20111012 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA ATDODOMA (APPELLATE JURISDICTION) (DC) CRIMINAL APPEAL NO 61 OF 2011 (Original Criminal Case No 10 of 2009 of Kongwa District Court at Kongwa) 1.NDEGENZIKU 1 2. MICHAEL VERSUS THE REPUBLIC............e........i.......n........n.RESPONDENT JUDGMENT 07/09/ 2011 & 12/10/2011 KWARIKO, J. The two appellants herein stood charged in the trial cotrt with the offence of Armed Robbery c/s 285 & 286 of the Penal Code Cap. 16 R.E. 2002 as amended by section 287A of Act No. 4 of 2004. It was alleged by the prosecution that the two had jointly and_together on the 21st day of November, 2008 at about 01.00hours atN rniVillgewithinKongwaDistrict inDodomi - Region stolen cash Tshs. 400,000/= 5 bicycle spares, 5 pairs of khanga,. 10 packets of cigarettes, one carton of fresh water and 3 carton of juice all total valued at Tshs. 1,200,0001= from one BAHATI MLEWAand used a machete to threaten the said person said property. The appellan€ had denIedtheEhargTeh TiEëãtTiãl aonducted - 1 - The facts of the case at the trial by the prosecution can be recapitulated as follows: On the material time BAHATI sb MLEWA, PW1 who was a shopkeeper for SHUKURU MLEWA, PW3, was sleeping in the shop with one LAURENT sf0 NG'ORO when they were awaken by a bang at the door. The door was broken and completely removed from the frames. Two bandits entered inside armed with a machete and torches to help them see. The bandits demanded money from PW1 and cut him with the Machete in his fingers. Out of fear, PW1 handed over Tshs. 400,000/= to the bandits and they stole shop ftems. PW1 and Pw2 were ordered to go outside where there were other thugs who fired gun shots in the air. Other villagers were scared by the gun shots hence did not come closer. PW3 was informed of the robbery and then the village chairman. A follow-up of the bandits was conducted where the appellants herein were found at Kidongo Village in Kiteto District where they were selling the stolen properties in the streets. These were bottles of chemicola, seven bottles of juice and 97 sweets (exhibit P1) and two packets of Big G (200 Pieces) and five bottles of water (exhibit P2). A bag where the properties were carried was admitted as exhibit P3. In his defencetbe 1st appellant_testftied on his own behalf and called no any witness. He said that he was arrestèdt t60O hours on 21/11/2008 when he had just come from the farm by the people who asked him if he knew one DEGE and he said he was the one. He denied to haëëh at Lükali oh 21/11/2008 and was sent there and then to Kibaigwa Police Station. The 2nd appellant said was found at Lemenye Village within Kiteto selling sugar cane and was arrested and sent to Lukali together with the 13t appellant. Both denied thëällèätions - 2 At the end of the trial the court found that the prosecution case had proved that the appellants were sufficiently identified by PWI and PW2 at the scene. That the appellants were also found in possession of stolen properties hence were well connected with the offence charged. The appellants were found guilty and accordingly convicted. They were sentenced to thirty (30) years imprisonment each. On being dissatisfied with the trial court's decision the two appellants filed this appeal each raising various grounds of appeal. However, the grounds of appeal raise three major points of complaints which are; First; that the evidence in respect of their identification was not water tight, second; that, the evidence in relation to the robbery incident lacked corroboration and third; that the alleged stolen properties were not sufficiently identified by the complainant. When the appeal came for hearing the appellant did not have much to say as they only argued the court to consider and allow their appeal. On the other hand the respondent Republic was represented by Mr. Nchimbi learned State Attorney who supported the appellant's appeal. The reasons Mr. Nchimbi forwarded to support this appeal did not materially differ with the appellant points of complaints, I will refer to them soon. The issue to be decided here now is whether this appeal has merits. This court agrees with the both parties that the prosecution case againstthe appellants was not proved beyond reasonable doubts. Firstly, as rightly submitted by both parties the evidence in relation to the appellants' identification was not watertight. _______________not explain the intensity _of torch tight at the same that enabled them to 3 now settled their torch light is not effective in identifying thugs at night and more so when it is showered towards the witness by the thugs. In the case PW1 and PW3 said the thugs were the ones who were holding the torches. They did not say who was holding two the torch among the appellants. The witnesses did not state the duration of time they had the thugs under observation. Three, the witnesses did not state the distance between them and the thugs and they did not explain the appearance of the thugs. The proper conditions for identification were lacking. [See MUSA OMARI V R, Criminal Appeal No. 83 of 2000, Court of Appeal of Tanzania at Dar es Salaam, (Unreported)]. Secondly, the witnesses did not mention the names of the people they identified at the scene to the persons who immediately came at the scene. Actually, no one came to testify that they attended the alarms as PW2 said people gathered to answer the alarms. This is different from what PW1 said that villagers feared to attend the alarms due to gun shots. This creates doubt as to whether there was such incident in the village. PW1 did not prove that he had his finger cut by the thugs; no any medical report was tendered to prove his injuries. PW4 a police officer No. E 7713 DC HASSAN did not say the witnesses mentioned to him the names of the thugs who were identified at the scene. Further, PW1 and PW2 contradicted in their evidence in relation to how the appellants were found after the incident. While PW1 said after the incidentPW.2. went to searchL for the appellants, PW2 said their it was PW1 who first set to look for the appellants. This adds to the foregoing doubts in the prosecution a: -- • ——. 4 As to the identification of stolen property, the witnesses did not prove that exhibit P1 and P2 belonged to the complainant. These items were common shop items and unless special marks were mentioned and described, they were not proved to be the complainant's property. They were not distinguishable from any other similar commodities. Also, exhibits P1, P2 and P3 were admitted in court contrary to the law since the appellants were not given opportunity to say anything before the same were admitted in evidence. Thus, the appellants were denied their right to be heard before they were concerned. Therefore these three exhibits were not good evidence and are hereby expunged from the record. Lastly, the evidence on record did not therefore prove the charge against the appellants beyond reasonable doubts. I therefore, allow the appeal, quash the conviction and set aside the sentence of thirty (30) years imprisonment the appellants have been serving. It is thus ordered that the appellants be released from custody unless otherwise lawfully held. It is so ordered accordingly. (14. A... k ARIKO) JUDGE 12/10/2011 5 DELIVERED AT DODOMA 12/10/2011 Appellants: All present For respondent: Ms Luwongo, State Attorney C/C: Ms Komba A. KWARIKO) JUDGE N :,/ 12/10/2011