dares charles vs republic 2010 tzhc 234 17 february 2010

IN THE HIGH COURT OF TANZANIA AT DODOMA DC CRIMINAL APPEAL NO. 27 OF 2009 (ORIGINATING FROM CRIMINAL CASE NO. 244 OF 2007 AT THE DISTRICT COURT OF MPWAPWA SITTING AT MPWAPWA) DARES CHARLES........................................... APPELLANT VERSUS THE REPUBLIC........................................ RESPONDENT JUDGMENT 30th NOV. 2009 & 17thFEB. 2010 S . S. MWANGESI J. / The Appellant in the matter at hand was charged with the offence of arm ed robbery contrary to section 285 and 286 of the Penal C od e C a p . 16 Vol. 1 of the Laws Revised as am ended by Act no. 10 of 1989 and A ct no. 4 of 2004. It was the ca se for the prosecution that, on the 21s1 day of June, 2007 at about midnight hours, at Rudi village within the District of M pw apw a in Dodoma Region, the a ccu se d did steal cash Tshs. 100,000 the property of one Naomi d/o Waziri and immediately before and after such stealing, he did threaten the said Naomi Waziii by using a m ach ete in order to obtain and retain the said property. After the charg e had been denied by the a ccu se d person, the prosecution did summon four witnesses to establish the guilt of the a ccu se d person. Upon hearing those witnesses, the trial Magistrate was satisfied beyond doubt that the guilt of the a ccu se d person had been established. He did thus convict the a ccu se d person who herein after will be referred to as the appellant and sentenced him to the m andatory statutory sentence of going to jail for a period of thirty years. The appellant is challenging such findings of the trial court in this ap p eal. In his m em orandum of ap p ea l, the appellant has enum erated about seven grounds of ap p ea l. However, on observing them closely, one will find that they all talk about four main issues that is to say, first, that the learned trial M agislrate did fail to com ply with the m andatory requirements under the provisions of section 312 (2) of the Criminal Procedure Act. Secondly, that the learned trial Magistrate did misdirect himself to base his conviction on the evid e n ce of people from the sam e family. Thirdly, that the learned trial Magistrate did err to find conviction on the evid en ce of identification that w as insufficient. And fourthly, that the evid en ce of / 'defence was com pletely not considered by the learned trial Magistrate in his judgment. During the hearing of the a p p e a l, the appellant who did ap p ear in person, had nothing to ad d to w hat is contained in his memorandum of a p p e a l. The respondent - Republic on the other hand w as represented by Mr. Katuli learned State Attorney. The same did support the ground by the appellant that, all the three witnesses, that is Pwl Naomi Waziri, Pw2 Martin Msagule and Pw3 George Mugulila, claim ed to have identified the appellant by use of the light of a torch. All of them however, w ere not elaborate as regards the intensity of the said light plus the distance from where they were to where the appellant was. It was the view of the learned State Attorney that their explanations ought to have removed all possibilities of mistaken identity a requirement that w as mandatory as insisted in the decisions of Waziri Amani Vs Republic [1980] TLR 250, Shiku Salehe Vs Republic [1987] TLR 193 as well as Raymond Francis Vs Republic [1994] TLR 100. Unaer the circum stances, the learned State Attorney did not support conviction. The issue for this court to determine, is as to whether the evid en ce a d d u ce d at the trial court did justify conviction. As stated by the appellant and supported by the iearned State Attorney, the circum stances leading to the ap p eln n t being identified by Pwl and Pw2 using the torch which was beinq held by Pwl was not m ade to be clear. In the first Pwl did state to have been rebuked by the assailants and w arned not to go on directing her torch to them. It ^as not elaborated as to whether she defied such an order or not. And at a later time, the torch is said to have been snatched from Pwl by the assailant. Regarding Pw3, the sam e w as never at the scene of the incident. Although he claim ed to have met with three people while moving to the cam p of Pwl after an alarm had been raised, even if he could have properly identified those people, it could not h ave been stated affirmatively that those people were nobody else other than those who had assaulted P w l. AH in all, the availab le doubts as regards such identification, has to benefit the appellant. It has also been com plained by the appellant that there was failure to com ply to the m andatory requirements under the provisions of section 312 (2) of the Crim inal'Procedure Act by the learned trial M agistrate. The requirement under the said section is that, in ca se of conviction, the judgment shall specify the offence of w hich, and the section of the Penal Co d e or other law under which the a c c u se d person is convicted and the punishment to which is sentenced. Indeed on checking at the judgment at hand, it cannot be said that the section has been com plied with. The sam e therefore means that the com plaint by the appellant is sound. R e g a rd in g ‘ the, d e fe n ce of alibi that was raised by the appellant, indeed the appellant in his d efe n ce did state that at the material time of the commission of the offence at issue, he was at Malolo where he had sent his sick wife. Such contention by the appellant was supported by the testimony of his father one Charles Ruhusa. In his judgm ent, the learned trial Magistrate did state that the appellant was supposed to oring evid en ce to satisfactorily establish that he did travel to the said Malolo village and further produce a letter or any docum ent from the authorities from the area he claim ed to have been to establish so. It is the view of this court that in so doing, the learned trial Magistrate d em anded more than w hat is needed w hen such d efen ce is raised. What the appellant had done was enough, and it was upon the prosecution to disprove those contentions by the appellant and his witness. And as regards the ground that his d e fe n ce evid en ce was not considered in the judgm ent by the learned trial Magistrate, much as the records reveal, the said d efen ce evid en ce was considered and in the ultimate, the learned trial Magistrate did com e out with findings that it w as not worthy changing his stand which he had already taken from what got tesl*;ted by the prosecution witnesses. So the problem here was not 1 ■ .-cause he did not consider the evidence but rather the verdict he m ade. On the bases of w hat has been discussed ab o ve, this court finds that there is merit in the ap p e a l by the appellant. The decision of the trial court is therefore quashed and the sentence imposed by the sam e is hereby set aside. The appellant is thus to be set at liberty forthwith unless lawfully detained for any other good cause. (S. S. MWANGESI) JUDGE 17-02 - 2010