20110228 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA AT DODOMA (DC) CRIMINAL APPEAL NO. 57 /2010 (Original Criminal Case No. 134/2009 of Manyoni District Court) JI NASA S/O MASH AKA ................................... ... APPELLANT VERSUS THE REPUBLIC ................................................ RESPONDENT JUDGEMENT 21/2/2011 & 28/2/2011 KIBELLA, J, The appellant, JINASA S/O MASHAKA stood charged with the offence of Robbery with violence C/SS 285 and 286 of the Penal Code. He was convicted and sentenced to fifteen years imprisonment term in gaol as well as ordered to pay compensation to the complainant to the tune of Tsh. 150,000/=. Dissatisfied with the conviction, sentence and order for compensation has appealed before this court. The case by the prosecution at the trial court was that on 10/8/2009 the complainant one Kulehiwa Semeka Pw 4 was at his home together with the appellant who was 1 \ treating Pw4's legs with local medicines. The appellant is a local medicine man. On the same date at 4.00 pm the appellant took the complainant to the bush where he beat him with a stick and he became unconscious. It was at that time the appellant robbed his cash money to the tune of Tsh. 480,000/=. That amount was from the sale of complainant's cattle. The complainant's senses resumed at 7.00 pm. After the complainant was beaten and robbed his money by the appellant the appellant left 1'he place and went away with his bicycle. At the bush there were no other person except the complainant and the appellant alone. Mwita Kulehiwa ( PW2) told the trial court that on 10/8/2009 at 4.00 pm his wife informed him that the appellant had beaten their father and robbed his money . PW2 decided to his home and met his father already beaten and was bleeding. The complainant ( PW4) told the PW2 that he was robbed his money cash T~h. 480,000/= by the appellant. Thereafter PW2 reported the m·atter at the village offices where he met Pwl, the VEO. Upon such report the PWI ordered one militiaman and PW2 to arrest the appellant. They obliged and did arrest the appellant and sent before the VEO, PW I. The appellcmt when asked by PWI if he had money in his pockets he denied to have any. 2 However, when searched by PW I in the presence of PW2 and one Salehe Hatibu PW3, the appellant was discovered to be in possession of Tsh. 462,000/= . According to PW2 and PW I the appellant agreed to have beaten the· PW4 and robbed his money cash Tsh. 480,000/=. In other words the appellant confessed to have committed the offence before the VEO. According to Pw2, the appellant also told him that he had used Tsh. 18,000/= for buying beer as well as petrol for the motorcycle as needed to leave the place. Later the complainant PW4 was sent before the VEO where he was found still bleeding. The complainant could not talk properly but mentioned the appellant by his name that was the sole who beat and rob his money cash Tsh. 480,000/=. Thereafter, the complainant and the appellant were sent to police station at Manyoni. The complainant was issued with PF3(referred as exhibit Pl) for medical treatment at Manyoni. The complainant was admitted and treated at Manyoni District Hospital for one week. At police the appellant was interrogated by PW5, PC Yoram and he confessed to have robbed the victim that amount of money. It was there from when D/Sgt Ramadhani PW6 when recorded appellant's cautioned statement which is referred as exhibit P2. The cautioned statement was then read over to the appellant in court. The appellant then replied that the witness who wrote his 3 cautioned statement forced him. It was the PW5 PC Yoram who told the trial court that he received a letter from the VEO of Sasilo village which informed him that before the VEO ( PW I) the appellant was searched and found in possession of cash Tsh. 462,000/= and confessed to have robbed the complainant that amount. Also, PW5 told the trial court that the appellant was informed by the VEO ( PWI) that that amount Tsh. 462,000/= was used for transportation of the victim to police and hospital expenses in order to save the life of the victim . In his defence on oath, the appellant Jinasa Mashaka , DWI, told the trial court that on l 0/8/2009 was at Sasilo village where met with Mwita Kulehiwa PW2 the son of the complainant . PW2 told the appellant that his father Kulehiwa Semeka PW4 was suffering form his legs. Since the appellant was a local medicine man, agreed to treat PW4 for Tsh. 50,000/=. The appellant treated the complainant for five days. It was on l 0/8/2009 when the appellant together with Pw2 took an evening walk to a nearby local liquor shop and had a drink. Later, PW2 left the appellant at the pombe shop. At his return came with other people who put under custody the appellant and sent him to the village Offices. He was sent to the village Offices on allegation that he had beaten and robbed money from the PW 4. At the Village 4 .' \ offices , the appellant was searched by the VEO , PWI , and found in possession of cash Tsh. 805,000/=. When further interrogated by the VEO , the appellant stated to have a licence for local medicines which he showed the same. The appellant was then taken to Manyoni leaving his money at the Village Offices. According to be appellant (DWI ),later was discharged and within no more time was again re-arrested afresh . The appellant denied the evidence of PWI that it was not true that he was searched and found with cash Tsh. 462,000/= while the appellant was found in possession of cash Tsh.800,0000/= . Also the appellant denied to have confessed before the VEO and before the PW5 & PW6. However , when cross- examined by the prosecution, the appellant replied that the 4th witness (PW4) on the prosecution side was wounded and gave evidence in court. When arrested, the appellant had a bicycle , a bag as well as cash Tsh. 800,000/=. The appellant filed his memorandum of appeal containing five grounds of appeal . At the hearing of the appeal the appellant adopted all of his grounds of appeal and added that at the village he was arrested and beaten by the citizens. For such beatings by the citizen he confessed to have committed the offence before the VEO. 5 However, when he was sent to police station and interrogated, rejected to have committed that offence. For such rejection, D/Sgt Ramadhani PW 6 asked him as why at the village he confessed and at police rejected. D/Sgt Ramadhani Pw6, took his baton and started beating him up. It was from such - beatings inflicted by PW6 the appellant confessed to have committed the offence. Thereafter, was charged and sent before the trial court where he denied the charge. He was convicted by the trial court for the offence which he did not commit. Generally, the appellant stated to have been framed up. Finally , the appellant stated that the amount of Tsh. 462,000/= which is his property was not tendered in court as an exhibit. Ms. Haonga, learned State Attorney, appeared for the Respondent Republic , supported the conviction entered by the trial court against the appellant. However she declined to support the sentence imposed by the trial court against the appellant. The reasons for supporting the conviction according to Ms.Haonga , learned State Attorney were that , in reply to ground no.2 of appeal by the appellant , she argued that , firstly the offence was committed at 4.00 pm during the day. The appellant and the complainant were before the incident familiar to each other. It was just a day or two since the appellant had arrived at complainant's homesteady for 6 \. treating his legs. Thus Ms. Haonga, learned State Attorney was of the view that the issue of mistaken identification of an appellant could not arise. To further support her argument , Ms. Haonga referred this court on page 2 on top and 3 on the bottom of the proceeding before trial court, showed clear that the appellant knows the complainant and that he had prior been treating him as he is a local medicineman. · With due respect, I totally agree with Ms. Haonga learned State Attorney for the Respondent Republic on that line of argument . However, Ms. Haonga argued that the appellant had confessed to have beaten up the complainant and stole his money. But before this court has declined or retracted his confession. She was of the view that the appellant was supposed to tell the trial court to that effect but failed to do so. The appellant had confessed before VEO as well as before PW6 one E.9874 0/Sgt Ramadhani and his cautioned statement was tendered in court and marked as exhibit P2. With due respect on this point, I beg to differ with learned State Attorney. I have gone through the evidence on record and especially that of the VEO as well as that of PW 6. I have happened togather that the appellant had cross 7 examined the VEO before trial court if really he confessed where the VEO PWI replied him:- "You confessed that you robbed that oldman" For the evidence by PW 6, when prayed to tender the cautioned statement by the appellant and when the appellant was asked if had any objection, he replied:- "The witness who wrote my statement forced me" However, together with the above reply by the appellant, ·the trial court proceeded to admit the cautioned statement by the appellant and stated as follows:- "Court: The caution statement is received as P.11 of this Case". From the reply by the appellant , clearly the appellant had retracted his confession before the trial court. But now the question arises here as to whether the court can base its conviction on such retracted confession. The answer is no, where there is such a retracted confession there is a need for another piece of independent evidence to corroborate it . This was clearly observed by the Tanzania Court of 8 Appeal in the case of HASSAN JUMA KANENYERA AND OTHERS V.R. (1992) TLR 100 where it was held interalia that:- "(iv) Since we have found that Pw4 properly Identified the authors of the two retracted statements as well as the other appellant then her evidence provides corroboration if that was required." The case before this court is within the fours of the above cited authority binding to this Court. As prior observed that the complainant Kulehiwa Semeka . PW4 had properly identified the appellant as the incident took place at 4.00 pm during the day, before the incident the appellant and the complainant were familiar and that there were no any grudge on either side to frame up the appellant . I am of the opinion that the evidence of Pw4 had corroborated the retracted confession by the appellant and the court therefore was to that extent right on reaching the appellant's conviction. Not only that evidence by PW4 but also there was the evidence of PF 3 which proved that really the appellant was wounded on the material date the fact which has been supported by the defence evidence when the appellant was cross examined by the prosecution replied that:- 9 "The 4th witness was woundered and he gave evidence in this court" As I have prior hereinabove stated that the appellant failed to explain before the trial court if was with any grudges with the complainant so that could be framed up as claimed. From the above therefore, I am of considered opinion that ground of appeal no.2 by the appellant is without merit. Turning over to the ground no3 which admittedly can be joined with ground no5 where the appellant stated that cash Tsh. 462,000/= and a stick alleged to have been used by the appellant beating the complainant were not tendered in court as exhibits. Ms. Haonga, learned State Attorney for the Respondent Republic submitted that non- production of the said exhibits did not render the prosecution side fail to prove their case beyond reasonable doubt. However, she went on to submit that the appellant when searched before the VEO (PWI ) found in possession of Tsh 462,000/= out of Tsh 480,000/= . It was the appellant who elaborated that he had spent 18,000/= for beer and fuel as needed to leave the place. The evidence of F. 3578 PC Yoram Pw5 who received a letter from the VEO (PWI) and through that letter, it was explained that the money found in possession of the 10 appellant (Tsh. 462,000/=) was used for journey expenses for the complainant as well as treatment costs. Thus why they were not tendered in Court as well as the stick. That fact was testified before the trial Court by PW 5 where the appellant failed to cross- examine on such fact. However, I disagree with Ms. Haonga on the issue of the stick on its failure to its being tendered in court. From the record there is no where mentioned, but with due respect, I think there was nobody who picked it up since the complainant and the appellant were the sole at the scene of crime . Further that the complainant was beaten up and resulted to his unconsciousness, it is my opinion that the same was left at the scene of the crime or may be the appellant had taken the same and hid it. Further, I agree with Ms. Haonga , learned State Attorney that Tsh. 462,000/= has been alleged before this Court by the appellant to be his property , actually one wonders as before trial Court the appellant had alleged to be found with cash Tsh. 805,000/= or 800,000/= which was his property. It is true that it is surprising now the appellant claims Tsh. 462,000/= to be his property. This has contradicted his evidence before trial Court that it was not true that he was 11 found with the cash Tsh. 462,000/= except Tsh. 805,000/= or Tsh. 800,000/=. The appellant , in his such contradictions in his evidence , clearly shows that his evidence was a pack of lies. However, I am of the opinion that the appellant had admitted the evidence of the prosecution side and corroborated it that realy the appellant was found in possession of Tsh. 462,000/= which was out of Tsh.480,000/= stolen from the complainant (Pw4) and not otherwise. Lastly on this ground I agree with Ms. Haonga that failure to produce the said money and stick could not make the prosecution fail to prove their case beyond reasonable doubt. Therefore I am of considered opinion that ground no. 3 & 5 of the appellant's appeal are without merit at all. For the 4th ground, I agree also with Ms. Haonga , learned State Attorney that there is no law which requires that more than one person should be required to prove the fact and for this case, that the appellant was seen committing the offence charged. Since the complainant Kulehiwa Semeka PW 4 testified to have seen the appellant who beat him at 4.00 pm in the bush and that there was no conditions for mistaken identification of the appellant , PW4 was enough witness and thus ground No.4 is without merit at all. 12 Lastly , and with due respect to Ms.Haonga ,learned State Attorney for the Respondent Republic when declined to support the sentence of fifteen years imposed by the trial court for the offence of Robbery with violence Contrary to section 285 &286 of the Penal Code Cap 16 of the laws (Revised Edition 2002). It is true that the minimum sentence for this offence is thirty(30) years imprisonment in goal as put clear under S.5(a) (ii) of the MSA, Cap 90/1972 as amended by the Act No. 10/1989. This was prior observed by the Tanzania Court of Appeal in the case of RUNGU JUMA V. R{l 994) TLR 176 where it was held interalia that:- "On the totality of the evidence the appellant was rightly convicted of robbery with violence as charged and in view of the amendment of the Minimum Sentence Act, 1972 by Act No. 10 of 1989, the High court rightly enhanced the sentence to thirty " years imprisonment." In our case before us I am of the considered opinion that the trial court rightly convicted the appellant with the offence charged. However the sentence of fifteen years imposed against the appellant was not correct and therefore illegal as was contrary to the MSA ,Cap 90/1972 as amended by Act No. l 0/1989 where the legal sentence for robbery with violence is thirty years imprisonment. 13 In conclusion therefore, the appeal against conviction hereby fails. The conviction entered against the appellant is accordingly upheld. The sentence of fifteen years imprisonment is hereby equally enhanced to that of thirty years imprisonment in gaol against the aP.pellant The order for compensation is left untouched. Appeal is hereby dismissed. Order accordingly. (R. M. KIBELLA) JUDGE 28/02/2011 DATE: 28/02/2011 CORAM: R.M. Kl BELA J,' APPELLANT: Present under custody Respondent: Ms. Shio , State Attorney for RMA: Mr. Magaka. 14 ORDER: Judgment delivered in chambers in presence of the appellant in person as well as Ms.Shio, State Attorney for the Respondent Republic. Right of Appeal explained. (R. M. KIBELLA) JUDGE 28/02/2011 APPELLANT: I intend to appeal further to the Court of Appeal of Tanzania. (R.M.~ JUDGE 28/02/2011 15