emanuel enezael elipokea vs republic 2007 tzhc 222 23 march 2007

IN THE HIGH COURT OF TANZANIA AT MOSHI (DC) CRIMINAL APPEAL NO. 49 OF 2005 (C/F DC HAI CRIMINAL CASE NO. 392/2004) EMANUEL ENEZAEL ELIPOKEA .... APPELLANT VERSUS THE REPUBLIC................................... RESPONDENT JUDGMENT HON. JUNDU, J. The Appellant who was the 2nd accused person in the trial court together with the 1st accused person who is not an appellant in this appeal were charged with Armed Robbery c/s 285 and 286 of the Penal Code, Cap. 16 of the laws as amended by Act No. 10/1989. The particulars of the offence were that the Appellant and his fellow co-accused were jointly and together th • i charged on 16 day of September, 2004 at about 19.45 hours at Kerali Chini Sanya Juu Village within Hai District in Kilimanjaro Region, did steal cash money Tshs.470,000/=, one hand set make Motorola 191 valued at Tshs. 100,000/=, one hand set make Erickson valued at Tshs.54,000/=, one Jacket valued at Tshs,5,000/=. All total valued at Tshs.629,000/= the property of one Plasidi s/o Michael Kimaro and immediately before or immediately after the time of such stealing did use shotgun to Plasidi Michael Kimaro in order to obtain or retain the stolen property. In order to prove its case against the Appellant and his co-accused, the prosecution, in the trial court had called three witnesses. PW .l, the victim/complainant in his evidence on record stated that on the material night that is on 16th day of September, 2004 at 5.00 p.m near the gate of his house while coming from his shop he was caught and fought by two youths who took away his Tshs.470,000/=. He was unconscious and taken to KCMC hospital. He was injured on the leg and on the head. PW.2, the wife of PW. 1, in her evidence on record stated that on the material day, that is on 16th day of September, 2004 at 6.45.p.m. she was at home, she heard cries of PW. 1, her husband outside the gate of their house, she went there and found three youths including the Appellant. She identified the Appellant as he was holding a gun pointing it to her and that the three youths entered the house and took one mobile phone, a jacket worth at 1 Tshs.629,000/= and cash money Tshs.400,000/= and went away after firing a bullet in the air. Some neighbours came and took PW.l to hospital and according to PF3, Exhibit P. 1 it was Kibong’oto Hospital. PW.3, was the police investigator from Sanya Juu Police Station. In his evidence on record stated that on the material day having been assigned the file, he went and found PW. 1 admitted at K.C.M.C. hospital bleeding in the nose and his right leg was broken. He went to the scene o f crime, he found blood in the area where PW. 1 was fought, he picked a bullet shell of a shortgun (Exhibit “P.2”) used by the bandits on the material day. On 19th September, 2004, they arrested the accused persons, searched their house where nothing was found and took them to Police Station where they charged them accordingly. On the other hand, the Appellant (DW.2) in his defence evidence on record told the trial th magistrate that on 18 day of September, 2004 he was m Sanya Juu market from 9.00 am to 6.00 pm, selling his small goods, a policeman came and arrested him, escorted him to a Police Station and charged him together with his fellow co-accused. They were searched in their houses but nothing stolen was found inside. His wife, DW.2, in her evidence on record had told the trial magistrate that on Thursday, 17th day of September, 2004, the Appellant had gone to his business and returned home around 6.00 pm and that around 8.00 pm she heard gun bullets in the air. Afterwards she was informed that robbers had robbed goods in the home place of P W .l. Having heard the evidence of the prosecution witnesses and that of the defence witnesses, the trial magistrate in a very short finding in his judgment stated as follows - “ The issues to be decided are whether accused persons robbed goods in the home place of Mr. Placid Kimaro as alleged in the charge sheet. According to the testimonies of PW .l, PW.2, and PW.3 proved, accused persons are the people who were in a group of bandits who robbed Plasid Michael Kimaro his goods as alleged in the charge sheet, therefore, I convict them under Section 285 and 286 of the Penal Code as amended by Act No. 10 of 1989.” Being aggrieved by the conviction and sentences, the Appellant has appealed to this court listing six(6) grounds of appeal in his Petition of Appeal he filed in this court. However, my close study of the said grounds of appeal, they all centre on whether the prosecution side had proved the charge against the Appellant in the trial court beyond reasonable doubt. On the date 2 of hearing, that is on 7/3/2007, the Appellant was in person and simply stated that what he had stated in his grounds of appeal in his Petition of Appeal sufficed to be his arguments in pursuance of his appeal before this court. He prayed to this court to adopt his grounds of appeal as his arguments and that the appeal be allowed, conviction and sentence be quashed and set aside and he be released from the prison forthwith. On the other hand, Miss Rugaihuruza, learned State Attorney who acted for the Respondent/Republic in her submission did not support conviction and sentence imposed on the Appellant by the trial magistrate. As I have already stated, the main issue in the grounds of appeal filed by the Appellant is whether the prosecution witnesses in the trial court in their evidence had proved the charge against the Appellant beyond reasonable doubt. In his grounds of appeal, the Appellant contended that the evidence of the prosecution witnesses was full of contradictions and that he was not identified by the prosecution witnesses. Miss Rugaihuruza, learned State Attorney in her submission conceded, to the Appellant’s contention let the court proceed to consider and determine the issue. The first contradiction is to which hospital was the complainant, PW.l taken and admitted having been injured at the scene of crime. PW.l in his evidence on record had told the trial magistrate that having been ambushed and beaten by the two bandits, he lost consciousness and was taken to KCMC for treatment. However, his evidence is contradicted by PW.3, the police investigator of the case under appeal, who in his evidence stated that PW. 1 was admitted at Kibong’oto hospital and not at KCMC. A further contradiction is whether PW.l was actually injured or not. PW. 1 in his evidence on record had told the trial magistrate that having been injured by the bandits he was taken to Police and given PF3 which he tendered in the trial court and was admitted as Exhibit PI as evidence that he was injured by the bandits at the scene of crime. However, when PW.l was cross - examined by the Appellant, he stated that he was not injured, the one who was injured was his wife, that is PW.2. But the latter in her evidence on record did not state that she was injured in the incident. The second contradiction is at which time did the incident take place. PW. 1 in his evidence on record had told the trial magistrate that the incident, that is the robbery had taken place at 5.00 pm. However, this evidence of PW.l is contradicted by the evidence of PW.2 on record who told the trial magistrate that the incident took place at 6.45 pm. In my considered view, this difference of almost two hours casts doubt as to what time the incident took place. 3 Thirdly, another issue, which is important, is whether the Appellant was identified at the scene of crime. PW. 1 in his evidence on record did not name the Appellant as being one of the youths who caught and beat him near the gate of his house where he was allegedly ambushed by the bandits. PW.2 in her evidence on record did not name the Appellant as being among the youths who had ambushed PW. 1 and robbed him. PW.2 in her evidence on record had told the trial magistrate that she had identified the first accused who is not an appellant in this appeal. Therefore, I hold that there is no evidence on record to show that the Appellant was identified at the scene of crime. In the circumstances, I hold that the prosecution evidence at the trail court did not prove the charge against the Appellant beyond reasonable doubt. In addition, the trial magistrate just made a general conclusion that in his judgment that the accused persons, that is including the Appellant were the people who were in a group of bandits who robbed PW.l without evaluating the evidence of the prosecution witnesses that led him to the said conclusion nor did he consider the evidence of the defence witnesses. Before concluding this judgment, I wish to point out a procedural irregularity which is in the proceedings of the trial court which is so fundamental to the validity of the said proceedings. There was a complete non-compliance of Section 192 of the Criminal Procedure Act, 1985 which mandatorily requires the trial court to conduct a preliminary hearing before commencement of trial to determine matters which are not in dispute and draw a memorandum of such matters which is to be signed by the accused person, his advocate if any, and the public prosecutor. The effect of non-compliance of Section 192 (1) - (5) of the Criminal Procedure Act, 1985 is that all the subsequent proceedings in the trial were null and void. In the upshot, the appeal filed by the Appellant is meritous. I hereby allow the same. I quash and set aside the conviction and sentence imposed on the Appellant. The Appellant is hereby set free unless lawfully held under the law. It is so ordered. F.A.R. JUNDU JUDGE 23/3/2007 4 Right of Appeal Explained. F.A.R. JUNDU JUDGE 23/3/2007 23 .3.2007 Coram: F.A.R. Jundu, J. For the Appellant: present For the Respondent: Mr. Maugo, State Attorney C/C: Muyungi 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 23/3/2007 AT MOSHI 5