20100225 TZCA Arusha

,, J)e r-c r A e- ~ l 1, l- ~ \ l '·' ! .. · IN THE COURT-OF A!PPEAL OF TANZANIA . ATARUSHA · (CORAM: NSEKELA, J.A., RUTAKANbWA, J.A., And MANDIA, J.A.) ' CRIMINAL APPEAIL NO. 223 OF 2007 I , i i VERANI PHILIP ••••••••• ~ ••.•.•••••••••••••• !~ ••••••••••••••••••••••••••••••••••• APPELLANT VE~SUS . \. • • I , THE ·REPUBL-I·C ••••••••••••••••••••• I •••••• ■.: •••••••••••••••••••••••••••••••• RES PON DENT •; I (Appeal from·.:the Conviction of the High Court of Tanzania · · .. •. at Moshi) . (Mchome, J.) :· -··: .:·~:,\~:~~ed-the 3rd day of July, 2002 · .,_.. •. -:-, , in '::' . • . • . ;·'.'. ·:·:: ,•t.'.-;•·;.,•;,-; 'Criminal Appeal No. 118 of 2001 . , ,;✓. ;_\)Y···· ..... :;/:\:":.... ~1 -------r-------- JUDGMENT 16th & 26th February,2010 . MANDIA, l.A. ' The appellant VERANI PHILLIP was charged with Robbery c/ss 285 and 286 of the Penal Code in the District Court of Rambo. Other i three confederates were jointly i! charged with him. Two of his ·c~n'fed,er~tes were found not gui'1ty and acquitted. He was found ' ' ; guilty, convicted and sentenced tq thirty years imprisonment with six I; ,, I strokes of the cane. Another confederate, who was the third accused I I ! 2 ii in the trial court, was found gui'lty and convicted of being in I I possession of stolen property. H~ was sentenced to two years I imprisonment. He did not prefer a@ appeal. The appellant VERANI I PHILIP was aggrieved by both the conviction and sentence. I He ! preferred an appeal to the High Court of Tanzania sitting at Moshi. i His appeal was dismissed in its en'tirety. He has filed this second I appeal. In this appeal, the appellant is represented by Mr. Ralph Njau, I learned advocate, while the Respo,hdent/Republic is represented by I Ms. Veritas Mlay, learned Senior State Attorney. The memorandum I I of appeal filed by Mr. Njau, learnedi advocate, contains three grounds I of appeal couched in the following language:- 1 1. That the learned Appellate Judge grossly erred both in law I and fact in upholding thJ decision of the trial court in the absence of sufficient evidence to establish the offence of armed robbery. t ~,ii ,;\. (. It' /~ .,,,. ti..,~· L . .. ,'.'.:.-, I I I [i I' 3 l 1f jl 2. That the learned Appellate!Judge erred both in law and fact i, in holding that the Appella~t had been properly identified as the person who had comm}tted the offence charged with. 3. That both the learned tial Magistrate and the learned I Appellate Judge erred bot/(! in law and fact in fal'ling to give ! due consideration to the dbfence raised by the appellant. I, 17/8/2000 at 7.00 p.m PW2 Aloycr Jerome, a standard two student I living with his grandmother PWl !Justine Mseto Bureta at Mengeni Kitasha village in Rombo District, , met the appellant at the kitchen which was separated from the mAin dwelling house. The appellant ! allegedly held a bush knife which,. he used to threaten PW2 that he should keep quiet or else he will Ibe cut. Despite the threat, PW2 shouted but was not cut as promised by the appellant. The shout . I alerted the grandmother PWl Justine Mseto Bureta who moved from the bedroom where she was tb the living room, which in her f evidence she called the receptionl At the living room PWl met face I to face with the appellant who ~as carrying a bush knife which he Ii i Ii I I I! . 4 ..., I allegedly used to cut PWl on the h~nd and then twice on the head. [, After administering the cuts the appellant allegedly took from the 1 I I house a radio valued at cash sh. 60,000/= a coat and shoes. PWl I I said she fainted after the attack~ During cross-examination by I appellant PWl Justine Mseto Burera alleged that the appellant was I cut on the "toe finger" by some weapon the appellant used to cut I PW1. I A neighbour PW3 Novet Fau~tin Mlay heard the shouts coming I from PWl's house. He went ov~r there and found PWl already I wounded. He took PWl to hospital. PW3 testified that on the way to I hospital PWl told him the person Jvho wounded her is the appellant. I This must have been after PWl ha~ regained her consciousness since I I in her own testimony in court PWl said she fainted after the attack. I The noise at the house of PWl Justine Mseto Bureta also drew the 1: attention of two militiamen on rlight patrol, PWS Nesto Nagasani [: Shayo and PW6 Peter Shangali / Bureta. These claim that what 1: attracted them to the house off, PWl Justine Mseto Bureta were I sounds of gunfire. They went to !the scene and found PW 1 already I f 5 wounded and PWS Nesta Nangasa~i Shayo helped take PWl to I. hospital. On the following day the !militiamen went to search the 1 I' appellant. PW6 Peter Shangali Bureta gives the time of the arrest 1 Ii i and search as 10 a.m. on 20/8/1998 I and during the search they I recovered a jacket, one blouse, one ~kirt and one pair of shoes which ! PWl identified as her property. The/arrest and search· resulted from I PWl when she named the appella~t as her assailant. The search I was also attended by PW7 John Cri~pin Bureta, the village Executive I I Officer for Mengeni Kitasha village. I 11 Another important witness for the prosecution was PW4 ! 1, Aniseta Bureta, the husband of PWl Justine Bureta. His testimony is I' I to the effect that on the day and tiltrle his wife was wounded he was I I; away in Moshi town. He went over Ito Rambo hospital where his wife I I was admitted and then went ho~e where he discovered that his 1· I radio, cash sh.60,000/=, one coat and I shoes were stolen I I In his defence given under dath the appellant testified that he i too heard the shouts coming from)the house of PWl and was one of 6 ' the people who went there in th6 company of Mzee Costantine I I Gureiya, his own (appellant's) father, and brother. On the next day at I 10 a.m. he was arrested. During 1 cross-examination the appellant 1 I said he arrived at the scene fifteeri} minutes after the shouts. The I appellant contradicted that testimony of PW1 when she said the I' appellant was wounded during the /assault. The appellant dared the prosecution to show the I' wounctJ he sustained. DW4 Costantine ! i t Ngareiya corroborated the appella~t's testimony that he (DW4) and the appellant went over to the sce~e of the shouts together. Similar I evidence of the appellant going to ~he scene was given by DW6 Filipo I I Ausetas. I I At the end of it all, the trial court found the appellant guilty, ! convicted him and sentenced ·him to thirty years imprisonment as I aforementioned. In convicting theltrial court based itself on the point i that the appellant was positively fdentified through lamp light. The I I first appellate court upheld the findings of the trial court on I identification. I I I I I 7 I ' Arguing the appeal, Mr. Ralp1 Njau, learned counsel for the appellant, assailed the findings of fact made by the trial court and the 1 first appellate court first by pointing' out that the two courts below I I' failed to see the obvious fact the iparticulars of the charge sheet 1 I differed from the evidence. Whilei the particulars alleged that the I' victim of the assault was Anicetus /Bureta, the evidence adduced in I the trial court showed that AnicetusjBureta was away in Moshi during I the assault and the victim was lhis wife Justine Mseto Bureta. I I Learned counsel Mr. Ralph Njau als0 pointed out that the prosecution II did not consider the appellant's ~efence that he was one of the I persons who heeded the cries forj help by the victim and was not I pointed out at the scene as an assailant. Counsel also pointed out II that the identification the scene 1allegedly by lamp light was not 1 I positive. I I I I! The Respondent/Republic ~id not support the conviction, II mainly for the reasons advanced by learned counsel Mr. Ralph Njau. I II I I I r ' II • 8 I I I I Unlike Mr. Ralph Njau, learned counsel for the appellant we will I I I consider all the grounds together beca~se they are inter-related. We are mindful of the position in law t~at as a second appellate court I I we should not casually disturb the fincctings of the two courts below, I I· I a position solidified by this court in the following cases:- 1 I 11 1. AMIRATLAL DAMODAR 11! MALTASER 1· AND ANOTHER t/,i ZANZIBAR SILK 1 STORES VS. A.H 1 ~ 1· JARIWALLA t/a 1· I ZANZIBAR HOTED l'.(1980) TLR 31 I I' I 2. SALUM MHANDO ~ REPUBLIC (1993) TLR 170 1· and recently in ABDALLA MUSSA/ MOLLEL @ BANJOO vs THE DIRECTOR OF PUBLIC PROSEdUTIONS Criminal Appeal No. 31 1: of 2008 (unreported). I Despite this caveat, we are of the vjew that the circumstances of this I I case justifies our intervention in as~essment of the evidential findings 1 of the two courts below. We draw /strength from the fact that all the I I I evidence was analysed in the trial District Court, and all that the I I I appellate High Court did, in a one .and a half page judgment, was to 1' l ,. 9 (, ~ J agree with the findings of the trial court and dismiss the appeal in its I! entirety. A revisit of the evidence in the t'rial court shows that the trial / court made a finding that the appelltjnt was properly identified by ;' lamp light without evidence on what ~ind ,, of lamp it was. Curiously the trial District Court quoted with ap~roval the authority of Rungu ' I,,, Juma v Republic (1994) TLR 176 and applied the facts of that ;' I, case to the present case. At the s~me time the trial court made /1 reference to a lighted lamp. We fail to see how a lamp of whatever 1: ,, .I kind can be lit in broad daylight to help in illumination. Curiously the I I, same "illogical logic" is repeated by:: the first appellate court in its l judgment where the learned judge sYts at page 40 of the record:- , 'I "This is both because of th$ lamp and that at 7.00 p.m it is not yet dark". We are of the opinion that sucth kind of twisted logic cannot be I ·' the basis of positive identification. The record of trial also shows that the appellant was at the scene of the robbery fifteen minutes after it happened and fielded two witnesses DW4 Constantine Ngareiya and DW6 Filipo Ausetas who went with him to the scene of the accident. None of the prosecution witnesses mentioned the appellant's presence at the scene and the militiamen who arrested the appellant on the following day PWS Nesto Nangasai Shayo and PW6 Peter Shangali Bureta concealed this fact from the court. Was it a bout of forgetfulness or a deliberate attempt to show the appellant in bad light? It is also instructive to note that the victim of the alleged robbery PW2 Justine Mseto Bureta alleged in court that the appellant was himself wounded on the finger as he assaulted PW2. The appellant dared the prosecution side to point out the alleged wound which he received. Nobody took up the challenge. The failure of the t~ial court and the first appellate court to consider the appellant's defence that he was one of the persons who responded to the alarm occasioned injustice on the appellant. For the reasons given above, we are satisfied that this failure by the two courts below to analyse 11 the totality of the evidence resulted in the erroneous findings, of fact as demonstrated above. We have had occasion to examine the charge. The particulars of the charge allege that the appellant stole the property listed in the charge sheet used violence against the owner of the property, one Anicetus Bureta, in order to acquire the property stolen. The evidence adduced in the trial court, however shows that when the alleged robbery took place, PW4 Anicetus Bureta was in Moshi town, and not at Mengeni Kitasha village where the robbery allegedly took place. The particulars of the charge sheet mention a gun being used and actually fired during the robbery. There was however no evidence from the eye witnesses on the existence of a gun, let alone one being fired. The combination of a victim of a robbery who is not at the scene, a gun which does not exist, and an appellant who is present at the scene together with other villagers who responded to the alarm puts this case in the realm of science fiction, rather than a criminal case which should be proved, by the prosecution, beyond reasonable doubt. We are satisfied that both the trial and the first 12 appellate courts' cursory treatment of the evidence let to an unwarranted finding of guilt which we find is not supported by the evidence on record. We allow the appeJI, quash the conviction and set aside the sentence imposed on thJ appellant. The appellant should be set at liberty forthwith unleJ he is held on some other .. lawful cause. It is so ordered. th DATED at ARUSHA this 25 day/ February, 2010. H. R. NSEKIELA JUSTICE OF A1PPEAL j E.M.K. RUTA~NGWA JUSTICE OF APPEAL ! w.s. MANPIA JUSTICE OF APPEAL I certify that this is a true copy of th /original. I