abel colmani another vs republic 2007 tzhc 104 5 october 2007

IN THE HIGH COURT OF TANZANIA AT MOSHI (DC) CRIMINAL APPEAL NO. 23 OF 2007 (Originating from ROMBO DISTRICT COURT CR. CASE N0.335/2006) 1. ABELCOLMANI 2. WENDELIN JUSTINE J ................. APPELLANT VERSUS REPUBLIC .................................... RESPONDENT JUDGMENT HON. S. E. MUGASHA. J The appellants were charged and convicted for armed Robbery contrary to section 287 A of the Penal Code C ap.16 The particulars of the charge are that, the appellants jointly and together, on 2nd July, 2006 at 6.30 hrs in Urauri Village within Rombo District in Kilimanjaro Region did steal cash money Tshs.80,000/=, one mobile phone NOKIA valued at Tshs. 120,000/=, one passport valued at Tshs.20,000/= and a voter’s card all total valued at Tshs.220,000/= the property of one Evance s/o Metter and immediately before such stealing did use actual violence to the said Evance /Metter in order to obtain the said Evance s/o Metter. The appellants pleaded not guilty to the charge of armed Robbery. The trial Magistrate relying on evidence paraded by the prosecution, convicted the appellants. The appellants aggrieved with the decision of the trial Court have appealed to this Court raising eight grounds which I have conveniently summarised into two grounds namely; failure by the prosecution to prove a charge against the appellants beyond any reasonable doubt, and the trial was flawed by procedural irregularities which vitiated the trial. The appellants appeared in person and the Respondent was represented by Mr. Maugo, learned State Counsel. The State Counsel submitted in favour of the appeal contending that, evidence paraded by the prosecution did not prove a charge against the appellants because the testimony of PW.1 who was the complainant was not substantiated by any other evidence. Moreover, the State Counsel submitted that the trial was flawed with procedural irregularities as the memorandum of undisputed facts was not signed by the appellants which connotes that memorandum was not read and explained to the appellants. Furthermore, the Doctor was not summoned to testify on the contents of PF which was tendered in court as Exhibit “P” “1” contrary to section 240 (3) of the Criminal Procedure Act, 1985. The grounds of appeal and submission by the State Counsel raise two issues which are for determination of the Court namely:- (1) Whether the prosecution proved a charge of armed robbery against the appellants. (2) Whether the trial was flawed with procedural irregularities which vitiated the trial. It is evident according to the available record of the trial that PW.1 the complainant stated in Court that on the fateful day PW1 in the company of one Alphonce Basil while coming back from exchanging money, was attacked by the appellants who injured him and took away his properties. In another instance, PW1 stated that his friend i.e. Alphonce Basil came at the scene when the first appellant beat PW.1 on the left eye. PW.1 tendered PF3 as exhibit P”1” in a bid to substantiate injuries sustained during the fateful incident. When PW1 was cross-examined by the 1st appellant stated and I quote, “When you called me aside, my friend was on the roadside and he came there when your held me. By neck “ With this proposition, PW.1 changed his story that he was struck by the appellants while in the company of Alphonce Basil. The variations in the testimony of PW1 indicate that he was not consistent in his testimony. Being the only prosecution witness his testimony raises a cloud of doubt which would have been cleared if Alphonce Basil who alleged to have witnessed the alleged incident appeared in Court to testify which renders testimony of PW1 to be uncorroborated. Moreover, if at all PW1 sustained injuries in the alleged incident as it seems to be in the PF3, then Doctor who attended PW1 and completed the PF3 would have been summoned to testify to the same effect which was not the case. Moreover, I have also noticed that, the PF3 is highly questionable as I shall soon demonstrate. The complainant claimed to have been attacked on 2nd July 2006 and the PF3 is dated 9/7/2006 addressed to the Doctor on duty of Tarakea indicating the complainant to have been assaulted while PW1 claimed to have been assaulted on 2/7/2006. Why did PW.1 wait for five days to elapse in reporting the matter to the police. This leaves a lot to be desired and infact it clouded the prosecution case with a series of doubts thus, weakening the prosecution case and subsequently failure to prove charges against the appellants. Apparently, the trial Magistrate did not consider the defence case which infact highly challenged the prosecution case. During the defence case, the 1st appellant stated that, on 2nd July 2006 he was not at the scene of crime but in Moshi were he had gone to sell beans and had to wait in Moshi up to 4/7/06 in order to be paid his money. This has been substantiated by DW.3. Moreover, when the 1st appellant was cross examined by the Prosecutor, he testified that he had a grudge with PW1, which was also substantiated by the 2nd appellant who also testified that PW.1 had a grudge with the 1st appellant. The 2nd appellant also successfully testified that on the fateful day he was not at the scene of crime but was at Usseri where he had gone to attend his sick grandmother from 28/6/2006 upto 5/7/2006. The prosecution did not challenge the prosecution witnesses and their testimony remained unchallenged which makes me to be satisfied that, the appellants were not at the scene of crime on the date in which PW1 was attacked. The appellants were not at the scene of crime on 2nd July 2006 and possibly that is why PW1 went to collect the PF3 on 9th July 2006, when the appellants were present in order to justify his fabricated claim. With the aforesaid trend of the prosecution evidence, and the fact that PW1 and the appellants were all businessmen, I am satisfied that, the criminal case which is a subject of this appeal was perpetrated by ill motives of PW1 against the appellants. This practice should not be condoned because it is absurd to invoke the process of dispensing with justice to victimise innocent people. Had the Magistrate considered defence testimony before arriving at a conclusion he would have arrived at a different finding thus preventing the abuse of the process of dispensing with justice. The appellants had successfully contradicted the prosecution case creating a shadow of doubt as to the genuiness of the charge of armed Robbery leveled against them. As such, the Magistrate faulted to convict the appellants in the absence of sufficient prosecution evidence to prove a charge of armed robbery against the appellants. I am satisfied that the trial was flawed with procedural irregularities as the it is not possible to establish from the record as to whether the memorandum of undisputed facts was read over and explained to the appellants as that memo was not signed by the appellants. This was against section 192(3) of the Criminal Procedure Act, 1985. In the case of Benjamin Holela Vs R(1992) TLR the Court held inter alia that the non compliance of that mandatory provision of the law constituted a procedural irregularity which vitiated the trial. Moreover, section 240(3) of the Criminal Procedure Act, 1985 was also not complied with because following the tendering of PF3, appellants were not informed of their right to have the Doctor summoned and cross examined on the contents of PF3 which I have also found to be questionable In the circumstances the appeal is meritorious. I allow the appeal, quash conviction and sentence and order the appellants to be released forthwith. Right of appeal explained. S. E. MUGASHA JUDGE 5/10/2007 Judgment delivered in the presence of the appellants and Mr. Rwegerela, learned State Attorney for the Respondent. JUDGE 5/10/2007