20101029 TZHC DODOMA

(!/ r IN THE HIGH COURT OF TANZANIA AT DODOMA DC CRIMINAL APPEAL NO. 90 OF. 2008 l (ORIGINAL DODOMA DISTRICT COURT AT DODOMA .. :~ { CRIMINAL CASE No·. 77 OF 2007 .. .- · . . FARAJA BAKARI- .............................. APPELLANT .] f) Versus - THE REPUBLIC ................ ~ ... ~.-........ RESPONDENT 24/09/2010 & 29/10/2010 JUDGEMENT HON. MADAM, SHANGALI, J. ~ The appellant FARAJA S/ 0 BAKARI was charged prosecuted and convicted of two counts, That is first count of burglary contrary to secti9n 294 (1) of the penal Code, Cap 16 and Stealing contrary to· section 265 of the same code. On the first count he was sentenced to serve ten (10) years imprisonment while on the second count he was . _ . ..,.,;:~~~f}.t~~f-~d .t9 $.~r:ve --~~v~p.., J7)_ .. y_e,ars . jn:,pr(sonment. Sentences were ordered to run concurrently. He was aggrieved · by both ··convictions and s·entence ·hence th1s ~ appeal. . ...... -,J::-~~~-c: ,. 2 • The facts _leading to this appeal may be briefly states as follows: In the night of. °17th February, 200V at about 01.00 ,.. . hours at area "A" within Dodoma Municipality PW1 Saidi Ramadhani was asleep in his house with his fam·ily including his wife PW2, Hadija Mohamedi. Suddenly he was put°under arrest by three bandits who bangled. into his house and started to attack him. One of the band.its was the appellant. The other bandits managed to steal one bicycle and a radio cassette_. They then disappeared out and __to the darkness. The appellant who was equipped with an iron bar remained behind demanding for a mobile phone from PWl. PW2 quickly lamented that mobile phone was on the charge. When the appellant turned to search and take the mobile phone from the charge, PWl ambushed him from behind and a wrestle fight between them ensued. PW2 raised alarm shouting for help and several neighbours quickly responded to the alarm. According to th.f;? testimony of PW3, Mohamed Ibrahim, he heard an alarm being raised from the room of PWl in the middle of the night. He quickly responded to it with his Landlord and other neighbours, only to find PWl fighting the appellant in his.room. PW3 and the Landlord joined the fight in order to restrain the appellant. In that fracas the appellant was able .... ~· . --'- . -.... : ' , ., -,,. I - ..... 3 to bite the hand . of PWl and _injured . PW3 on his hand with an iron bar. Eventually. the appellant was apprehended and suffered a serious beat from the people· who responded to · .the-alarm. The matter was reported at Police Station. ·The - appellant was taken- and admitted at Dodoma General· - ··· hospital under arrest. Later the appellant's left leg was amputated due to the severe injuries caused by the m.ob beat in that night of incident. Accordtng to the evfdence of PW4 Detective Coplo· Patrice, the appellant·was interrogated while at hospital. and agreed to give a caution statement ·Exhibit Pl. In that caution statement the appellant admitted to have been in the company of his two colleagues - in that night and .... at the . ;•. f.,-. O •• 1 • r- .. - • _... O • '.fncident without· knowing that their colleagues were up for'; burglary and stealing. He stated that they had told him that they were going to take.,their bicycle at their room in order to escort him to his place at Chinangati. In his sworn defence before the trial District Court the appellant ~t~l~d th_a_t he is a hawker (11tachi □ ga) dealing with petty business. He stated that on the material date after closing his "busines~ and taking some beer he started to return home at about 23.45 hours. On the way he met . -. 4 • PW2 . . PW2 asked him to escort her home. He accepted and escorted PW2 but on reaching at _her · place, her husband PWl came out and started to accuse him {appellant) for flirting· with his wife_. That, PWl suddenly:graf;)bed hHn .and started to beat him up. That, PWl was supported by: his· colleagues to beat up the appellant wi.th iron bar and bricks. He lost consc:t-ous only to wake-up at the hospital. In his memorandum of appeal the appellant has raised three main grounds. One, that the exhibit Pl, the caution statement was recorded contrary to sections 53, 54 and 57 . . . -··~. of the Criminal Procedure Act, Cap. 20; Two, that the trial District Court failed to analyse and consider his def~nce and ' Three~ that there was no sufficient prosecution evidence to prove the case beyond all reasonable doubt. At. the hearing of this appeal the appellant appeared in person and unrepresented while the Respondent/Republic was represented by Mr. --Ncbimbi, learned State Attorney. The appellant did not have much to say, he simply request the court to consider his grounds of appeal. Mr. N~himbi, learned S~ate Attor.ney submitted to the effect that although the appellant was arrested at the scene of crime he was not in position to support conviction for the following reasons. One, the caution statement exhibit Pl 5- was wrongly · admitted. in court because the appellant repudiated it but no inquiry was made by·_the trial District Court according to the law; Two, that evidence of PW1, PW2-- and PW3 ~·. - was weak and full . -of-.. _contradictions . -- hence - . inca pa b le to· form a conviction. Mr. Nchimbi argued that there is no evicjence to prove that the person who entered in the house .of PW1 was the appellant. He further submitted that there was no clear evidence on who actually arrested the appellant. Mr. Nchimbi contended that there is doubt on whether the appellant went at PW1's house to commit offences or he went there in response to the alarm raised. He supported the complaint by the appellant that the trial District Court failed to analyse and consider defence evidence, · stating that no reasons were given in the judgement as to why the trial District magistrate decided to believe the prosecution evidence and disbelieved the · ap·pella·nt defen_ce .. . In my considered opi_oio']. I agree with. both the learned State Attorney and the appellant on the issue -of caution · statement, exhibit Pl. It was wrongly recorded, wrongly produced in court and wrongly admitted. Section 53, 54 and 57 of the Criminal •-~ ... -~ . -• ~ • ~·' ~-- \.• Procedure Act v.vere,. all. contravened. .. • •: • --'-• ~• . ·•-.,.-.,._-•. . •• • • . ._'" :" ,~••·• ~ ._,I.... • The appellant was not addressed as required nor given option to call his near relative or advocate. The caution statement was recorded while the appellant was still admitted in the _,.._,,,_..., _. 6 . . hospital meaning that he was not in good health nor in conducive conditions for such exercise. Furthermore the . caution statement was not recorded in questions and -answers as- required and when it was prddciced in court it · . was not readover before the trial District Court. La?tly having been repudiated and retracted no inquiry was made · by the trial District Court in accordance to the law. Therefore that piece of evidence is valueless and indeed it contain totally different story from what the appellant said _in his defence. The trial District Court was wrong to rely on it. The crucial question is whether the conviction may stand even after expunging exhibit Pl. Let me venture on other grounds qf appeal and. the le~rned State Attorneys position - before I answer· that question, starting with the third ground of appeal, whether there was sufficient evidence to prove the case· be,ond all reasonable doubt. Honestly speaking, from my point of view this case is very clear and straight forward in terms of evidence against the appellant. The offence was committed_ in the middle of the night. The appellant and his co-bandits managed to enter into the house of PWl. In the course of stealing the bandits took a bicycle and a radio cassette but the appellant 7 remained behind-demanding for a mobile phone. Out of fear ·PV'{2 shouted that the m<:>bile _phone was on the charge. The . appellant .quickly move to snatch the mobile phone· but ,...•~-.- - "' · .. courageously PW1 attacked him from the back and a fight : . ~ . . ensued. Out of the alarm raised by PW2 several neighbours . . _. responded _including PW3 who was occupy·ing the next ~oom. The appellant was beaten unconsciously by the angry mob and he was lucky that he escaped death. Is there any contradiction i"n this evidence? Was the ·appellant not arrested in the commission· of the offenc·e. Could PWl, PW2 and PW3 fabricated ·such a story against the appellant? With due respect. to the learned Stc;:1te Attorney the appellant was arrested inside the house of PW1 by PW1 himself and his helping neighbours including PW3. There is ' "'·. .•. . . ' . . . . ·•.:,: no evidence at all to suggest that the appellant went to the house of PW1 in response to the alarm raised. In his defence he claimed that he ~ent there to escort the wife of PW1. , I may agree with the learned State Attorney that minor contradictions, _or ~het 'tie call IQps~_J~flQt_$-.r ~.r.e possibl~- in. 0 I ~ ...• any prosecution case, but for sure in this case there were no such contradictions capable to degrade the credibility of ..... --~- re... ..... -. . .. / 8 the prosecution witnesses. In the case of Capt. Lamu and Another·vs. Rep Criminal Appeal No. 145 of 1991, (CA) • Mwaf)za_ Registry, (unreported.) the (;our:t of Appeal had this ... • • ... • ·-+ ., - ·~- ...... • - • - to say: ".The law would fail to protec~ the communi_ty if it admitted fanciful possibilities to deflect the cause 1 of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence "of course· it · is ·possible but not in the least possible" the case is proved beyond reasonable doubt - -" In addition to that, the stance of the law is that in most ••• fl' • A:, - cases·matters "of cre_dibility of witnesses are the .. domain ·of th~ trial court which had the advantage of assessing the demeanour of the witnesses and evaluating _the credibility of -- ~ such evidence. An appellate court will not lightly interefere in the trial courts finding on credibility unless the evidence reveals fundamental factors of a vitiating nature to which the trial court did not address itself or address itself properly . . . . - see Pia Joseph vs Rep (1984) TLR 161. In the present case there is no such fundamental factors of vitiating nature ..... ... 9 - which have beeri revealed in the evidence. Ground three of the appeal is therefor~ without substance. ~ . Going by the record of proceedings and the judgem_ent- • 4 of the trial District Court, there is no chance to accede to the . . appellants complaint that the·· trial District Court ··failed· to consider and ~ analyse the defence evidence. In his judgement at page 3, the trial District magistrate critically discussed the defence evidence vis-a-v1s the prosecution evidence and came to conclusion that the ·prosecution case was strong and_ cogent. The appellant ·claimed that in that night he escorted the wife of PWl home and PWl su·spected him of having affairs with his wife. In other word~, the appellant admitted to . >.. • --~- : t ,,,. . ~ .., ";.:. ~- t~ . . .. ._.. . .... . - -~ t, ,., • ! • have been arrested and attacked at the house of PWl ·and PW2 in that dead night. It was the same night when PWl's house was bangled. It i➔ surprising t~at when Hadija Mohamed, PW2, the wife of PWl was adducing ·evidence against the appellant, the later failed to cross-examined her about the alleged night escort. If the appellant was truthful aQout tbat. night escQr:t and~ -~Wl 's su~pici~n, .. h.e shoulct ..,.,_ ..- __ . have at least raised the matter in the cross-examination against both PW1, PW2 and even PW3 who found him at the scene. In my considered opinion the trial Resident .10 . Magistrate was correct to dismiss the defer.ice evidence having considered it . .. frpm_ . th.e foregoing it _means - even . without the evide~c;_e. ~ ' of exhibit Pl, the caution statement, the conviction of the appellant stands.· I have noted that on the first count, the appellant was charged under section 294 (1) instead of section 294 (1) and (2) of the Penal Code which provide that if the offence of housebreaking is committed in the night, it is burglary. Nevertheless, having carefully perused ·the trial courts record of proceedings, I am convinced that the charge was properly read over to the appellant and pleaded thereto in accordance to the provision of section 228 of the Criminal Procedure Act. In my considered opinion non-citing of subsection (2) was a minor oversight or topographical error which did not in any way occasion any injustice on the part of the appellant. Th_e agpellant knew precisely well the charge laid against him and he responded thereto accordingly. Thus that minor defect is not fatal to the case. I am aware that the appellant is now a crippled person . . Despite of the fact that he lost his leg in the commission of the offence, the trial District Court was required to seriously 11 ·consider his situation during sentencing. In his mitigation the appellant who_ is a first offender prayed for lenient sentence---stating that the is now a:·lame· persqn. I think he.:- ,,. deserved lenience. In light ·of above reasons I hereby · ·set ··aside the· sentence of ten (10) years imprisonment on the first count and seven (7) years imprisonment on the second count. Instead the appeltant's sentence is reduced to five (5) years imprisonment on ·the( first count and three (3) years imprisonment on the second count. Sentence to run concurrently. The appeal i~ otherwise dismissed for lack of merits. M.S. s.-.~:11,. Ju· G 29/10/2010 Judgement delivered. to9ate 29 th October, 2010 in the presence- of Ms. Shio, Learned State Attorney for the respondent/Republic and the appellant present in person. M.S. S----··· JUDG 29/10/2010 - .'\. . ..,._