zacharia so adamson vs republic 2007 tzhc 146 8 march 2007

IN THE HIGH COURT OF TANZANIA AT IRINGA APPELLATE JURISDICTION (DC) CRIMINAL APPEAL MO. 9 OF 2006 (Original Criminal Case No. 179 of 2005 of the '• District Court of Iringa District at Iringa) Before: K.A. Majinge, D.M. ZACHARIA S/O A D A M SO N .................APPELLANT VERSUS THE R E P U B LIC ............................. RESPONDENT JUDGEMENT WEREMA. J . The appellant, Zacharia s/o Adamson, was arraigned at the District Court of Iringa District at Iringa for the offence of Robbery with Violence contrary to sections 285 and 286 of the Penal Code, Cap 16 R.E. 2002. He was convicted and sentenced to a term of 15 years imprisonment. He is appealing to this court against both conviction and sentence. The fate of the. accused begun on 12th May, 2005 at about 10.00 a.m. at Gangilonga area within the precincts l of Iringa Municipality. At or about that time he is alleged to have stolen a mobile handset phone, the property of Miss Jacqueline d/o Rumato, a teacher, who was the complainant at the lower court. The interesting story is that as Miss Jacqueline was answering a phone call, the Appellant came from behind her and kicked her both legs, in what is colloquilly, in Swahili slang known as kupiqa mtama, whereof she fell down. The Appellant grabbed from her the mobile handset that she was talking into. But the lady did not let it go without resistance. She grabbed the handset too. The Appellant and the complainant had their both hands on the phone and each, like in the play "caucasion chalk Circle" by Bertolt Bretcht tried to have an upper hand. The Appellant thought it was ideal to bite her. The Appellant bite her hand finger. She succumbed to his new technique and she let go her handset But the complainant raised a distress alarm in-time and members of the public swiftly came to her rescue. The Appellant was apprehended. He had the handset. He was taken to Police Custody and later charged with robbery. While at Police custody, the Appellant made a cautioned statem ent before D.2069 D/Cpl. Onesmo, who at the subordinate court testified as PW.2 for the prosecution. In that statement, which was tendered and admitted as Exhibit P.3, the Appellant admitted unequivocally to have committed the offence and blamed satan for moving him. At the trial and on appeal, the Appellant retracted that statement on the basis of threats inflicted on him by the Police. He is also repudiating it on the grounds that it was already made by the Police and only ordered to sign it. The Appellant's version on the events leading to his apprehension is that he walked by Miss Jacqueline and involved her in sweet talk. He wanted her to be his girl-friend. As they were talking, he asked her to give him her handset so he could recharge it for air tim e from his recharge card. According to him, Miss Jacqueline handled to him the handset and the Appellant recharged it for air­ time. All was well. Then, a taxi-driver gentleman came in the scene, who according to the Appellant was Jacqueline's lover. It was, according to him, the taxi-driver who shouted, raising the alarm for a thief and not Miss Jacqueline. And further, that it was the taxi-driver who took the handset from the Appellant's pockets and used it to call the police. That is in brief the background of the case. The Appellant pleaded not guilty to the charge whereupon the prosecution" called two witnesses, Miss Jacqueline d/o Rumato testified as P W .l and D.2069 D/Cpl. Onesmo, a police officer who took the cautioned statement as PW.2. Three Exhibits were tendered and admitted in court in favour of the Prosecution. They are the Medical Examination Report Exhibit P . l. A mobile phone, Exhibit P.2 3 all tendered by the complainant and a cautioned statement, Exhibit P.3 which was tendered by PW.2 for the prosecution. The defence had the Appellant as a sole witness. At the end of the trial, the Appellant was convicted as charged and sentenced as stated above. He was ordered to compensate the complainant in the sum of Shs.20,000/= (Shillings twenty thousands only). In this appeal, the Appellant has raised five substantive grounds. All are almost similar. I will deal with these grounds as put by him and in the order he argued his appeal. He started with ground No. 4. The nature of the complaint is that the blood-stains in the mobile phone Exhibit P.2 was not medically identified to be that of the complainant's group. As such it cannot, with certainty, be said that the complainant was injured by him. That blood stains could be his because he was beaten up by members of the public while in possession of the phone. Here, the accused is admitting that the phone was in his pocket. The basic issue is not the blood stains on the handset but how it went into his pocket. I do not, and I am not impressed, that the situation of his guilt will be less if the blood stains were actually his. This is a story not worthy believing. The second issue that he raised in this appeal was that there was no independent witness in this case. According to* him, it was a day light occasion. If he had robbed the complainant people would have seen him. In my view that ground combines grounds number 1 and 3. I think three grounds may be consolidated. I will therefore treat ground 1,3, and 5 together. According to his own evidence, the complainant was a total stranger to him. It is incomprehensible for her to gain confidence and trust of the appellant in the manner that the appellant wanted this court to believe him. The trial court disbelieved him. I do not see any loophole in evidence on record to depart from the Learned Resident Magistrate decision. It is not true that the appellant received the handset phone freely from complainant. As to grounds 1, 3, and 5 of the Petition of Appeal, on a proper analysis of the evidence of P W .l and PW.2, I am settled in my mind that the Learned Resident Magistrate was entitled to arrive at a decision he arrived at. First, the Appellant's retraction of the statement on one hand and his repudiation on the other hand, are of no effect. The issue, in case of retraction or repudiation, is the credibility and reliability of a witness who took the cautioned statement. In the instant case, the court believed PW.2 for th e ' persecution. The court may have been satisfied with his demeanour, credibility and reliability. The court found as a fact that the Appellant made that statem ent before PW.2 and that it was voluntarily made. I do not find any new ground to interfere with that finding. 8/3/2007 Coram: Werema, J. Appellant: Present in person Respondent: Mr. Mbando, State Attorney C/C: Mr. Charles Judgement read in Kiswahili in the presence of the Appellant and Respondent's Counsel. 7