hamisi mlabu another vs republic 2010 tzhc 245 28 july 2010

IN THE HIGH COURT OF TANZANIA AT DODOMA (APPELLATE JURISDICTION) (DC) CRIMINAL APPEAL NO. 38 OF 2009 (Originating from Manyoni District Court, Criminal Case NO. 167 of 2008) 1. HAMISI MLABU 2. TANO SITIMA PIUS " ................. APPELLANTS VERSUS THE REPU BLIC .................................. . RESPONDENT JUDGMENT 03/5/2010 & 28/7/2010 KWARIKO, J: The two appellants herein and one ABDALLAH MAHEPE IDDI were arraigned betore the district court of Manyoni at Manyoni for the offence of Armed Robbery contrary to section 285 and 286 of the Penal Code Cap. 16. Vol. 1 of the Laws, Revised Edition 2002 as amended by Act No. 4 of 2004. They had denied the charge and at the end of the trial the appellants herein were convicted and sentenced to thirty (30) years imprisonment each with an order ot compensation to the complainant at a tune ot Tsh. 150,000/= each. ABDALLAH MAHEPE IDD who was the first accused was acquitted. The salient tacts of the case at the trial from the prosecution can be recapitulated as follows; On 10/6/2008 at 9.00 pm one MICHAEL MASAMBA, PW1 was at his home with his wife VERONICA ZEBEDAYO, PW2 and his niece ELIZABETH ARHUR, PW3 who was sleeping in the bedroom. PW1 and PW2 were still awake and their house door was still opened. While there three people invaded them while armed with a gun, machete and a stick. PW1 was cut with a machete in his various parts of the body. There was a lamp in the house which was flashed after the thugs had entered and it helped the witnesses to identify the two appellants among the thugs as they knew them before. That the 1st appellant had the gun while the 2nd appellant had the machete. PW1 had a shop in his home and the thugs stole assorted items from therein and left. The witnesses raised alarms where neighbours came and they were informed about the thugs’ identification. The following day bullet shells were recovered outside P W l’s home. P W l’s and PW2’s PF3s were admitted in Court as exhibits PI and Pll respectively while a hat allegedly found dropped by thug at the scene was admitted as exhibit Pill. In their respective defences the appellants had denied the charge and 1st appellant accounted that he was arrested on 10/6/2008 at 2.00 pm while the 2nd appellant testified that at the material time he was attending his pregnant wife and took her to his mother where she gave birth. Whilst the 2nd appellant was looking for food for his wife the following day at 10.00 am he was arrested by militiamen. It was for the foregoing evidence that the trial court found that the two appellants were satisfactorily identified at the scene and thus were convicted and sentenced accordingly. The appellants were aggrieved with this decision where through Mr Kuwayawaya learned Counsel they filed this appeal where they raised three grounds; 1) THAT, the trial Magistrate erred in law and fact in failing to hold that the prosecution had not proved the case on the required standards. 2) THAT, the trial Magistrate erred in law and in fact in failing to observe the law. 3) THAT, the trial Magistrate erred in law and in fact in failing to adequately evaluate the evidence tendered in Court. I heard Mr Kuwayawaya’s submission in relation to the grounds of appeal. I also heard Mr Wambali learned State Attorney who appeared to argue the appeal on behalf of the respondent, Republic and he did not support the conviction and sentence against the appellants. The reasons advanced by Mr Wambali were not different from those advanced by the appellant’s Counsel. This Court is in agreement with the Counsel for the parties that the prosecution case at the trial was not proved beyond reasonable doubts against the two appellants. The following are the reasons as rightly submitted by Counsel for the parties. Firstly, the prosecution witnesses (PW1, PW2 and PW3) did not explain how they identified the thugs to be the appellants herein. It was alleged that a lamp was said to have been used to identify the thugs; but it was not explained as to what was its position in the house which could have enabled the witnesses to see and identify the thugs. The witnesses also did not explain the thugs’ appearances. They did not also state what made them identify the appellants and failed to identify the third person. As rightly submitted by Mr Wambali learned State Attorney, P W l’s and PW2’s evidence become more doubtful when they implicated the then 1st accused to be among the thugs while he came to answer their alarms shortly thereafter. Thus the condition for proper identification were not met in this case. The witnesses also testified that after the thugs had left they raised alarms and neighbours came to answer the same but no any neighbour came in court to corroborate this evidence. Not even PW4 who received the appellants after arrest testified that he was informed that they were the ones who were identified at the scene. (See BUSHIRI AMIRI VS R [1992] TLR 95). Secondly, PW1 and PW2 differed on material evidence. While PW1 testified that he saw the first appellant holding a gun and 2nd appellant with a machete; PW2 revealed that she saw 1st appellant with a machete and a stick while the 2nd appellant had a machete. This contradiction creates doubts onto the prosecution case which are resolved in favour of the appellants. The prosecution evidence’s doubts were furthered by lack of testimony of the arresting team so that they could explain how they arrested the appellants and what convinced them to arrest them. Thus, the Court believes the evidence of DW3 a militiamen who testified that the appellants were arrested on account of suspicion. This evidence was not controverted by the prosecution. This goes to police investigator who did not come to testify on how the appellants were booked and what convinced him to charge them in Court. Also, while PW1 testified that bullet shells were recovered at the scene the following day but the same were not tendered in court to prove the assertion that there was gun shots at the scene. For the foregone observations, I find that the prosecution at the trial did not discharge their duty to prove the case against the appellants beyond reasonable doubts. Had the trial court highlighted and considered the various shortcomings in the prosecution case it could have found that the same was not proved beyond reasonable doubts and it did not deserve a conviction. Consequently, this appeal is allowed, conviction is quashed and the sentenced is set aside. The order of compensation is also set aside. It is hereby ordered that the appellants be set at liberty unless their continued incarceration is in relation to other lawful causes. It is held. 28/7/2010 AT DODOMA 28/ 7/2010 Appellants: Present/Mr Kuwayawaya Advocate. For Respondent: Ms Seit State Attorney. C/c: Ms Komba.