ramadham hamisi vs republic 2011 tzhc 2161 15 june 2011

AT DOPOMA. (DC) CRIMINAL APPEAL NO. 89 OF 2009 (Originating from Criminal Case No. 69 of 2008 of Singida District Court at Singida) RAMADHAN HAM ISI.......... APPELLANT VERSUS THE REPUBLIC.............. RESPONDENT JUDGMENT 15/6/2011 & 05/ 9/2011. KWARIKO. J : The appellant herein and HAMISI NDOGHWE the then 1st accused were formerly jointly and together charged with the offence of Armed Robbery contrary to section 287A of the Penal Code Cap. 16 Revised Edition 2002 as amended by Act No. 4 of 2004. It was alleged by the prosecution that on the 1st day of February, 2008 at about 19.30 hours at Ughandi village within the District and Region of Singida the two stole Tshs. 100,000/= from one ABDUL S/O MOHAMED and before or after the stealing did cut him with machete in different parts of his head in order to obtain and retain the said property. When the charge was laid before their door the two denied the same hence their trial. The evidence which was brought at the trial by the prosecution can be recapitulated as follows: On the material day and time the complainant ABDUL S/O MOHAMED, PW1 was in the company of one SALUM S/O HUMBE, PW2 from Senene village and the two were each riding bicycles. Along the journey PW2 execused himself for a short call of nature and PW1 went ahead. After a short distance, PW1 found big stones aligned on the way and saw the appellant and HAMISI NDOGHWE then 1st accused with club and machete and they followed him. PW1 sped up but his bicycle broke down hence the two reached and assaulted him with machete in the head and hands. He tried to fight back but was overpowered hence raised alarms where PW2 came to help him. However, the appellant and another searched his pockets and took Tshs. 100,000/= and his shoes. The assailants ran away when PW2 threw stones to them. PW1 was taken to hospital via Police Station where he was issued with a PF3 for treatment. He was admitted in hospital for three months. The PF3 was admitted in Court as exhibit PI. In his defence the appellant denied the allegations and testified further that he was invaded by six people at his home on 14/2/2008 and was assaulted with machete until he lost consciousness. Later he found himself in hospital and his x-rays pictures were admitted in Court as exhibit D3. The appellant discredited the prosecution evidence as being contradictory and weak against him. This was also the account of the 1st accused. At the end of the trial the Court found that the appellant and another were sufficiently identified at the scene since they were known to the witnesses before as village mates and there was enough light for easy of identification. They were duly found guilty, convicted and sentenced to thirty (30) years imprisonment each. Being aggrieved by the trial court's decision the appellant and another filed this appeal each with his grounds of appeal. However, before the appeal was heard it was evidenced that HAMISI NDOGHWE had escaped from custody way back on 20/5/2009 and thus his appeal was dismissed for want of prosecution on 15/6/2011 when the same came before the court for hearing. In his memorandum of appeal the appellant raised about eight (8) grounds of appeal where he is essentially complaining that the case against him was not proved to the standard required in law. During the hearing of the appeal the appellant only adopted his grounds of appeal and did not have much to say. Whereas Mr. Kahangwa Senior State Attorney appeared and argued the appeal on behalf of the respondent Republic and he did not oppose the same. He gave reasons for not opposing the appeal which are not different from the appellant's grounds of appeal. Now, the issue to be decided by this court is whether the case against the appellant was proved to the standard required in law. As rightly submitted by both parties the main issue at the trial was whether or not the appellant was identified at the scene of crime. This Court agrees with both parties that the prosecution witnesses, PW1 and PW2 did not say if it was the appellant who was identified to be one of the complainant's assailants. This is so because at the material time i.e 19.30 hours it must have been dark as that time is night time as defined under section 5 of the Penal Code Cap. 16 Revised Edition which says "night" is period between seven O'clock in the evening and six O'clock in the morning. This is contrary to what the trial Magistrate said that at 19.30 hours is still day time. Therefore, at that time the witnesses ought to have explained what source of light helped them to identify PW l's assailants. The witnesses only said that there was light at the scene without specifically mentioning the source of light. If the witnesses identified anybody at the scene they ought to have described his appearance and/or his outfit. Also, if the witnesses had identified anybody at the scene there is no evidence to show that they mentioned him anywhere after the incident. PW3, No. F 764 D/Sgt DIONIZ did not say that the witnesses had mentioned the appellant or anybody that they identified him at the scene. Thus, there is no evidence to show that how the appellant was connected with this incident. Therefore, the prosecution did not prove that the appellant was identified at the scene. Further, the witnesses' contradicted each other when PW1 said that it was PW2 who answered the alarms after invasion and took him to hospital while PW2 said that many people, including him, answered the alarms by PW1 and took him to hospital. This brings doubt as to whether this incident occurred as the witnesses said it did. Coupled with the foregone, PW1 did not prove that he had been invaded and assaulted with machetes. This is so because the PF3 (exhibit PI) was admitted in court contrary to the law under section 240 (3) of the Criminal Procedure Act Cap. 20 Revised Edition 2002. This law obliges the trial Magistrate to inform the accused of his right to have the Medical Officer who authored the Medical report like the said PF3 to be summoned for examination and/or cross-examination. This was not done by the trial Magistrate and when the appellant had objected it nothing was done and the objection was not considered at all. Therefore, the PF3 was not good evidence and it is hereby discarded. For the foregoing therefore, this court finds that the prosecution case was not proved beyond doubts against the appellant. The appeal is thus allowed, conviction quashed and sentence set aside. It is thus ordered that the appellant be released from custody unless otherwise lawfully held. It is so held. (M. A. KWARIKO) JUDGE 05/ 9/2011 AT DODOMA. 05/9/2011 Appellant: Present For Respondent: Mr. Nchimbi State Attorney. C/c: Ms. Komba. JUDGE 05/ 9/2011