manjale so mgimbe vs republic 2009 tzhc 237 23 january 2009

IN THE HIGH COURT OF TANZANIA AT TABORA APPELLATE JURISDICTION (Tabora Registry) (DC) CRIMINAL APPEAL NO. 64 CF 65 OF 2000 ORIGINAL CRIMINAL CASE NO. 198 OF 1997 OF THE DISTRICT COURT OF KAHAMA DISTRICT AT KAHAMA Before: C.F. KIPILIMBA..Esq., SENIOR DISTRICT MAGISTRATE MANJALE S/O MGIMBE................................... APPELLANT (Original Accused) Versus THE REPUBLIC............................................RESPONDENT (Original Prosecutor) JUDGMENT 5/11/08 & 23/01/09 KADURI. J. Masunga s/o Luselegi and Manjale s/o Ngimbe faced 4 counts of Armed Robbery c/ss 285 and 286 of the Penal Code. The offences are alleged to have been committed at Busulwangili village within Kahama District in Shinyanga Region. The properties stolen belonged to four different people, Fabian s/o Paulo, Maguta Gaseko @ Mahengi, Dominic Shirima and Kamida s/o Maduhu. . PW1 Fabian Paulo's grocery was invaded by bandits during the night, of 6/10/1997. He was beaten by the bandits and ordered to give them money. Several shop items were stolen. He could not identify his assailants. He reported the incident to the Police at Luguya where he was given a PF.3 for treatment. He was later informed by the Police that there were suspects who were arrested at Geita. He went to Kahama to see the suspects. At Kahama Police station he was shown some items. He was able to identify some of the items such as a radio Panasonic make, child garments, shirts watches etc. PW2 Kutenchen Gati was sleeping in a guest house on the material night when bandits invaded the guest house. He and his wife were assaulted with pangas and some gold valued at 480,000/= was stolen in the process. His shirt, a pair of shoes and a jacket were also stolen. His wife suspected Masunga Luselengi because he ran away when he saw them. He was later informed that there was a suspect at Kahama Police station. He went there and identified his shirt a pair of shoes and one jacket as his property. The same goes with PW3 Dominic Shirima who was assaulted at 2 his grocery that material night and. he was assaulted with a panga and fell unconscious and his money, 250,000/= stolen. The appellant Manyale s/o Ngimike was arrested by Sungusungu on 7/10/1991. When searched he was found with cash 64,150/= new sairts, one new Panasonic Radio and 10 new wrist watches. The appellant Masunga s/o Lusengi was found with cash 53,000/=. The appellants in their defence denied committing the offence. The trial court convicted both appellants because they were found with stolen items identified by prosecution witnesses as items stolen during the commission of the robbery. None of the prosecution witnesses was able to identify the appellants as the perpetrators of the robbery. The second appellant denied being arrested in possession of the bag that contained the items allegedly stolen and identified by the prosecution witnesses. Both however, do not deny being found with the amounts of money each had. The learned State Attorney, Miss Mwahija did not support the conviction of both appellants. She submitted that among all the prosecution witnesses, not a single one identified the appellants on the day of the incident. She 3 further submitted that there was contradiction on the types of items the appellants were alleged to have been arrested in possession with. She cited the case of Samson Kitundu V.R. Cr. App. No. 195 of 2004 where the court of Appeal sitting at Mwanza said, nI f there is any conflicting evidence the doubt ought to have been resoived in the favour of the appellant With due respect, I agree with the submission of the learned State Attorney. The prosecution evidence was. based on suspicion cast on the appellants for reasons not recorded in evidence. The items allegedly found with the second appellant were common shop items even though he had no receipt. The appellant denies being arrested in possession of the said items. No independent person witnessed the search. The same with the first appellant who was only found with money. I am therefore of the opinion that there exists doubts as to the participation of the appellants in the robbery because no witness could identify them and there is conflict 4 in the way the appellants are said to have been suspected and arrested. The search was conducted with no independent witness, therefore it is doubtful if at all the appellants were found with the stolen properties. For the foregoing reasons, I quash the conviction set aside the sentence and order. that both appellants be released from prison forthwith unless otherwise legally held. JUDGE 23/1/2009 5