20101105 TZHC Dodoma

_IN THE HIGH COURT OF TANZANIA AT DODOMA· JDC) CRIMINAL APPEAL NO. 28 OF 2010 . (Original.Criminal Case No. 333 of 20.07 · . of the Distrlct Court of Dodoma) ELIA S/0 SEVERINE ................. AP PELLA.NT I VERSUS THE REPUBLIC ................... RESPONDENT JUDGMENT· 25/10/2010 & 05/11/2010. KWARIKO, J: The appellant herein was originally arraigned before the trial court for the offence of Armed Robbery contrary to section 287 A of the Penal Code Cap. 16 Vol. 1 Revised Edition 2002 as amended by Act No. 4 of 2004. He had pleaded not guilty to the charge and at the end of the trial he was found guilty, convicted and sentenced to thirty (30) years imprisonment. The facts of the case at the trial reveals from the prosecution that one JUMA HAMISI, PWl was sleeping in him l I : (. . : ' .Municipality on home at Chang' ombe area within Dodoma . ,I: 30/8/2007 together . with the appellant · herein who .was his · employee. At about 02.00 am PWl was awaken from his sleep when he felt .a sharp object penetrating between his ribs. H_e saw the appellant taki~g- his Shs. 100,000/= and a mobile phone and vanished through the door when he ran away. PWl cried for help and lost consciousness after his "' landlord one AMON MESOMAPY A, PW2 came to his rescue and found him oozing a lot of blood from his stomach. He was sent to hospital. after he got a PF3 from the Police. PWl regained · consciousness after two months. In his defence the appellant did not deny that he knew PWl before. He only denied to have been in PWl 's home at the material night and that he did not know PW2 before. He r testified that he was sleeping in his aunt's home at Nkuhungu area during the material night. Before this court the appellant filed this appeal against his conviction and sentence where he raised about five grounds of appeal, where if properly configured there are four main complaints by the appellant which are; That, the trial court erred in law when its judgment contravened the provisions of section 312 of the Criminal Procedure Act; the 2 I. trial C:Ourt erred in law and fact when it believed the insufficient prosecution evidence in relation ·to the alleged crime; that the trial court erred in law and fact when it believed the evidence . . . by PW 1 as to ·the identity of his assailant and lastly, that the trial d- court erred in law when it. acted upon the PF3 (Exhibit P1) contrary to the law_. In his submission before the court during the hearing of the appeal, the appellant only irnplored this court to allow his grounds of appeal. On the other hand Ms Shio learned State _Attorney argued this appeal on behalf of the respondent . l t Republic. Ms Shio did not support the appellant's conviction in respect of the offence of Armed Robbery he stood charged as its ingredients were not established by evidence. However,_ Ms Shio implored this court to. find insteady that the offence of Grievous Harm had been established against the appellant and that she prayed the court to substitute the conviction .in that respect. It was Ms Shio's further contention that the appellant's identification at _the scene was not at issue since he was the only one who was s-leeping in the same room with the complainant at the material time. The issue to be decided in this appeal therefore is whether the same has merits. 3 As· for the first complaint by the appellant in relation to the contrav:ention of section. 312 of the· Criminal Procedure Act by the triql court; which was not specifically reacted on by the learne<J State Attorney; I went through the trial court's judgment= and. found that the same compl·ied with the cited law since it reviewed the evidence on record, contained points for determination the decision thereon and the reasons for the . deci~ion .. Therefore, this complaint is baseless and it is hereby ' . . dismissed. Secondly, the· appellant. contended that the trial court convicted him on insufficient prosecution evidence in relation to this cri,rne. Also the learned State Attorney did hot have anything to say about this complaint. The appellant was emphantic that the prosecution evidence contradicted each other on the material time between 2.00 am as testified by , PWl; 3.00 am by PW2 and 3.55 am in the charge sheet. It is my considered opinion that the timings in relation to the occurrence of the incident in this respect was not of much concern since it is within reasonable estimation between two individuals who· might not have been wearing and observed watches at the time they alleged the incident had occured. As for the charge sheet, this court believes that the time could be correctly stated since the police ought to have a watch. After all the appellant's complaint at this stage 1s an 4 ... ·_afterthought since he ough.t to have raised it during the trial so · that th~ witnesse? could. haye explained the differen_ces and the trial .court could h_ave· decided the same. -Also, the appellan~ along side with the for~going, he . . complained that the evidence of PW 1 and PW2 ought to have been corroborated by local area leader or other tenants· and further he assailed these witnesses as to his identification at the scene. As for the issue of identification Ms Shio was of the view . that this was of no concern since the appellant was the only person who was in the same room with PW·1 at the time of. the alleged incident. In his own words the appellant' stated that he had no quarrels with the complaint. I found that there is no sugg~stion in the entire evidence to the effect that the , complainant could have set to tell lies as to the appellant's presence at the scene. The evidence do not either show that . PW 1 was in any special or extra- ordinary relationship with PW2 apart of landlord and tenant relationship so that they might have colluded to fabricate lies in respect of the appellant. After all the appellant admitted during the preliminary hearing of the case that he was at Chang'ombe during the material night. Therefore, PWl and PW2's evidence was enough and · did not need any corroboration. 5 Now, did in this case the appellant assail the complaihant .in_dny way?. PWl testified that the w<?ke-up from sleep after he feit a sharp object" penetrating his_ribs and saw the appellqnt take his Shs. l 00,000/= and mobile phone before he vanished ~ through the door. That, there was electric light in the room. That he raised· alarms to call his landlord and he lost consciousness. PW2, the landlord testified that he heard PW l crying for help ·and when he got there found him lying on the door and blood -was 'coming out from his stomach and that the appellant who was known was sleeping in the same room was nowhere to be seen. . -· . However, th~ foregoing evidence does not prove the offence of Armed Robbery not because th~ ingredients of the same had not been established not as Ms Shio has suggested but for a different contention. Ms Shio suggested that there was no need for the appellant to have used a- weapon in order to · r commit robbery since the complainant had not resisted the same as he was in sleep. The statut_e wnich creates this offence · states that a person may use weapon either to obtain or retain complainant's property. Therefore, a thug may also use a weapon to make sure that he retains the property he has stolen or robbed even if the victim has not resisted. That is why it is not uncommon to hear that after the armed robbers had already 6 ... ' ·, .,. stole·n property have fired ·gun shots before they leave the scene. Thus, my contention for the assertion that Armed Robbery ~ was not proved in this case lies to the fact that initially PW 1 did · .not tell anybody that the appellant had robbed him· money and mobile phone. This is so because PW2 did not tell the court that PW 1 had informed him that the appellant had robbed him anything .. Although PWl testified that he lost consciousness soon after he cried for help from PW2 but the latter did not tell the court tho! he (PWl) had lsot consciousness and instead he said that PW 1 was all the time as.king for assis-tance when they went to help him. This· means that he was oble to talk and he : must have told them that the appellant had robbed him if at all it was the case. PW 1 could also have stated before the police that the · appellant had robbed his property so that they could prefer a relevant charge. PW 1 must have not fold the police that he was robbed that is why initially they only preferred a charge of Grievous Harm against the appellant which was substituted eight months later. Therefore, the evidence in relation to Armed Robbery is lacking iri the prosecution case. 7 However, as I indicated earlier, the prosecution evidence proves that the cornplainant had been injured by ·. the appellant for reasons :only known to H,-em with_ a _sharp obj_ect which was not· proved to be a knife as the charge sheet had ~ indicated since Pw·1 did not testify to that. effect. The only question for determ.inatio·n is ·whether the co~plaint sustained grievous harm. · The only evidence which could prove the assertio"'n that the complainant sustained grievous harm could only come from a medical expert. There was no any medical officer . summoned in that- respe~t and the PF3 ·was admitted in contravention of :the law . under sectiqn 240 (3) of the Criminal . Procedure Act. This law t>bliged the court to inform an accused of his right to require the medical officer who authored any medical report to be summoned for cross-examination. Since therefore the court contravened the law when it admitted the ., PF3 in evidence I find that the same is not good evidence. The PF3 is also found suspect as it was filled by a medic<;)! officer about one year since the occurrence of the incident hence its contents are doubtful. The PF3 is thus expunged fro·m evidence. Consequently, I find that the prosecution evidence proved the offence of Unlawfully Wounding and thus the conviction for charge of Armed Robbery is hereby quashed ... and substituted with _conviction for the charge of Unlawful · Wounding contrary to section 228 ( l) of the Penal Code Cap. 16 Vol. l Revised Edition 2002. Thus·, the appellant is sentenced to imprisonment for a period equivalent to the time he has spent in custody after his conviction for the former offence. Since the appellant has completed his sentence, he is here~y ordered· .to be released from custody unless his ·•· continued incarceration is in connection with other lawful causes. Order accordingly. .. . · ---------- . ::~-~) JUDGE - 05/11/2010 .,. Court:- Right of Appeal fully explained. ~-;· / Ii I' JUDGE 05/11/2010 AT DODOMA 05/11/2010 9 ft Appeilant: Present For Respondent: Ms Chrmpaye, State Attorney. ;, JUDGE 1.: \-,· . ·. \\<~/ _ . _:.:;/95/11/2010 ....,~,~,;~,;i~~;;:;i;;;~::;;.",;"' .