denis antony magabe vs republic 2006 tzhc 185 25 august 2006

IN THE HIGH COURT OF TANZANIA AT IRINGA APPELLATE JURISDICTION (DC) CRIMINAL APPEAL NO. 1 OF 2006 (Original Criminal Case No. 421 of 2004 of the District Court of Iringa District at Iringa) DENIS ANTONY MAGABE................... APPELLANT VERSUS THE REPUBLIC........................... RESPONDENT JUDGEMENT KAIJAGE. J. In Iringa District Court Criminal Case no. 421 of 2004, the appellant, DENIS ANTONY MAGABE, and another person recorded to have absconded before the trial was finalised, were accused persons jointly charged with robbery with violence c/ss 285 and 286 of the Penal Code. Following a full trial, the appellant was found guilty and convicted on that charge. Consequently, he was sentenced to serve a term of fifteen (15) years of imprisonment. He was aggrieved, hence the present appeal. l The present appeal has its background which could be stated, briefly, as follows; On 16th November, 2004 at 1.30 p.m. or thereabout, the appellant and his co-accused are said to have forcibly and permanently deprived Joyce Lyimo (PW.l) of her cellular phone, make 'Sony Arkson' valued at TShs.90,000/=. In her testimony, PW.l stated that she had to surrender her phone on account of the fact that the appellant land his co-accused were armed with a knife and a screw-driver with which they threatened to assault her. Immediately before the robbery, PW.l is said to have reported to the police authorities similar criminal incidents perpetrated on the same day by the appellant and his co-accused against other victims who were out boozing in the vicinity of a grocery then operated by PW.l in Iringa Municipality. It was contended, for the prosecution, that the appellant and his co-accused were displeased by PW.l's conduct of reporting to the police. In retaliation thereof, they committed the offence with which the appellant was convicted of. Two days after that incident i.e. on 18th November, 2004 at around mid-night, No. E. 3647 D/Sgt. Nicholaus (PW.2) in concert with other police officers arrested the appellant and his co-accused at a place commonly known as Ipogolo near Orlyx. They were subjected to a thorough search. A knife, a screw-driver and four (4) mobile phones are said to be articles which were seized from them. The next day, at about 10.00 p.m., PW.l reported at the police station whereat she named the appellant and his co-accused as persons responsible for stealing her mobile phone. Further police investigations culminated in taking the appellant and his colleague to court to answer a charge with which the former was finally convicted of. In his defence, the appellant stated that the charge which he was called upon to answer was concocted and that the evidence which the prosecution relied upon was fabricated. He contended that after they were arrested, PW.2 and other police officers demanded that they be shown guns linked to previous crimes committed in Iringa Municipality. Appellant and his co-accused denied knowledge of such weapons. Dissatisfied with that response, PW.2 is said to have threatened to prefer serious criminal charges against the appellant and his co-accused including, but not limited to that which the appellant was convicted of. Indeed, the appellant flatly denied to have stolen PW.l's mobile phone, just as he denied the seizure of four (4) mobile phones from his person. In its judgement, the trial court was satisfied that the evidence as told by PW.l was credible. It found the case for the prosecution proved beyond reasonable doubt as against the appellant. 3 The present appeal is grounded on the following: 1. That, the prosecution did not prove its case beyond all reasonable doubts in particular when it failed to call other eye-witnesses alleged to have been customers in PW.l's grocery when the robbery is alleged to have taken place, the trial court failing to draw an adverse inference against the prosecution. 2. That, the stolen mobile phone was not tendered in court for no known reasons. 3. That, the defence case was not accorded due consideration. Having carefully perused the trial court's record, I am settled that the grounds upon which the present appeal is based are not without substance. I propose to deal with the said grounds hereunder together. It has been submitted on behalf of the appellant, that PW.l having categorically stated in her evidence that her mobile phone was forcibly taken in the presence of other persons whom she named, the prosecution ought to- have called those persons as witnesses for its side. Aware of the principle that proof of a case does not depend on the number of witnesses, learned counsel for the appellant further submits that in the absence of evidence from persons alleged to have witnessed the robbery, it is not safe to leave appellant's conviction undisturbed. Responding to that submission, learned State Attorney who appeared for the respondent/Republic emphatically submitted that the evidence of PW.l standing alone does suffice to sustain appellant's conviction, arguing that a bulk of witnesses is not required to prove a particular fact or facts in issue, the Evidence Act, 1967 having not provided for such a requirement. Admittedly, S. 143 of the Evidence Act makes it clear that unless other law provides otherwise, no particular number of witnesses shall in any case be required for the proof of any fact. It is perhaps on the basis of this legal provision that the trial court in its judgement states the following, among other things; "I believe what PW.l said in court is what happened to her ... The fact that PW.l did not bring all persons who were at the grocery while being robbed of her mobile phone, I think that was not her duty ... In fact it is not necessary in law for all persons who witnessed the incident to be brought in court as witnesses, only part of them suffice if they can prove the disputed facts." 5 The principle of law enshrined in the Evidence Act, 1967 was certainly properly stated by the trial court in its judgement. Similarly, the trial court was entitled to assess the credibility of witnesses who testified before it and to arrive at its own conclusions. However, this being the first appeal, this court cannot excuse itself from the task of weighing conflicting evidence appearing on record and drawing its own inferences and conclusions. In so doing, it has to bear in mind that it has neither seen nor heard the witnesses. In her testimony, PW.l told the trial court that the appellant and another committed the robbery in the presence of her immediate assistant, Semeni Atu, and her customers she named as Matya Makofia and Mr. and Mrs. Davy. Going by the record, it appears that none of them testified before the trial court. PW.l's evidence further has it that the robbers threatened her with a knife and a screw­ driver. PW.2 stated in his evidence that he arrested the appellant and his colleague two (2) days after the robbery and that four mobile phones, a knife and a screw-driver were seized from them. In the course of trial, none of the seized articles was tendered as an exhibit. The evidence of PW.l and PW.2 should be weighed against that of the appellant. In his defence, the appellant flatly denied to have perpetrated the robbery. He contended 6 that PW.l and his colleague were lovers and the former had harboured a grudge against the latter following subsequent misunderstandings between them. He added that PW.l was also not happy with both of them for their abstinence from having drinks in her grocery. It was indeed appellant's defence that their arrest had nothing to do with the alleged robbery of PW.l's mobile phone, asserting that the reason for their arrest was pegged on suspicion that they were involved in prior robbery incidents in Iringa Municipality. He also stated that nothing was seized from them at the time when they were arrested. Looking at the judgement of the trial court as a whole, it seems to me that the evidence for the prosecution side was dealt with on its own with little regard to the appellant's defence. The appellant having denied any involvement in the robbery and having asserted that the incriminating evidence against him was fabricated, it was imperative for the trial court, when assessing and evaluating the evidence before it, to look for credible evidence independent of that which PW.l put forward. Once the evidence of those PW.l claim to have witnessed the robbery of her mobile phone is excluded, the possibility that she might have fabricated incriminating stories against the appellant becomes glaring. I remain unconvinced that the trial court found such evidence absolutely unnecessary. 7 It is also in the record of the trial court that the prosecution made an attempt to link the allegedly seized items to the robbery of PW.l's mobile phone. However, the evidence of PW.2 does not go beyond mere statements of having seized a screw-driver and a knife from the appellant and his colleague. The appellant having stated in his defence that such articles and four mobile phones were not seized from them, a doubt arises as to why the prosecution did not produce and tender in evidence such articles. Although the non-production of the said articles did not go to the admissibility of PW.2's testimony, the trial court ought to have attached little weight to that evidence in determining the culpability of the appellant. In my view, the non-production of the articles allegedly seized, effectively rendered the testimony of PW.2 weak, suspect and unreliable. It is for this reason that I feel it was not impossible for PW.2 to concoct incriminating stories against the appellant. A conviction in a criminal trial can only be based on the weight of the actual evidence adduced and not on any assumption, fanciful theories or attractive reasoning. In the matter at hand, I find the evidence adduced by the prosecution witnesses as too weak to sustain appellant's conviction on a serious charge of robbery with violence. In other words, the prosecution did not discharge the burden of proving a charge against the appellant on the standard required in criminal cases. Accordingly, the appeal is allowed. The conviction entered and the sentence passed by the trial court against the appellant are consequently quashed and set aside respectively. The appellant is to be set at liberty forthwith unless otherwise lawfully held. of Mr. Daud, learned State attorney for the respondent/Republic, Mr. Onesmo, learned counsel for the appellant and the appellant. 9