20060724 TZHC Moshi 1

IN THE HIGH COURT OF TANZANIA ATMOSHI 0 , . (DC) CRIMINAL APPEAL NO.31 OF 2003 · (C/F ORGINAL ROMBO DISTRICT CR.CASE NO.389 OF 200~ I YUST KARUME SHIRIMA .......................... APPELLANT VERSUS THE REPUBLIC ................................... .. RESPONDENT JUDGMENT Hon.Jundu,J The Appellant, in the trial court was charged with Armed Robbery els 285 and 286 of the Penal Code, Cap.16, Vol. I of the laws. The particulars of th the offence were that the Appellant on the 8 day of July, 2001 at about 15:00 hours at Msaranga Village, within Romb District in Kilimanjaro Region did steal one bicycle make Vensely valued at Tshs.43,000/= property of one Vecepherraus s/o Bazil and immediately after such time of stealing did use sime to cut wound on the head of one Bazil s/o Makiewa in order to retain stolen property. The facts of the case are well narrated in the judgment of the lower court. It was alleged that PWl who resides at Mahorosha went to the home of the brother of the Appellant on 8/712qo 1 in order to fetch water. He went . with his bicycle and a plastic of sixty litres. He fetched water and started going back home. On the way he met the Appellant who had a sword and he cut him on his head and the Appellant managed to rob him that bicycle and the plastic. PWl shouted for help and the Appellant threw that plastic on the ground and took the bicycle and began running away with it. Some peopie responded to the shouting and the Appellant was arrested after he had run a short distance. In the trial court, PWl tendered the bicycle and the plastic as Exhibit "Pl" collectively and a sword as Exhibit "P 11 ". In his defence, the Appellant stated that the bicycle and the plastic were his properties. PWl in his evidence stated that on 8/7/2001 at 3 .00 pm he met the Appellant and later he saw him robbing PWl 1 his bicycle and the plastic. He alleged that 1 many people responded to the call for help and came to the scene and the Appellant was arrested. PW 111 who is the father of PW 1 in his evidence stated that they followed the Appellant who had a sword and he (the Appellant) cut him (PW 111) on his face but they managed to arrest him and took him to the police station. PWl 11 tendered the PF3 which was admitted as Exhibit "P 111 ". PW 1 was recalled and tendered the receipt for the bicycle and was admitted as Exhibit P4". In his defence evidence at the trial court, the Appellant stated that on 8/7/2001 he took his bicycle and plastic of 60 litres so that he could go to the home of Bazil Makiana (PWl) to buy local liquor known as "mbege". He reached at the said home and met PWl 11 the father of PWl, PWI 1 lasked him about his money (Tshs. l 7, 000/=) and the Appellant replied that he had not brought that money to him and he promised him (PW 1111) that he (the Appellant) would pay the same at the end of the month. He testified further that PWl 11 caught his bicycle and began to pull it and the Appellant resisted and PWl 11 was wounded. PWl came at the scene with a sword and they robbed him his bicycle. He went to the village office and found it closed and later he went to Mashati police post and he met PWl there and he (the Appellant) was locked up and was later on brought to the trial court and charged with the offence of Armed Robbery. He insisted in · his evidence at the trial court that the bicycle and the plastic were his properties. He tendered the receipt of the bicycle and the same was admitted as Exhibit "D l ". He further testified that his bicycle had special marks, on its sterling, there was a piece of cloth and had a solution inside it and on its frame there was a hole which was covered by a piece of wood and as regards the plastic it had a mark at the bottom. Having heard, the evidence of the _,prosecution witnesses and the defence side, the trial magistrate was satisfied that the prosecution side had proved its case against the Appellant and found him guilty as charged. He convicted him of the charged offence and sentenced him to 30 years imprisonment. Having been aggrieved by the conviction and sentence imposed on him by the trial magistrate, the Appellant has appealed to this court listing six ( 6) grounds of appeal in his Memorandum of Appeal namely:- ( 1) That the learned trial magistrate erred in both law and fact for convicting the Appellant without first assessing the credibility of the complainant's evidence. (2) That the learned trial magistrate failed to consider that PWl 2 I I and PW2 were relatives and therefore they fabricated the case for their benefit. I (3) That the prosecution side also faiied to tender the sword which was said to injure PW. l and that railure left the charge unproved. (4) That the learned trial magistrate ~rred in law and fact for not considering that PW.111 has grudges with the Appellant and so he concocted the case j for the benefit of the prosecution side. (5) That the learned magistrate ought to have considered that the . ' Appellant tendered the receipt of his bicycle, but the one which was produced at the court was different from the bicycle he was 1 apprehended with. This left the co ntradiction unproved. (6) That the trial court shifted the owns of proof against the Appellant which is a mandatory error in lawl I ' Based on the above grounds of appeal, the Appellant in his Memorandum of Appeal prayed to this court to allow the appeal, quash and set aside the conviction and sentence imposed on him by the trial magistrate and order for his release from the prison forthwith. The Appellant argued the appeal in person while the Republic/Respondent was represented by Mr. Juma, learned State Attorney. I The Appellant, in his submission before this court simply stated that 1 what he had stated in his grounds of appeal sufficed to be his arguments for his appeal before this court. He prayed to this I court to allow the appeal. On the other hand, Mr. Juma, the learned State Attorney in his submission did not support the conviction and sentence imposed on him by the trial magistrate. ·' j Mr. Juma, the learned State Attorney 4ad advanced two reasons as to why he did not support conviction and sentence imposed on the Appellant by the trial magistrate. First, it was due to non-compliance of the mandatory provision of Section 192(3) of the Criminal Procedure Act, 1985 by the trial magistrate and, secondly that the prosecutionI had failed to prove its case at the trial court to the required standard, that isI beyond reasonable doubt. ! On non-compliance of Section 192(3) of the Criminal Procedure Act, 1985, Mr. Juma submitted and I fully agree With him that it imposes mandatory requirement on the trial magistrate to conduct a reliminary hearing and state what matters have been agr!eed and in the process to draw I 3 memorandum of the agreed matters and to read over and explain the same to the accused person in his language he understands and the same to be signed fJ by the accused person, his advocate (if any) and the public prosecutor and be accordingly filed. Mr.Juma referred this court to the decision of the Court of Appeal of Tanzania in the case of Sgt.Benjamin Holela Vs. R [1992] TLR 121 where the said Court has stated that Section 192(3) of the Criminal Procedure Act, 1985 imposes a mandatory duty for the trial magistrate to comply with the provisions of Section 192(3) of the said Act. My careful peruse of the proceedings of the trial court (page 1) shows that the trial magistrate did not comply fully with the mandatory provisions of Section 192(3) of the Criminal Procedure Act,1985 when he conducted preliminary hearing of the case. He simply stated "Matters which have no dispute: Names and Address and That he was arrested." Q He did not go further and state in the said record that the said matters which were not in dispute had been read over and explained to the accused (the Appellant) in the language he understands nor did he make the accused (the Appellant) and the public prosecutor to sign the same. This in my considered view was a gross violation of the mandatory requirements of Section 192(3) of the Criminal Procedure Act, 1985. As stated by Mr.Juma, this non-compliance of the mandatory provision of the said .Section vitiated the entire proceedings making them a nullity thereby. I need not elaborate further. Had it been that this was the only shortfall in the case under appeal; I would have simply ordered a retrial as prayed by Mr.Juma in his submission. However, Mr.Juma later on contended that the prosecution side in the trial court had failed to prove the ,charge against the Appellant to the required standard, that is beyond reasonable doubt. '() Mr.Juma, the learned State Attorney in his submission contended that the two key prosecution witnesses PWl and PW3 were a son and father and their evidence were so brief prompting the judge who admitted the case to state that examination on credibility of the said witnesses be made. He further contended that according to the evidence of the Appellant PW3 had a grudge against him for the sum of shs.17,000/= which the said witnesses had lent to him (Appellant) and on the material day had demanded for payment. He further submitted that the Appellant in his evidence at the trial court testified that the bicycle and the plastic belonged to him and that he had produced a receipt for the bicycle though the bicycle that was brought and produced in the trial court appeared to be different. In his considered 4 opinion, Mr. Juma contended that all these points emanating from the defence case had managed to cast a doubt on the prosecution's case hence {r) the same as is usually the practice and principle of criminal justice should have been to the benefit of the Appellant and therefore he should have been acquitted by the trial court. I quite agree with the position stated by Mr. Juma. · Having carefully perused the charge sheet, the proceedings of the trial court, and the judgment of the trial court and looked at the grounds of appeal, I am convinced that the prosecutions case was not watertight. The charge sheet clearly states that the bicycle is the property of one Vecepherraus s/o Bazil. In the proceedings (page 2), PWI one Nesphori Bazili claimed that "the bicycle and the plastic" were his property. So the name of the owner of the bicycle that was stated in the charge sheet ( Vecepherraus s/o Bazili) differs with that mentioned by PWI in the proceedings. Further, both the bicycle and the plastic were admitted as Exhibit "P 1" collectively by the trial magistrate. However, the charge sheet only mentions about the bicycle and does not mention about the plastic which PWI states in his evidence. Further, PWI 11 one Bazili Makiana in his evidence (page 2 of the proceedings) first contends that "The bicycle is the property of PW 1 who is my son" but later on he states "I bought this bicycle a long time ago." This is a contradiction within the evidence of PW 111 and as against the evidence of PW 1 who had also testified that the bicycle belongs to him. The trial magistrate did not address himself and apply his mind to the said contradictions in his judgment. Further more, the proceedings of the trial court (at page 3) show that PW 1 was recalled in orde~ to tender a re5eipt for the bicycle. It was -admitted as Exhibit PIV. PWI is recorded in the proceedings (page 3) to have told the trial magistrate I ,()- \ ' "I said that I have got a receipt of this bicycle, I pray to tender the Receipt of the bicycle as PIV of this case." Then the trial magistrate proceeded to endorse the prayer as follows "The receipt of the bicycle is received as PIV" However, the trial magistrate did not apply his mind to the said receipt (Exhibit PIV) in his judgment otherwise he would have noticed obvious and clear anomalies on the same. My perusal of Exhibit PIV reveals the following shortfalls : the name of the buyer or owner of the bicycle differs 5 from the name of PWl. Whereas the name of PWl is Nesphori Bazil as per the proceedings (page 1), the name that appears in the receipt is of a person named Bazil Makyanja. Again this name in the said receipt differs with the name of the owner of the bicycle stated in the charge sheet, secondly, the receipt (Exhibit PIV) does not state from which shop or person was the bicycle bought. Again and very important in my considered view, PWl and PWl 11 in their evidence did not give details, descriptions or marks of the alleged bicycle for the purposes of the identification of the said bicycle (Exhibit "Pl") and to cross-check if the same matched with the details stated in the receipt in Exhibit "PIV". This shortfall also applied to the plastic which was also admitted by the trial magistrate in Exhibit "P 1". The trial magistrate did not apply his mind to these shortfalls in his judgment. In my considered view, as the.complainant (PWl) had alleged that the (0 Appellant had robbed his bicycle and at the same time the Appellant had alleged in his defence evidence that his bicycle was robbed by PWl and PWl 1, it was crucial for the prosecution side through its witnesses to have provided detailed descriptions of the bicycle that the Appellant was alleged to have robbed from PW 1. This was not done, instead the trial magistrate placed the burden on the Appellant and concluded that the details or descriptions that the Appellant had given differed from the bicycle that was tendered and admitted in the trial court as Exhibit "P 1". In my considered view, the Appellant should not have been convicted on weakness of his defence, the best that can be said that he managed to give details and descriptions of his bicycle which casted doubt on the strength of the prosecution's case. ·' Another point worth considering is the finding of the trial magistrate that PWl 11 had been cut by a sword. He stated the sword used to cut PWl 11 was tendered as Exhibit "PWl l" and the PF3 was tendered as Exhibit Pl 11. In the proceedings (page 20), PWl 11 is named as Bazil Makiama whereas in the charge sheet the person who is said to have been cut by sword on the head is one Bazil s/o Makiana. Are they one and the same person? This is not made clear in the judgment of the trial magistrate. However, one serious anomaly which renders the alleged PF3 redundant in the evidence of the prosecution is that it does not show which hospital or medical officer attended and treated PWl 11 who is said to have been wounded by the Appellant. It does not bear the signature of the medical officer who attended and treated PWl 11 for the cut wound allegedly 6 I inflicted upon him by the Appellant. The said evidence, therefore, should not have been received and acted upon by the trial magistrate to convict the Appellant. This finds support in terms of Section 240(1) and 240(2) of the Criminal Procedure Act, 1985. · 1 Having stated all the above aforesaid mltters, I find and hold that there was procedural irregularity in the proceedings in the trial court in that the trial magistrate did not comply with the mkndatory provisions of Section 192(3) of the Criminal Procedure Act, 1985 as above explained. Further, the prosecution evidence in the trial court had mahy shortfalls such that it did not prove the charge against the Appellant beyond reasonable doubt as required by the law. Therefore, the appeal has merit and I hereby accordingly allow the same. I hereby quash ahd I set a side the conviction and sentence imposed on the Appellant by the trial magistrate. The Appellant is hereby set free unless lawfully held under the~ law. It is so ordered. I F.A.R.JUND I JUDGE 24/7/2006 Date: 24/7/2006 Coram: F.A.R.Jundu,J For the Appellant: Present For the Republic: Miss Rugaihuruza, State ~ttomey CC: Mattiku I Court: Judgment delivered in the presence of the Appellant and in the 1 presence of Miss Rugaihuruza, learned State Attorney. 7