheet before he was prompted by the questions from the court, the court could have found the prosecution case doubtful. It appears even the prosecution was taken unawares by the evidence of PW.1 when answering questions from the court and that is when the prosecutor applied to substitute the charge of robbery. I therefore find that it is unsafe to uphold the conviction of the appellant on the evidence of PW.1. For this reason the appeal is allowed and the conviction and sentence are set aside~ The appellant 7 shall be he released from custody with immediate effect unless he is otherwise lawfully detained. Delivered in the presence of Ms. Mwanda State Attorney and the appellant this 31 st day of October, 2005. 8 r. ,.. .-