20111216 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA AT DODOMA DC CRIMINAL APPEAL NO. 98 OF 2010 (ORIGINAL KONGWA DISTRICT COURT AT KONGWA- CRIMINAL CASE NO. 239 OF 2001 - BEFORE J.P. MTUIY, ESQ., PRINCIPAL DISTRICT MAGISTRATE) NAADI BIRAULI ..................... APPELLANT Versus THE REPUBLIC ...................... RESPONDENT 19/10/2011 & 16/12/2011 JUDGEMENT HON. MADAM, SHANGALI, J. The appellant NAADI S/O BIRAULI, a young man of 22 years of age was charged with the offence of armed robbery contrary to section 285 and 286 of the Penal Code, Cap 16. It was alleged that on 3rd December, 2001 at about 07 .30 hours at Chu bi Village within Kondoa District, the appellant stole one Bicycle valued at TShs.60,000/= the property of one lgii s/o Ngaida and immediately after stealing he assaulted him using a bush knife in order to retain it. 2 Upon hearing the evidence from two prosecution witnesses (PWl & PW2) and the appellants defence the trial District Magistrate was impressed by the prosecution evidence. As a result he convicted the appellant and sentenced him to serve a term of thirty (30) years . imprisonment together with twenty strokes of the cane. The appellant was also ordered to pay to the victim TShs.100,000/= as compensation. The appellant was dissatisfied with that decision hence the present appeal against both conviction and sentence. The facts of this case are brief but somehow involving because·the language used by the trial District Magistrate is incomprehensible. It goes that in the morning of 3/12/2001 at about 7 .30 a.m. Ringi Rajabu (PWl) left home riding his bicycle make (phoenix). While along the path he was invaded by the appellant who was wearing mgorole. That the appellant draw a bush knife and assaulted PWl by cutting him on the head, arm and shoulder while lamenting that, the very day to be his (PWl's) last day. Following the assault PWl dropped down l unconscious. Suddenly one Saidi Delao (PW2) appeared and raised alarm. The appellant fled away with the bicycle but due to the rain he threw it in the nearby bush and took to his heels. Due to the alarm raised by PW2, the appellant was chased by several people but managed to disappear. PWl was later taken to hospital and the incident reported at the police station. PWl did not say how he identified the appellant who had covered himself with mgorole but he did say he 3 knows the appellant because he is his in-law. PW2 claimed that he identified the appellant who was wearing white shirt and a trouser. In his sworn defence the appellant stated that on 30/11/2001 he went to Endasaki to search for his wife who had absconded with children. That on 7/12/2001 he was arrested at Riroda Auction Mart by militiamen and brought to Kondoa Police Station where the present charge was preferred against him. He produced a letter of introduction Exhibit 'D' issued on 30th November, 2001 by Ituswi Village Executive officer permitting him to search for his wife and children within the whole area. In short the appellant raised a defence of 'alibi' claiming that on 03/12/2001 when the offence was committed he was not in Chubi Village. As I have stated above the trial District Magistrate was impressed by the prosecution evidence and ignored the appellant defence. In this appeal the appellant is still protesting his innocence claiming with emotion that the case was framed against him. His memorandum of appeal contains a good number of complaints which boils down to two main issues namely whether he was properly and correctly identified and two, whether there was sufficient and credible evidence to ground a conviction against him on the serious offence of armed robbery. 4 Ms. Seif learned State Attorney who appeared for the respondent/Republic supported the decision of the trial District Magistrate on the ground that the appellant was identified by PW1 who is his in-law. Then PW2, who was independent witness testified on how he witnessed the robbery incident and raised alarm. However, the learned State Attorney conceded that PF3, exhibit Pl was produced and admitted in court contrary to the law. With much respect to the learned State Attorney, I totally and completely disagree with her that there was sufficient and credible evidence to prove the charge against the appellant. First of all, the trial District Magistrate ignored the appellant's defence of alibi by observing that the appellant should have said much more as to why should PW2 testified against him. I am not sure if the trial District Magistrate was calling upon the appellant to prove his 'alibi' or he was implying the weakness of that defence, but at least I know that there is no legal obligation for the accused person to prove his 'alibi' and further more conviction cannot be based on the weakness of the defence. It is the duty of the prosecution side to produce watertight evidence capable to dismantle and disintegrate the alibi in order to warrant a conviction. In this case, that was not done. There is no prosecution evidence to show how the appellant was arrested. The only evidence to that 5 effect is that of the appellant that he was arrested on 7/12/2001 at Riroda where he was looking for his wife and children, having left Chubi village on 30/11/2001. Therefore in the absence of the prosecution evidence on how the appellant was arrested, the defence evidence should have been believed to be the correct position. On the issue of identification, PW1 claimed that he met the appellant covered himself with Mgorole. It is not clear how the appellant covered himself or which part of the body was covered by the said mgorole. Then we have the evidence of PW2 saying he identified the appellant who was wearing a. white shirt and a trouser. That contradiction is very serious and indeed it makes the identification by PW1 and PW2 outrageous. It is trite law that in a case depending for its determination essentially on identification be it of single witness or more than one witness, such evidence must be watertight even if it is evidence of recognition (see the case of Dorika Kagusa vrs Rep. Criminal Appeal No. 174 of 2004 - (unreported). Another shortcoming is that according to the evidence of PW1 the appellant threw away the bicycle because of the rain, but according to PW2 the appellant threw away the bicycle because of being chased by people. First of all if PW1 was assaulted and dropped unconscious it was not possible for him to see the appellant throwing away the bicycle because of rain. Secondly, it is amazing that no bicycle was produced in court as exhibit and no reasons were advanced for the failure. 6 On the issue of PF3, exhibit Pl Ms. Seif Learned State Attorney correctly conceded that section 240 (3) of the Criminal Procedure Act was not complied with. Indeed the trial District magistrate omission to explain to the appellant his right to have the medical doctor who prepared PF3 (Exhibit Pl) summoned to testify at the trial was a fundamental irregularity which occasioned miscarriage of justice because the appellant has consi~tently claimed that there was no armed robbery committed and that the whole story was fabricated against him. One more thing, I have also noted that the charge sheet indicate the complainant to be one Ingii s/o Ngaida, but in the proceedings the complainant (PWl) is Ringi Agaida, and then in the judgement of the trial court he is referred to as Ringi Rajabu. It is not clear to me as to what caused such discrepancy on the name of the complainant. For the above reasons and observations, I should stop here with a conclusion that there was no sufficient and credible prosecution evidence to prove the charge beyond reasonable doubt against the appellant. Let me say that trials in serious charges like armed robbery which carries serious punishments should always be conducted with some seriousness and the standard of proof thereof should be taken seriously. 7 This appeal is therefore allowed. The conviction against the appellant is quashed, the sentences imposed including the order of compensation against him are set aside. I order for the immediate release of the appellant from prison unless he is held on another· different and lawful matter. M.S. S