majaliwa elias kahungu vs republic 2007 tzhc 396 31 october 2007

IN THE HIGH COURT OF TANZANIA AT BUKOBA APPELLATE JURISDICTION H/C CRIMINAL APPEAL NO. 12/2007 ( Arising from Criminal Case No. 122/2006 at Ngara District Court - Before: M. Paul.,Esq.,DM) MAJALIWA ELIAS@KAHUNGU...................................... APPELLANT V/S REPUBLIC.......................................................................... RESPONDENT 02/08 & 31/10/2007 LYIMO, J. JUDGMENT. The Appellant Majaliwa s/o Elias@Kahunga was charged with Robbery with Violence in Ngara District Court Criminal Case No. 122 of 2006. The particulars of offence stated that the appellant on 8/02/2006 at about 11.00pm in Kazingati Village stole cash Shs. 6,000/= 40kgs of beans worth 24,000/=, four (4) chicken valued at 8,000/= and 20 litres of local brew known as gwagwa, all which was valued to total Shs. 43,000/= the property of one Francisco Muteranyi and that immediately before or after the theft, used violence in order to obtain or to retain the said property. After a full trial, the appellant was convicted as charged and sentenced to fifteen years imprisonment. He now appeals against conviction and sentence and has filed three main grounds of appeal. In his first ground, he has challenged the evidence of Pw2 as being hearsay and which should not be relied upon. In the second ground, the appellant has complained that the offence of Robbery with violence was not proved and lastly that the whole case was not proved beyond reasonable doubt. In an endeavour to prove their case, the prosecution summoned three witnesses. Those were Pv/'Francisco s/o Muteranyi, the complainant, Pw2-Philipo s/o Kazingo, the village Executive officer and Pw3 Mussa s/o Mohammed, a cell leader of the Appellant. Pw1 gave evidence and stated that on the fateful night he was at home. Three bandits broke into his house and threatened to kill him if he made any alarm. He did not identify any of them. When under threats of his life, the bandits ransacked the house taking with them the properties referred to above. After they had left, he sent his wife to go and report to the village Executive officer. Several days passed by and on a date which has not been named, a plastic container which was stolen by the bandits on the night of the alleged robbery, was recovered from the house of the accused/appellant. At the time of the finding of the container the appellant was away at a place known as Murulama, 45 kms from Kazingati village. The appellant was then arrested on 30/05/2006 and charged accordingly. Pw2, the village Executive officer gave evidence to the effect that on 8/02/2006 at around 2:00am, the wife of Pw1 went to him to report about her husband being robbed of the properties listed in the charge sheet. As the bandits were not immediately known, the appellant was suspected to have participated in the robbery because he had disappeared from Kazingati village soon after news of the robbery started circulating in the area. Pw2 Further stated that he went and interrogated the Appellant's mother who then told him that there was a drum/container left in the appellant's house after its contents - gwagwa' had been consumed. The plastic container was later on identified by Pw1 as the one which had been stolen by the bandits on the alleged date. Pw3 the ten cell leader gave evidence to the effect that after he had received the report of the alleged robbery, he convened a meeting of all members under his leadership. As the Appellant did not attend that meeting, his wife was questioned on his whereabouts. The wife of the Appellant was reported as saying that her husband had left their home the previous night in the company of other men armed with a firearm. And the meeting resolved that the appellant be traced. At the end, the Appellant was traced at Murulama Village, was arrested and sent to the police. Giving his sworn defence, the Appellant denied to have committed the robbery. He asserted that the case was fabricated on him because the real suspect was one person by the name Gibson who was killed in a mob justice because he was found in possession of the plastic container. As correctly pointed out by the learned trial magistrate, the crucial issue for consideration was whether the charge of robbery with violence was proved against the appellant. In convicting the Appellant the learned trial magistrate reasoned thus:- “In the first place it is proved beyond reasonable doubt that following the occurrence o f this incident of robbery the accused person vanished from Kazingati village and migrated to Murulama village without notice to public. The migrating from kazingati................................... can correctly be inferred that the accused person had already felt a guilty (sic) consciousness. Secondly, the stolen container Exh. P I. Which was identified by to be the one that had been recovered from accused’s house. The accused does not offer a reasonable explanation as to how this container had come to be found in his house but ................... " end of quote. From the foregoing quotation there is no doubt that the trial magistrate convicted the appellant, purely on circumstantial evidence based first, on the appellant's migration to Murulama Village and second, on the recovery of exhibit PI - the container. At the hearing of the Appeal, Mr. Kameya learned State Attorney hesitated to support the conviction. Going by the evidence which I have already narrated above, there can be no doubt that such evidence was not sufficient to found a conviction of robbery with violence. Pw1 gave evidence without even describing the manner of threats or nature of violence he personally suffered. He did not state, let alone describe the type of weapons which the bandits had. He himself did not even go to report the incident but rather, sent his wife to go and report to Pw2. There is a lot of information missing in respect to the manner the offence was committed. That per se was sufficient to reduce the offence from one of robbery with violence to that of Burglary. Secondly, Pw1 had had categorically stated that he did not identify his attackers. Therefore before the appellant could be found to have been in possession of Exhibit PI for him to be connected with the Robbery, the prosecution should have adduced evidence proving that the appellant was in exclusive entry into the house wherein the container was found, more so taking into account the time span that had elapsed. No such evidence was given. What Pw2 told the court regarding the finding of the plastic container in the Appellants' house was strictly hearsay evidence. The alleged mother of the Appellant was a competent and compellable witness. She was not summoned to give evidence. Similarly the story given by the wife of the appellant who was also not summoned to testify remains to be hearsay. Much as I am aware that she was not a compellable witness, what she is alleged to have reported to the meeting chaired by Pw2 is strictly hearsay. In the upshot, there is no evidence showing how exhibit PI came to be in the appellant's house. As held by the trial magistrate, evidence surrounding the recovery of exhibit PI was purely circumstantial. But having said that, the trial magistrate grossly erred when he held as he did, that the appellant was proven to be among the bandits that invaded Pw1. The facts as they are do not prove beyond reasonable doubt that the appellant participated in committing the crime. The appellant should have been given the benefit of doubt. The conviction entered is hereby quashed and sentence set aside. The appeal is allowed in its entirety. 31/ 10/2007 Judgment delivered in the presence of the parties - Appellant and Mr. Ndjike, State Attorney. 31/ 10/2007 Right of Appeal Explained. 31/ 10/2007 A t BUKOBA 31/ 10/2007