20060531 TZHC Moshi2 1

() IN THE HIGH COURT OF TANZANIA ATMOSHI (DC) CRIMINAL APPEAL NO. 39 OF 2005 t ii i/ I (ORIGINAL DC ROMBO CR. CASE NO. 427/2004) BEATUS PHILIPO - - - - - APPELLANT VERSUS THE REPUBLIC----------------------- RESPONDENT. JUDGMENT: HON. JUNDU, J. The Appellant, in the trial court was charged with Robbery with Violence c/s 285 and 286 of the Penal Code, Cap. 16, Vol. I of the laws. The particulars of the offence were that the Appellant on the in day of September, 2004 at about 19.30 p.m. at Mbomai Juu Village within Rombo District in Kilimanjaro Region did steal one bicycle make Avon valued at shs. 30,000/= the property of one Patrok~li Kalebu and at or immediately before the time of such stealing did use actual violence to the Patrokili s/o Kalebu in order to obtain the said bicycle. Having heard the evidence of the prosecution witnesses and the defence witnesses the trial magistrate found the Appellant guilty of the offence with which he was charged of and convicted . him. He sentenced him to 15 years imprisonment and to pay compensation of shs. 30,000/= to the complainant. Having been aggrieved by the conviction and sentence imposed on him by the trial magistrate has appealed to this court listing six (6) grounds of appeal as follows:- (1) That the lower court failed to have evaluated the whole evidence adduced by both parties and therefore wrongly convicted the Appellant instead of acquitting him absolutely. (2) That, the learned district magistrate erred in law and fact when he passed on the appellant sentence hence the witnesses did not give a concrete evidence capable of proving that the appellant stole the said exhibit. (3) That the trial court magistrate wrongly accepted and believed the prosecution evidence since they did identifying the person who stole their bicycle. 1 (4) That the trial magistrate erred in law and fact when he compromised with prosecution side that the Appellant was among the bandits who stole the said bicycle without any description of the accused in the evidence of prosecution side. (5) That the trial magistrate erred in law and fact when he ignored a fact that the appellant was mistaken to be thief who stole the bicycle since the appellant had conflict with other youths who wrongly connected the appellant with the prosecution witnesses. (6) That the appellant repeats to argue that no proven evidence was adduced sufficiently to establish his guilty beyond reasonable doubt. Based on the above named grounds of appeal, the Appellant in his Petition of Appeal prayed to this court to allow the appeal, quash and set aside conviction and sentence imposed on him by the trial magistrate; Though the Appellants has listed six (6) grounds of appeal, the main issue being contested by the Appellant in my considered view is that the prosecution witnesses at the trial court did not prove the guilty of the Appellant beyond reasonable doubt. Mr. Maugo, the learned State Attorney who appeared for the Republic/Respondent supported conviction and sentence imposed on the Appellant by the trial court. In his submission he revisited the prosecution evidence adduced by PWl, PW2 and PW.3 and submitted that the prosecution witnesses in the trial court had adduced evidence that proved the charge against the Appellant beyond reasonable doubt. The evidence on record and as revisited by the learned State Attorney before this court on .the part of the prosecution is very clear. In brief, on 7/9/2004 at 19.30 hours the complainant, PW.l Petrokili Kalebu, while on his way back home on his bicycle, was stopped by the Appellant who was with another person. The Appellant beat PW.1 and he robed his bicycle and ran away with it. PW.1 shouted for help, people came and followed up the Appellant. He was met at a shop buying some cigarettes. After being arrested and beaten, the Appellant took them and showed them the bicycle where 1}f had hidden it. PW.2 testified that on 7/9/2004 he had given a bicycle to PW.1 who went home with it; but after five (5) minutes he saw the Appellant pushing the same. PW2 thought the Appellant might have been given by PW.l. Later on he heard PWl had been robbed of the said bicycle. PW2 stated that the Appellant had hidden the bicycle in the bush and upon being beaten he showed where he had hidden the bicycle. PW3 gave similar evidence like PW.1 and PW.2. The bicycle which was robbed was produced in the trial court by PW.land was 2 admitted as Exhibit P2 while PF3 for injuries which PWI received from the beating by the Appellant was tendered by PWI in the trial court and was admitted as Exhibit Pl. Ori the other hand, the record shows that the Appellant in his defence at the trial court had adduced evidence to the effect that on the material day he had bought some maize at Tarakea and was drinking in a pombe shop with three youths one of them being one Willy. He later on went to a shop to buy some cigarettes and that three youths appeared and asked him why he was taking their woman. They beat him up and took his maize away and they told him that he had robbed a bicycle. He contended that one youth went to the pombe shop and brought a bicycle and he was taken to the police with it. In my considered view, the six (6) grounds of appeal filed by the Appellant can be tackled collectively because the main issue that cut across all of them is whether the prosecution witnesses in the trial court proved the charge or guilty of the Appellant beyond reasonable doubt. Was the Appellant the one who had robbed PWI 's bicycle or properly identified as the one who robbed it? As stated by the learned State Attorney the evidence of PW.I which has been corroborated with the evidence of PW.2 and PW.3, the Appellant was found at the shop where he was buying cigarettes and after being beaten he went and showed where he had hidden the robbed bicycle. This piece of evidence, in my considered view properly answers as to who robbed the bicycle from PW.I and the issue of identification, this is simply because if the Appellant was not the one who had robbed the said bicycle how came then he led and showed the said bicycle in the place he had .hidden it as per the evidence of PW.I which was well corroborated by the evidence of PW.2 and PW.3. The said robbed bicycle was tendered in the trial court by PW.I and admitted as Exhibit ·' "P2". Further, PW.2 in his evidence stated that he was the one who had given the particular bicycle to PW.I for riding home but a few minutes thereafter he met the Appellant pulling the said bicycle thinking that he might have been given the same by PW. I. All the evidence on the prosecution side at the trial court as properly evaluated by the trial magistrate on page 2 of his judgment proved that the Appellant committed the offence with which he was charged of beyond reasonable doubt. In the process of robbing the bicycle from the PWI, he was injured, he tendered PF3 in the trial court and was admitted as Exhibit "Pl". I quite agree with the trial magistrate in that PW. I could not wound himself so as to frame the case against the Appellant. In ground five (5) of the appeal, the Appellant contends that the trial magistrate ignored the fact that the Appellant was mistaken to be the thief whole stole the bicycle since he had conflict 3 with other youths who wrongly connected him with the prosecution witnesses. In his submission, Mr. Maugo, the learned State Attorney in his submission replied that the Appellant did not canvass the said point in the trial court. Before me, the Appellant stated that PW 1 and PW2 met him at the shop where he went to buy cigarettes and forced him to buy them cigarettes or tell them why was he buying "mbege" for the woman attendant at the pombe (mbege) club. So he alleged that the conflict was on the said woman attendant and that PWl and PW2 beat him up, put him on a bicycle, sent him to a hospital for treatment which demanded PF3 so he was taken to police station where he was given PF3 for treatment because his right leg was dislocated but what surprised him is that the said PF3 was not produced at the trial court. In my considered view, this submission of the Appellant centers on his contention that the stated "conflict" was on a woman attendant at the pombe shop. It is true that the Appellant in his defence evidence at the trial court stated that " ........appeared three youths who stopped and asked me as to why I came there to take their women". However, in the said evidence, he did not specify that the said three youths included PWl and PW2 nor did he state that the "woman" included the club "attendant woman" who was selling "mbege" when PW.1 "and PW2' allegedly asked him why he was buying her "mbege". Again, the said alleged defence evidence, in my considered view did not revent the evidence of the prosecution witnesses that on being beaten, the Appellant showed the robbed bicycle in a place where he had hidden the same. Therefore, this story of there being a conflict with the youths connected to the prosecution witnesses is just an after thought on the part of the Appellant. In the final result, this appeal has no merit, I hereby dismiss the same. I uphold conviction, sentence and order made by the trial magistrate on the Appellant. It is so ordered. ~ F.A.R. JUNDU, JUDGE, 31.5.2006 Right of Appeal Explained. F.A.R. JUNDU, JUDGE, 31.5.2006 4 31.5.2006 Coram: F.A.R. Jundu, J. For the Appellant: present For the Respondent: Mr. Maugo, State Attorney C/C: Matiku Court:- Judgment delivered in the presence of the Appellant and in the presence of Mr. Maugo, learned State Attorney for the Respondent/Republic. F.A.R. JUNDU, JUDGE, 31.5.2006 ATMOSHI ·() 5 • l • i ' l j I l .l f '1 l 1 . .;:- . 0