otto so mlowe another vs republic 2008 tzhc 177 31 march 2008

IN THE HIGH COURT OF TANZANIA AT SONGEA PC CRIMINAL APPEAL NO. 9 OF 2005 OF DISTRICT COURT APPEAL NO. 103 OF 2002 (FROM ORIGINAL CRIMINAL CASE NO. 101/2002 OF MAHANJE PRIMARY COURT.) 1. OTTO S/O MLOWE ).................. APPELANTS 2. SEBASTIAN S/O MPONJI) VERSUS THE REPUBLIC........................... RESPONDENT JUDGMENT The appellants, Sebastian Mponji and Otto Mlowe, were charged with and convicted by the Mahanje Primary Court in Criminal Case No. 101/2002 o f the offence o f robbery contrary to section 285 o f the Penal Code. They were sentenced to seven (7) years imprisonment, each one of them was ordered to compensate the complainant Tshs. 10,000/= and each one was ordered to pay Tshs. 1,000/= as compensation for the injuries sustained by P w l. The appellants were not satisfied with the decision of the trial court they appealed to the District Court (H.J. Mwakenja); He wrote a very short Judgment which contained three paragraphs, in that short Judgment, he was of the view that, the lower court was right, that there was ample evidence upon which the conviction was grounded. I partly agree with him that, the sentence imposed by the trial magistrate was illegal in terms o f section 5 (a)(1) o f (Cap 90 R.E. 2002) which provides for the offence o f robbery a sentence of 15 years imprisonment. As indicated above, I now consider and give the decision on whether the accused person were rightly convicted ; The facts o f the case as established in evidence, are simple and straight forward and may be briefly stated as follows. P w l, Peter Mhile on 28/8/2002 at around 11 Pm., in the night when was returning back home from a pombe shop, two gangsters sprang from behind and seized him by the throat, searched him and robbed him Tshs. 20,000/= immediately after that, a group of boys appeared for help, upon seeing them the gangsters ran. away. The boys assisted him, they sent him to home. It was said that the gangsters went to the complainant’s house to prove whether he arrived there. They threw stones on the roof of house as result was woken up by the noise and he therefore decided to report the matter to the Police Station. When cross - examined by the 1st appellant on how he identified the alleged robbers, in that fateful night, P w l, informed the court that, he was assisted by a torch - light which he flashed direct to the appellants. The second prosecution witness was known as Mlelwa, he recalled to have seen a commotion when proceeding 2 home from a pombe shop. He did not see the appellants because the robbers had already gone away. He was informed by the Pw l that, the appellants robbed from him Tshs. 20,000/=. In his defence, the 1st appellant Sebastian Mponji, denied to have robbed the complainant, what he knew was the dispute between them and the complainant over girls. That the complainant and another wanted to take their two girls. Following that dispute, the complainant went to report the matter to the Police Station. Like wise, Otto Mlowe, the second appellant, denied to have committed the offence, he further informed the court that the dispute centred on two girls, the complainant and another person assaulted them, and being a militiaman he wanted to protect them. He went to report the matter to the Police Station. When was at the Police Station, the complainant framed up a case o f robbery against him and his co-accused. In their memorandum of appeal the appellants listed six grounds which may be summarized to only three main grounds o f appeal namely: 1. That the trial court did not allow them to call two girls who were the centre o f the dispute. 3 2. That they were militiamen, therefore, they were charged to protect the girls who were being assaulted by the complainant therefore were wrongly arrested and charged. 3. That, the trial court erred in fact in not considering their defence that, they went to report to the Police Station where they met the complainant lodging the complaint o f robbery against them. During the hearing o f the appeal the appellant insisted on their innocence by adopting the grounds of appeal. On other hand, Manjoti, Learned State Attorney, who appeared for the Respondent Republic declined to support the convictions of the two appellants, he urged this court to allow their appeal on the ground that the conviction were on mere probability rather than congent evidence. He further submitted that, the evidence showed that the victim o f the robbery was drunk and the incident took place in the night, for that reason, identification in those circumstances was difficult. Apart from that, Pw2, was also drunk and did not see the alleged robbers. 4 I have carefully gone through the Judgment and Proceedings of the trial court together with the grounds of appeal raised by the appellants; I must admit those grounds o f appeal have merit. To start with, the alleged robbery incident took place in the night, Pw l, victim o f robbery was drunk, Pw2, was also drunk, the only light which assisted the complainant was from a torch; Now the issue before this court is whether on the evidence, the appellants had been identified as being bandits, who had attacked Pw l. It is true that the only evidence of visual identification o f the appellants at the scene of the crime was that o f Pw l, the complainant, and there was no any other person who saw them. It is also in evidence that the complainant was also drunk. Secondly, Pw2 was drunk and he was returning home after a drinking session. From the foregoing, I am far from believing that in the circumstances, the complainant would see the appellants in that night. So long as the case rests on identification, I see no any reason of wasting time on other matters. I therefore agree with the Learned State Attorney that the victim would not identify the robbers therefore they were wrongly convicted and sentenced. Therefore, Pw l was not a credible witness. It follows that there was no congent and enough evidence to form conviction. It must be noted that the 5 onus of proof lies on Prosecution side and it must be beyond reasonable doubt. In this case, the prosecution failed to discharge that duty. The appeals are hereby allowed, the conviction against both appellants is quashed, a sentence of 15 years imprisonment is set aside and a compensation order imposed on them is also set aside. The appellants are to be released and set free immediately unless otherwise lawfully held. 31/3/2008. Judgment delivered to date 3 l st/3/2008 in the presence o f the appellant in person and the State Attorney 3 l st/3/2008. JUDGE 31/3/2008. 6