alex byarugaba another vs republic 2007 tzhc 101 15 august 2007

IN THE HIGH COURT OF TANZANIA AT IRINGA APPELLATE JURISDICTION (DC) CRIMINAL APPEAL N O . lO C / F ll OF 2007 (Original Criminal Case No. 328 of 2003 of the District Court of Iringa District at Iringa) 1. ALEX BYARUGABA APPELANTS 2. BARAKA MASASI VERSUS THE R E P U B L IC .......................... RESPONDENT JUDGMENT WEREMA. J . The appellants, Alex Byarugaba and Baraka Masasi were arraigned in the District Court of Iringa. They were charged with the offence of Robbery with Violence c/s 285/286 of the Penal Code [Cap 16R.E 2002]. The third person who was the first accused, MEJA MTENGA has not appealed. It is alleged that he absconded from lawful custody of prison authorities after conviction. The charge l showeth that a litany of items including a bicycle were stolen from one Onesmo Msola on 23.9.2003 at or about 19.30. p.m. The said Onesmo Msola was beaten up before his goods were taken. The victim is a peasant and has a small itinery business at Hula, in Kilolo Administrative District. Three people were suspected. They were prosecuted at the District Court and all convicted on what the learned Magistrate referred to as water-tight evidence. Two of the convicted persons, the first Appellant Alex Byarugaba; and the second Appellant, Baraka Masasi have appealed to this court attacking the decision of the District Court. They have appeared before me ready to argue their appeal. I gave the chance to Mr. Mmbando, the learned State Attorney, to address the court. He informed the court that the prosecution do not support the conviction of the appellants but support their grounds of appeal. The learned State Attorney pointed out the basis of the support to be:- a) That the prosecution side did not prove the case against the appellant beyond reasonable doubt. They did not even do so to a person who has not appealed; 2 b) That the identification of the appellants and the other convicted person was a dock identification. The complainant, PW1 did not describe how he had identified all of them; c) That the items alleged to have been stolen from the complainant were not identified at all. The complainant did not mention what make it was. The charge sheet show it was an Avon-m ake but the bicycle which was retrieved from the 1st accused was of a phoenix make. Again, Exhibit P3 which is a record of search indicated that what was retrieved from that house was one frame of a bicycle. It is uncertain, in this regard, to connect any of the persons with the offence, * d) According to evidence PW2, the room in which the properties were found is rented out to Meja Mtenga, who was the first accused. The appellants did not reside there according to his evidence. He did not know them. I agree with the learned State Attorney and I commend him for his sense of Justice. I think all organs of the state should take a tough no-nosense attitude towards crime. We should all of us combat crime strenuously. However, no matter how appealing the com m itm ent to combat crime may be to the public it should be guided always by established principles of impartiality based on nothing but justice and the law. In this case, the learned Resident Magistrate misdirected himself on principles of criminal justice. First, that the duty to establish the guilt of an accused person lies with prosecution. That is a principle that no judicial minded officer can depart from. Secondly, that the burden * of the prosecution is to prove the guilt of an accused person beyond reasonable doubt. That is the requirement of criminal law which is not only a statutory right but an entrenched constitutional right under Article 13 of the Constitution of United Republic of Tanzania, 1997. It is true that the complainant was roughened up by people. It is, perhaps, true that goods and his bicycle were forcibly taken from him. But, from the evidence, the identification of those who were arraigned in the District Court, was not sufficient and to the standard required by law. The prosecution did not lay enough ground for proper identification of the accused persons including the two appellants. The dock identification was not enough. I also agree with the learned State Attorney that contrary to what the learned Resident Magistrate said to be water-tight, the stolen bicycle was not identified beyond reasonable doubts. The evidence of PW2 was that what was retrieved after search in the room of Mela Mtenaa was a bicycle of a phoenix make. The charge mentions the Avon Make. Further, another paradox is Exhibit P3 which shows that what was gotten from that house was a frame of a bicycle. If the learned Resident Magistrate had taken precious time to review such evidence he would have realized that it had many porous holes for the water to escape. What the evidence show is that the stolen properties were not identified and the appellants and the other accused had raised sufficient doubts on the prosecution evidence, doubts which were not answered. I therefore quash the conviction entered against Meja Mtenga, Alex Byarugaba and Baraka Masasi by the District Court. I set aside the sentence thereof and do order for the immediate release of the appellants unless are held in prison for a lawful cause. F.M.Werema, JUDGE ^ 15^ August, 2007