anthony matandu another vs republic 2010 tzhc 251 26 july 2010

IN THE HIGH COURT OF TANZANIA AT DODOMA (APPELLATE JURISDICTION) (DC) CRIMINAL APPEAL NO. 47 OF 2009 (Original Criminal Case No. 306 of 2005 of the District Court of Mpwapwa District at Mpwapwa) 1. ANTHONY MATANDU I 2. MATHIAS MASINE J .......................... APPELLANTS VERSUS THE R EP U B LIC ...........................................RESPONDENT JUDGMENT 21/4/2010 & 26/7/2010 KWARIKO, J: •The two appellants herein jointly and together were arraigned before the District Court of Dodoma at Dodoma for the charge of Armed Robbery Contrary to Section 287A of the Penal Code Cap. 16 of 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 they were both convicted and sentenced to thirty (30) years imprisonment each. On being dissatisfied with the trial court’s decision the two appellants filed this appeal each with his own grounds of appeal which have been consolidated and heard together. The facts of this case at the trial are not complicated. The prosecution side had this to tell the trial court. On 15/7/2005 at about 2.00 am PW1, ABINEL RUHUSA was sleeping in his house with his wife MONICA W/O RUHUSA, PW3 when they heard people knock on their door. PW1 asked for introduction from the people who knocked the door but they refused and forced him to open the door otherwise they could break the same. Fearing their safety PW1 opened the door and found five persons outside. They were threatened to keep quite and since the thugs had gun and machete they complied. The thugs entered inside and took a plough from the sitting room and three of them made away with it while two kept them guard until 5.00 am when they left. Through moonlight the witnesses managed to identify the two appellants herein and one Kepha Mang’ati who was not arrested. They were all village mates. The 1st appellant had a Machete while Kepha had a gun. It was also the 1st appellant and Kepha Mang’ati who kept the complainants guard until 5.00 am. The prosecution further evidence at the trial was to the effect that after the thugs had left PW1 and PW3 raised alarms where their neighbours including EMANUEL MADULESI (PW2) came where they were informed what had happened and the identity of the thugs was revealed. A man-hunt was launched by tracing their footprints which disappeared at a railway. The matter was reported to the Village Executive Officer (VEO) and the 1st appellant was arrested in the third day at Mnasi local brew shop while the 2nd appellant was arrested on 9/9/2005. Upon arrested the 1st appellant was found in possession of a Machete which was admitted in court as exhibit P1. In their respective defences the appellants had denied the allegations where they testified that they were in their respective homes on the material day and to their surprise they were arrested on the stated dates for nothing. Thus, in their respective memoranda of appeal the appellants raised several complaints in relation to the prosecution evidence at the trial which boil to one point that the prosecution case at the trial was not proved beyond reasonable doubts. I will consider those points of complaints in the course of this judgment. The grounds of appeal have been consolidated. During the hearing of the appeal the two appellants implored this court to consider their grounds of appeal and allow their appeal. Mr Katuli learned State Attorney appeared and argued the appeal on behalf of the Republic and he did not support the trial court’s conviction and sentence against the two appellants. He gave his reasons for the same. The Court is in agreement with both parties that the prosecution case at the trial was not proved to the standard required in law against the two appellants, for the same reasons as advanced by them. These are the following. Firstly, the crucial issue in relation to this case was that of the appellants’ identification at the scene. PW1 and PW3 testified that when they opened the door they found five persons outside and through moonlight they managed to identify the two appellants and one Kepha Mang’ati and that they knew them before. However, these witnesses did not explain the intensity of the moonlight and the distance that the thugs had stood from them for ease identification. Though they testified that two of thugs, 1st appellant and Kepha kept them guard until 5.00 am the witnesses did not state how the thugs had positioned them to enable them observe and identify them. PW1 and PW3 also did not explain how they managed to identify the three thugs among five and failed to identify the rest. Actually, they did not describe the thugs’ appearances and what they had worn that material time. I am satisfied that the conditions for accurate identification in this case were doubtful (See also WEREMA MATIKU VS R, Criminal Appeal NO. 51 of 2002, Court of Appeal of Tanzania at Mwanza, (unreported)) I further agree with the parties in this appeal that had the witnesses identified any thug at the scene they could not have followed footprints from the scene, more so because they said they knew them before as they were village mates. Instead they must have gone directly to their respective homes and arrest them. The act of tracing footprints connotes that nobody was identified at the scene. There is no evidence to show that the appellants or the said Kepha Mang’ati were traced at their respective homes soon after the incident had occurred and they were not found there. Instead there is evidence that the 1st appellant was arrested the third day from the material day while the 2nd appellant was arrested on 9/9/2005. This state of affairs create doubts as to whether the appellants were identified at the scene. Also, PW1 and PW3 contradicted each other in their evidence. While PW1 testified that the two appellants were their village mates at Igandu, PW3’s testimony revealed that the 1st appellant lived at Mgunga village while the 2nd appellant resided at Igandu village. This contradiction only signified that their testimony was questionable and had no truth in it. Further, during the preliminary hearing it was stated that PW1 had identified five persons and mentioned them to be the two appellants herein, Kepha Mang’ati, Malima Mang’ati and Awani Mandulesi while his evidence in court was to the effect that he identified only three thugs at the scene. The facts of the case during preliminary hearing are the ones extracted from the complainant’s initial report at the police. Therefore, PW1’s evidence in court is at variance with his earlier statement at the Police. This discrepancy shows that no one was identified at the scene and it was only for reasons best known to the witnesses that the appellants were arrested and charged with this offence. The trial Magistrate was of the view that since the thugs had a machete during the material time and since the 1st appellant was found in possession of a machete (exhibit P1) then he was among the thugs. It is my opinion that the witnesses did not mention specific marks on the machete they allegedly saw the thugs carrying so that it could be likened with exhibit P1. Hence one cannot hold with certainty that the two machetes were one and the same thing. Also, exhibit P1 was admitted in Court contrary to the procedural law since the appellants were not given opportunity to say anything before the same was admitted in evidence. Exhibit P1 is therefore not good evidence and it is expunged from evidence. The trial court also charged that since the 2nd appellant had absconded it was a relevant issue which proved his guilty. I do not agree with this contention since there is no evidence that the 2nd appellant was traced at his home and was not found. Actually, no any local leaders came to testify to the effect that not only the 2nd appellant but also the 1st appellant had absconded from their homes or villages soon after the incident so as to raise suspicion against them. For the foregoing analysis, it is my settled view that the prosecution case was not proved to the standard required in law, i.e proof beyond reasonable doubts. I therefore allow the appellant’s appeal, quash their conviction and set aside the sentence of thirty (30) years imprisonment each has been serving. The appellants are ordered to be released from custody unless otherwise lawfully held. It is held. q c. ml/ (M. A. K vva RIKO) JUDGE 26/7/2010 AT DODOMA 26/7/2010 Appellants: All Present. For Respondent: Mr Wambali State Attorney.