alphonce mafala tesha vs republic 2007 tzhc 373 31 october 2007

IN THE HIGH COURT OF TANZANIA AT MOSHI (DC) CRIMINAL APPEAL NO. 34 OF 2006 [ORG. DC ROMBO CR. CASE NO. 159/2005] ALPHONCE MAFALA TESHA--------- APPELLAN. VERSUS THE REPUBLIC--------------------------- RESPONDENT JUDGMENT HON. JUNDU, J. The Appellant, in the trial court, was charged with Armed Robbery c/s 285 and 286 of the Penal Code, Cap, 16 Vol. 1 of the laws as amended by Act No. 10 / of 1989 in the first count. The particulars o f the offence were that the Appellant • th together with another accused person (not an appellant herein) on the 11 day of April, 2005 at about 01.00 hours at Kirongo Chini Village within Rombo District in Kilimanjaro Region jointly and together did steal different shop items worth Tshs.2,500,000/= the property of one Gasto Leonce and immediately before the time o f such stealing did use a panga in order to obtain the said shop items. In the second count, the Appellant was charged with Arson c/s 319 (a) of the Penal Code, Cap. 16, Vol. 1 of the laws. The particulars of the offence were that the Appellant and the said other Accused person on the same date, time and place above mentioned after having stolen from the said shop did willfully and unlawfully set fire to the said shop the property o f the said one Gasto Leonce. The trial magistrate having heard the evidence o f the prosecution witnesses and the defence witnesses, he found the Appellant guilty of the charged offences and convicted him accordingly. He convicted him to 30 years imprisonment on the first count, that is on the Armed Robbery and to 5 years on the second count, that is on Arson. He ordered the sentences to run concurrently. In short, the evidence of the prosecution witnesses in the trial court was that on the night o f 11/4/2005 at 01.00 hours, the shop of PW .l, the complainant was robbed and then set on fire. The Appellant and the other accused person who was his concubine were the suspects. Some of the stolen items were found in the house of the other accused person (DW.2) on the second day but according to PW.5 in his evidence the said items were brought to the said house by the Appellant at night during material date. PW.5 was the son o f DW.2. In his defence evidence, the Appellant denied having committed the offence. He alleged that on 12/4/2005 while at his pombe shop one person in the name of Valerian Paulo sent two boxes there for safe custody as he alleged he was taking his bicycle to a bicycle repairer. He contended in his evidence on record that as the pombe shop had finished selling pombe, he took the two boxes to the home of her concubine, the other accused person (the then 2nd accused) for custody. At the same time, the other accused in her evidence on record had told the trial magistrate that on the alleged night the boxes were sent to her house she was admitted at hospital from 8/4/2005 up to 12/4/2005 as her child was sick. j Having been aggrieved by conviction, sentence and compensation order, the Appellant has appealed to this court listing four (4) grounds o f appeal in his Petition of Appeal namely (1)That, the learned trial magistrate grossly erred in law and fact in convicting the Appellant with the offence of Armed Robbery and Arson in the absence o f sufficient evidence in support of the said charge. (2)That, the trial magistrate erred in law and fact when he believed the evidence of PW.5 a child of a tender age while his confession could be coached evidence neither was his testimony corroborated by any evidence in the material particular. Corroboration of such evidence is insisted in Section 127(3) o f the Evidence Act, 1967, that is where evidence is received by virtue o f Section 127 (2) and is not corroborated by any other material evidence in support of its implication the accused the court may warn itself of dangers o f acting on such evidence before convicting the accused. The trial court did not do so. (3)That the trial magistrate erred in law and fact when he wrongly compromised that the Appellant willingly wrote the confession statement on which he admitted the offence while the Appellant had retracted the said confession statement hence in une with Section 27(1) o f the Evidence Act, 1967 the trial magistrate ought to have conducted trial within trial to ascertain the voluntareness of the purported confession statement. (4)That, the trial magistrate erred in law and fact when he failed to note as a fact that the stolen properties were brought to the Appellant by Valerian s/o Paulo on 12/4/2005 on the reason that his bicycle had mechanical fault. Since the offence was committed on 11/4/2005 doctrine o f recent possession does not have effect to the Appellant hence there had been a span o f time for the culprits to have managed to arrive to the kiosk of the Appellant. In the Petition of Appeal, the Appellant has prayed to this court to allow the appeal, quash and set aside conviction and sentence and order his release from the prison. On 4/10/2007, the appeal was heard by this court. The Appellant simply stated that what he had stated in the grounds of appeal sufficed to be his arguments in pursuance of his appeal before this court. He so prayed to adopt. On the other hand, Mr. Maugo, learned State Attorney supported conviction and sentence but prayed for retrial of the Appellant on the ground o f procedural irregularities in the proceedings of the trial court which in his view had rendered the said proceedings null and void. In the first ground of appeal, the Appellant, contended that the trial magistrate erred in law and fact in convicting him with the charged offences without sufficient evidence in support of the said charges. However, Mr. Maugo, learned State Attorney in his submission revisited the entire evidence of the prosecution witnesses from PW. 1 to PW.6 and firmly argued that based on the said evidence, the prosecution had proved the charges against the Appellant beyond reasonable doubt. Indeed, the trial magistrate had evaluated properly the said evidence in convicting the Appellant. On page 2 of his typed Judgment, the trial magistrate stated - “Now on considering the whole evidence submitted to the court, it is clear as per evidence of PW.5 a boy aged 14 years old said on the night saw the first accused and other people taking different shop items to their house. Before recording his evidence I first tested his credibility and I found that (i) he possessed o f sufficient intelligence and (ii) he knows has duty or obligation of telling the truth. Section 127(1) (2) complied with. The next day PW.5 told the court how the accused one who is his step father required him to carry things in a bag and send to his pombe shop and these things were returned to their home when the first accused was arrested by the village leaders”. Further, at page 3 o f the said Judgment, the trial magistrate stated further - “The defence of the first accused that he was not involved in the armed robbery is very well encountered by the evidence of PW.5 and PW.6. The statement of the first accused exhibit P2 clearly shows the first accused was fully involved in the robbery. I observed the demeanor o f the prosecution witnesses when were giving evidence in court. They told the court of what they saw and knew about the robbery. The witnesses were straight forward when giving evidence in court. I took them as witnesses of truth as I did not see any reason as to why they should decide to pick a lie against the accused persons. Moreover, the first accused was found with some of the stolen shop items day which was only a few hours after the robbery was committed at the shop of the complainant”. Having read the evidence on record, I am in fully agreement with the evaluation of the evidence by the trial magistrate as above quoted which in my considered view fully proved that the Appellant had committed the offences he was charged with. Indeed, it is clear to me that the said evidence proved that the doctrine of recent possession in respect of the stolen properties was well placed against the Appellant. Therefore, I agree with the submission o f Mr. Maugo, learned State Attorney that the prosecution based on the evidence o f its witnesses, it had proved the charges against the Appellant beyond reasonable doubt hence the trial magistrate was perfectly correct to convict the Appellant based on the said evidence. The second issue that needs consideration and determination by this court is on procedural irregularities which Mr. Maugo, learned State Attorney argued that the same rendered the proceedings of the trial court null and void. First, Mr. Maugo contended that the trial magistrate did not comply fully with the requirement o f Section 127(2) o f the Evidence Act, 1967 in respect of PW.8 who was aged 14 years old hence a witness o f tender age. The said provision o f law requires that a voire dire examination should be done before evidence of such witness is received and acted upon by the court. Now, the record of the trial court shows that the trial magistrate recorded to have done the said test. However, Mr. Maugo, learned State Attorney argued and I quite agree with him upon close and careful reading of the said proceedings that the trial magistrate did not record the questions that he had put to the said witness and the answers given by the said witness to the said questions all of which are mandatorily required to be stated in the proceedings. The said shortfall made the voire dire examination conducted by the trial magistrate incomplete and improper in which case the same should not have been used by the trial magistrate to convict the Appellant. This finding settles ground two o f the appeal. Secondly, Mr. Maugo, learned State Attorney stated that the trial magistrate did not comply with Section 192(3)ofthe Criminal Procedure Act, Cap, 20 R.E. 2002 in particular he did not cause the Appellant to sign the memorandum o f agreed facts the same having been read over and explained to him. However, upon close perusal of the proceedings o f the lower court, I am fully satisfied that the Appellant signed the said Memorandum o f agreed facts hence the trial magistrate had fully complied with the said provision of law. Thirdly, Mr. Maugo, learned State Attorney brought to the attention of this court that Section 240(3) o f the Criminal Procedure Act, Cap. 20 R.E. 2002 was not complied with by the trial magistrate. The said provision o f law casts a duty on the trial magistrate to remind the accused person of his right to request the trial court to summon the medical person who has prepared a medical report which has been tendered and admitted in the trial court so that he can cross examine him on the said medical report. In this respect, Mr. Maugo contended that the trial magistrate did not so do when he admitted the PF3 - Exhibits P.3 and P4 from PW.6. I have careful checked the proceedings of the trial court (page 6) in respect o f the alleged contention. I am satisfied that the trial magistrate did not inform the Appellant of his right stated in the said provision of law as above explained. The said omission made the said exhibits of very little value to be acted by the trial magistrate. In the upshot, though there was sufficient evidence on the prosecution side in the trial court to prove the charges against the Appellant and to convict him, the aforesaid procedural irregularities had vitiated the proceedings of the said court rendering them null and void. Therefore, the appeal succeeds. I hereby nullify the proceedings and the judgment of the trial court. However, I hereby order the Appellant to be retried by another competent magistrate in the lower court. It is so ordered. F.A.R. JUNDU JUDGE 31/10/2007 Right o f Appeal Explained. F.A.R. JUNDU JUDGE 31/10/2007 31.10.2007 Coram: F.A.R. Jundu, J. For the Appellant: present For the Respondent: Mr. Maugo, State Attorney C/C: Muyungi C ourt: Judgment delivered in the presence of the Appellant and in the presence of Mr. Maugo, learned State Attorney for the Respondent/Republic. AT M O SHI