pascal so sangula vs republic 2009 tzhc 167 9 october 2009

IN THE HIGH COURT OF TANZANIA AT DODOMA (DC) CRIMINAL APPEAL NO. 99 OF 20008 ( ORIGINAL CRIMINAL CASE NO. 101 OF 2008 OF THE DISTRICT COURT OF MANYONI DISTRICT A T MANYONI) PASCAL S/O SANGULA ...... APPELLANT VERSUS THE REPUBLIC ........... RESPONDENT 14/9/2009 - 09/10/2009 JUDGEMENT HON. MADAM. SHANGALI. 3. The appellant PASCAL S/O SANGULA was charged along with one another namely AUGUSTINO S/O WILLIAM with the offence of Armed Robbery contrary to section 286 of the Penal Code, Cap 16 before Manyoni District Court in Criminal Case No. 101 of 2001. In his final judgement, the trial District magistrate was satisfied with the prosecution evidence against the appellant and convicted him accordingly. The appellant was sentenced to serve thirty (30) years imprisonment and ordered to pay to the complainant a sum of T S h s .56,000/= being 2 the value of stolen property. The second accused AUGUSTINO S/O WILLIAM was found not guilty and acquitted accordingly. Aggrieved by the decision of the trial District Magistrate against him, the appellant has filed this appeal contesting for his innocence. I have no reason to say much in this appeal because the learned Sate Attorney, Mr. Wambali who appeared for the respondent/Republic refrained to support the decision of the trial District Magistrate. Instead, and for very good reasons, he supported the appeal of the appellant. Briefly, the evidence upon which the decision of District Magistrate was founded is that on 26th February, 2006 at about 3.BO p.m. at Udimaa Village the complainant (PWl) Benito Denis was riding his bicycle back home from Kintinku area. On his bicycle he was carrying two plastic jerry-cans full of diesel for his grinding machine. On his way he met two people who were repairing their bicycle on the road side. The two people stopped him asking for a bicycle pump. PWl stopped and assisted them. Thlen the two people demanded one of the plastic jerry cans. PWl refused. Suddenly the appellant who was holding a bush knife slashed him on the head. PWl fell down, the two people searched himand disappeared with the bicycle and the two plastic jerry-cans full of diesel. PWl 3 shouted for help and several people responded including PW2. PWI narrated to them how he was assaulted and robbed by the appellant and another (accused person). According to the evidence of PW2, the complainant (PWl) was seriously wounded. They rushed him to hospital and on the following day the appellant was arrested by village sungusungu after being mentioned by PWl. According to the evidence of p w 3 , when the appellant was arrested by sungusungu he was seriously assaulted and taken to hospital for treatment, while at the hospital the second accused visited him and was equally arrested. PW4, Detective Coplo Ezekiel produced two empty plastic jerry-cans as exhibit. He informed the trial court that the jerry-cans were found in the house of the appellant and they are suspected to be the very plastic jerry-cans stolen from PWl. They were admitted as Exhibit Pi. In his sworn defence the appellant testified that on the evening of 26th February, 2006 at about 7.00 p.m. he was at Koonko Bar drinking local brew with other people. Suddenly he was ambushed and beaten up by a group of people who managed to run away leaving him helpless. He managed to walk home but on the following day a group of village sungusungu worriors arrived at his house and arrested him. He was taken to police and connected with the alleged offence. He stated that the police issued him with a PF3 and took him to hospital, while at the hospital the second accused 4 arrived to assist him but he was also arrested and connected with the offence. The appellant categorically denied to have committed the offence. The grounds of the appeal which were submitted by the appellant and supported by the respondent included the failure of the PWl to identify his assailants properly and mention them by names or give some description to the people who responded for his assistance. The complainant referred his assailants as “two p e o p l e ” and it appears that he identified them at the dock. Secondly there is no connection between the arrest of the appellant and discovery of exhibit Pi, the two plastic jerry- cans. The plastics were found and seized by one Peter Mwalongo who handled them to PW4 who produced them in court as exhibit. As a result Peter Mwalongo was not called as a witness and PW4 was giving a hearsay evidence. Furthermore there is contradiction on where and how the appellant was arrested. Some prosecution witnesses (P3 and PW4) claimed that he was arrested at Kitinku, Koonko Bar while PWl and PW2 claimed that he was arrested at Mulelela village. It appears that this case was investigated by the sungusungu worriors and related information to the police officers (PW3 and PW4) whose testimonies sound to be second hand i nformati o n . One more important aspect in this case is that the trial District Magistrate totally failed to 5 analyze and consider the defence of the appellant. The trial District Magistrate opted to believe the prosecution evidence and disbelieve the defence version without giving any reason. I am sure that had the trial District Magistrate carefully considered the defence evidence he would have come out with a different decision. In conclusion, and on the foregoing reasons, I have all reasons to join the learned State Attorney and the appellant that the appellants conviction was based on a very weak prosecution evidence. The case was not approved beyond all reasonable doubts. Therefore, this appeal is allowed. Conviction against the appellant is quashed and the sentence of thirty (30) years imprisonment and payment of cash T S h s .56,000/= as compensation is hereby set asi d e . The appellant PASCHAL SANGULA should be released from prison forthwith unless lawfully held in connection with another matter. It is so ordered. JUDGE 09/10/2009 6 Judgement delivered todate 9th October, 2009 in the presence of Mr. Wambali, Learned State Attorney representing the respondent/Republic and the appellant appearing in person. 09/10/2009