ninga so halifa and another vs the republic 2011 tzhc 2112 12 april 2011

IN THE HIGH COURT OF TANZANIA AT DODOMA (APPELLATE JURISDIC TIO N) (DC) CRIMINAL APPEAL NO 91 OF 2010 (ORIGINAL CRIMINAL CASE NO 9? OF 2008 OF KONDOA DISTRICT COURT AT KONDOA) 1. NINGA S/O HALIFA l 2. MOHAMED S/O SELEMANI @CHINAJ......................... APPELLANTS VERSUS THE REPUBLIC......................................................... RESPONDENT 16/03/2011 & 12/04/2011. JUDGMENT KWARIKO, J. The two appellants herein were arraigned before the district court of Kondoa with one count of Robbery with Violence c/s 285 and 286 of the Penal Code Cap 16, Vol. 1 of the Laws, R.E.2002. The prosecution had alleged that on the 20th day of August, 2008 at about 16.00 hours at Itolwa village in Kondoa district the appellants had jointly and together stolen cash Tshs 1,000,000/= from one MOHAMED S/O KIBUTULA and used actual violence by kicking him throughout his boy in order to obtain and retain the money. The appellants denied the charge and at the end of the day they were found guilty, convicted and sentenced to imprisonment of twenty (20) years each with an order of compensation of Tshs 1,000,000/= to the complainant. The facts of the case at the trial were as follows: on the material day the complainant (PW1) was coming from his neighbour’s home when he met the appellants on the way. That the appellants invaded and assaulted him and were able to steal Tshs 1,000,000/= from his trouser pocket. PW1 raised alarms where two people came to answer the same; they were one ALLY S/O MHINTE and another whose name he had forgotten. The assailants run away but the respondents managed to catch the first appellant. The matter was reported to the Village Executive Officer (VEO) who issued PW1 with a letter to go to Jangalo dispensary for treatment. He later reported the matter to the police where a PF3 was issued for him to go to hospital. The PF3 was admitted in court as exhibit P I . In their respective defenses each appellant testified on his own behalf and called no witnesses. The first appellant told the court that he was walking along the road on 5/6/2008 when he was arrested by two militiamen namely ALLY MHINTE and MASHAKA, was taken to police and to court where he faced this charge which he denied. The second appellant testified that he was admitted in hospital on 2 20/08/2008 and discharged on 22/08/2008 where he was arrested on 05/11/2008 to face the present charge which he denied. The trial court found that the prosecution case against the appellants was proved beyond any shadow of doubt and hence they were convicted and sentenced as such. Dissatisfied with the trial court’s decision the appellants filed this appeal. In their joint memorandum of appeal through their lay hands the appellants raised about seven grounds of appeal which essentially boil to one point of complaint that the prosecution case was not proved to the standard required in law. They raised several points of dissatisfaction on the prosecution evidence against them. During the hearing of the appeal the appellants reiterated their grounds of appeal and prayed the same to be allowed. On the other hand the respondent Republic was represented by Mr. Nchimbi learned State Attorney who did not oppose the appeal. This court agrees with both parties that the prosecution case was not proved beyond reasonable doubt against the appellants. One of the appellants' complaints is that the issue of identification of the complainant’s assailants was not proved. Surely, the prosecution evidence did not indicate that the appellants were 3 known to the only prosecution witness before the material day. What PW1 testified was that he was invaded and robbed by the two appellants. He did not indicate that he identified his assailants because they were village mates, neighbours or that he knew them before through other avenues. This is where corroborative evidence was paramount. Since PW1 told the court that one ALLY MHINTE and another answered his alarms then they ought to have gone to testify in that respect. The village leader (VEO) to whom the information about the incident was said to have been reported should have also been called to testify. Equally, the police ought to have come to testify to explain among other things how they arrested the appellants and what made them believe they were involved. The foregoing analysis raises doubt as to whether this incident really occurred. This assertion is fortified by the fact that the complainant’s PF3 was admitted in court in contravention of the clear and mandatory provision of the law under section 240 (3) of the Criminal Procedure Act Cap 20 R.E.2002 (the Act). Under this provision the trial magistrate was obliged to inform the appellants of their right to have the medical officer who authored the PF3 (exhibit PI) to be summoned to court for examination or cross examination as the case may be which obligation he did not perform. This omission was fatal and it rendered the PF3 illegal evidence and thus it is expunged from evidence (See ARAB ABDU HASSAN VR; CR. APP. 4 NO 187/2005, COURT OF APPEAL OF TANZANIA AT MTWARA, (UNREPORTED). Therefore the prosecution did not prove if the complainant was assaulted and injured and if this incident happened at all. The other complaint by the appellants is that the trial court erred in law to convict them on the evidence of a single prosecution witness. As rightly submitted by Mr. Nchimbi learned State Attorney the law does not provide specific number of witnesses upon which a particular issue can be proved. What matters is witness’s credibility and truthfulness. Thus it was not illegal that there was only one prosecution witness in this case. However, in the prevailed circumstances of this case PW1 evidence ought to have been corroborated by other witnesses he had mentioned in his evidence. The complaint by the appellants that the trial magistrate contravened section 312 (1) and (2) of the Act in his judgment is unfounded since this law was complied with by the magistrate in this respect. Lastly, the trial court applied the principle of proof of this criminal case beyond reasonable doubt contrary to the appellants’ complaint that a principle of proof on balance of probability was applied in this case. 5 For what has been discussed herein above I hold that the prosecution case was not proved to the standard required in law and thus I allow the appeal, quash the conviction and set aside the sentence and the order of compensation. It is thus ordered that the appellants be released from prison unless they are further held for other lawful causes. Order accordingly. (M.A.KWARIKO) JUDGE 12/04/2011 AT DODOMA 12/4/2011 Appellants: All present. For Respondent: Mr Kyando, State Attorney.