20110325 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA .,...-\ . . ., ) AT DODOMA DC CRIMINAL APPEAL NO. 73/2010 {Original Criminal Case no. 185/2009 of Dodoma District Court). BAKARI MUSA .................................. APPELLANT VERSUS THE REPUBLIC ........................... RESPONDENT JUDGMENT. KIBELA, J. The appellant, BAKARI MUSA, was charged with the offence of Armed Robbery c/ss 285 and 287 'A' of the Penal Code Cap 16 of the Laws (RE 2002.) He was convicted and sentenced to thirty (30) years imprisonment in jeal. The appellant aggrieved with the conviction and sentence has now appealed before 15 counts. The brief facts of this case are as follows; on 16th April, 2009 at about 8.30 hours at area 'C' within the Municipality, District and Dodoma 1 Region the appellant together with his fellows hired a taxi at 4.00 hours and hijacked its driver one shadrack Nadoo PW1 and put him inside the cars boot. Thereafter they proceeded up to area c at the shop owned by the complaint one Mathew Albert Munichi PW3. PW3 did see that taxi with Reg. T 240 AER whose number he was not sure to be connect when he testified before the trial count. It was at that time when one person came out of the said taxi and went up to the PW3 shop. At the shop there were two other person where one asked for cigarette and another for Dasani water. The person who was from the taxi asked for 10 cartons of Africa water. PW3 decided to go to his sho_p's store. One person followed him and held him lightly from his back. Pw3 was told that they needed money Tshs 25 million. PW3 told him to have none. Then arrived other person about five to accompany that person who had tightly held Pw3. They were with a muzzle loader arm (gobore). They did stole cash sh. ?million which were under the table. Also they took assorted beverages (hard drink) valued at Tsh 12 million. They stabbed Pw3 either an iron bar or a panga which fact Pw3 was not sure of the item they used. However he saw them handing a muzzle loader fire arm (gobore) and told him to keep quiet. Then they left the place with their car which they hijacked, From shadrack Nadoo PW1. PW3 did not identify any of them. A day later, Pw3 heard that the robberers were arrested as they left the car at one forest. Asp Jonathan shame PW4 told the trial court on 16/4/2009 at about 8.00 hours, reduced information that five things had invaded Mathew's (PW3) shop at area "C" PW4 decided to go to the scene where he found 2 blood stairn and told that the owner of the shop PW3 was sent to hospital he was told that several shop items together with cash were stolen including alcohol drinks. While at the scene, Pw4 received information that some people at chango'mbe area had seen the car involved in that robbery. Pw4 meet there was shown the direction where the car proceeded. Later Pw4 and another person managed to discover it and it was reg no T240 AMP. However when opened the boot, pwl was found inside Pwl told them to be the driver of that vehicle who was hijacked by the robberers. While PW4 proceeded introgeting Pwl, received a radio cell that was arrested in possession of sure stolen items PW4 met these and found the accused in the dock injured and he had beg with some alcohol bottles. In that plastic beg 4 miller bottles and two grant whimsy were found which are refered as P2. Pw4 was the injured as saved the accused as people was very angry the owner of the car also was brought at that place as he identified the appellant before to dock. Later, Pw4 manage to take the accused/appellant into the car and leave the place to police station. PW4 at central police - Dodoma ordered Insp chausiku PW2 to take accused's caution statement where he contended to admit the act mentioned two other person who planned the robbery. Pw2 did record the said appellant caution statement but when the same was tendered in court the said appellant objected it being tendered as was taken by force. However, the same was received by the trial court and marked as exhibit Pl. But to be frank, Pw2 told the trial 3 courtthat it was on 16/4/2009 in the afternoon as at 15.10 when received not order from Pw4 at complied with it. In his affirmed defence, the accused/appellant, DWl, told the trial court that on 16/4/2009 at about 10.00 hours was to chang'ombe bus stand Before he reached the bus stand met the police officers who stopped him. They arrested and put together with other vagabonds Arrested prior. The police officers phoned to police station where a vehicle was set as they were taken to central police station - Dodoma. On 20/4/2000 DWl was told to be involved in the event which occurred at Area 'C' the fact which he denied on 21/4/2009 he was asked to tribe other ordered to sign a the document. Finally he was set before the trial court charged with two a count of Robbery armed weting which he did not understand. At the hearing of the appeal, the appellant appeared in person and wanted not to add anything to his ground of appeal filed before this court. He adopted and of his ground. The respondent Republic was represented by Mrs. Seif, learned state Attorney. I have happened to go through the appellant's graunds of appeal where generally he complained that the case before trial court was not proved to the required standard i.e. beyond reasonable doubt. 4 Mrs seif, learned state Attorney for the respondent Republic respond to the grounds of appeal denied to support the conviction and sentence out against be appellant. Mrs seif, learned state Attorney for the respondent Republic, submitted important reason that the evidence by all prosecution witness was that the offence was committed from 1.00 hours on wards and there is unless in the proceedings and in the judgment shown that what was the source of light which led the witness to indentify the said appellant before to Mrs. Seif therefore refered this court to a case of WAZIRI AMAN! V.R. (1980) TLR 250 at P.252. I have happened to go through be above cited case. I totally agree with what Mrs Seif has submitted and that upon looking at the charge itself leveled against the appellant clearly shows that the offence committed on 16th day of April, 2009 at about 8.30 hours at area 'C'. That means it was during the day time. However the evidence of shedrack Nadoo PWl, the sole prosecution witness who told the trial court that he identified the appellant. On the material date at 4.00 hours two guys hired his taxi so that they be sent to one bar at area 'C' the fact which he accepted. On the way (PWl) was hijacked by the passenger who hired his taxi lied him with ropes and put him inside car's boot. Explicitly, the evidence of PWl upon the when the offence was connected differed to the time mentioned in the charge sheet. Not only, that even the evidence of the complaint Mathew Albert Mushi (PW3) to some extent contradicted with the evidence Of PW1. Pw3 told the trial court that a 16/4/2009 at about 8.30 hours he was ' robbed of his properties by person who was a muzzle loader firearm 5 (gobore). Also he stated to have been injured by either an iron bar or a mechate (panga). If really it was at 8.30 hour i.e. during the day, PW3 could have managed to have seen the item be robbers used to injure him. However such it was on the night no doubt thus why he failed to identify the item they used to injure him as well as the robberers themselves. From the above therefore, clearly there was contradiction between the evidence of PWl and PW3 as well as the charge itself. In law therefore where such contradiction occur the court has a duty to address them try to solve them where possible as it was observed by the court of appeal in the case of MOHAMED SAID MATULLA. V.R (1995) TLR 3 where it was held interlia that:- "(i) Where the testimonies by the witness contain Inconsistencies and contradictions the court has a duty to address the in Consistencies try to resolve the where possible, the court Has To decide Whether the inconsistencies and contradictions are only minor, whether they go to the root of the matter'~ However, the evidence before the trial court by PWl & PW3 their contradictions and in consistences were not addressed as not defected. But I am of the opion that the contradiction and inconsistences not to the root of the matter. I have been of that opinion or the reason that in law the 6 charge ag~inst the accused person ought to be proved by the prosecution side beyond reasonable doubt as to court has decided in the case of JONAS NILIZE V.R. (1992) TLR 213 at P.214 where my late learned brother, katiti J, (as he then was) held interalia that: "(ii) The general rule in criminal prosecution that the onus of Proving the charge against he accused beyond reasonable Doubt lies on the prosecution, is part of our law, and Forgetting or ignoring it is unforgivable and is a peril not Worth taking." Thus the evidence of PWl & PW3 contradicted themselves as well contradicted with the charge against the accused /appellant. Hence the charge clearly itself proved from the evidence of shedrack Nadoo PWl, it is without uncertainty not the offence was conducted during the night at about 4.00 hours onwards. However, as PWl was the sole prosecution witness who told the trial court to have managed to identify the accused/appellant he was supposed to inform he court the force of the light which enabled him to identify the appellant during the late hours in the night. But as these was so such evidence the I agree with Mrs Seif learned State Attorney when refered to court to the decision in the case of 7 '• ii WAZIRI AMANI V.R. (1980) TLR 250 where the court of appeal held interlia that "(iii) No court should act on evidence of visual identification Unless all possibilities of mistaken identity are eliminated And the court is fully satisfied that the evidence before it Is absolutely watertight. " As the evidence of Pwl did not mention the source of light which led him to identify the appellant was without one of his upper jaw's tooth, much doubt were left before the trial court. The left doubts left by the prosecution side is therefore awarded to the accused/appellant as benefit of doubt. I am of considered opinion left the prosecution side before the trial court failed to prove their case to the required standard i.e beyond reasonable doubt that it was the appellant who committed the offence of armed robbery against the complainant PW3. In conclusion therefore to what I have endevored to give herein above, this appeal succeeds. The conviction against the appellant hereby quashed at the sentence of thirty (30) years imprisonment is hereby' Set side. The appellant is hereby ordered to be released from prison forth with unless otherwise lawfully, held on another matter. Appeal allowed 8 .. Order: accordingly. SIGNED R.M. KIBELLA JUDGE. 25/3/2011. ORDER: Judgment delivered in chamber today 25 th March, 2011 with prosecution of the appellant in person as well as in the presence Of Ms. Magoma, State Attorney for the Respondent Republic. R/A fully explained. SIGNED R.M. KIBELLA JUDGE. 25/3/2011. 9