20120916 TZCA Arusha

l {CORAM: IN THE COURT OF Al:'PEAL OF TANZANIA ATA~IUSHA i KILEO, J.A.• MBAROUK. l.A., And MASS TI, l.A.) l 11 . I CRIMINAL APPEAL NO. 14 & 15 OF 2009 !: :~;L~~ ::~t} . . . . . . . . .VEiL.5..................... ..... APPELLANTS THE REPUBLIC .............................t............................ 1 RESPONDENT 1: I (Appeal from the decision of the High Court of Tanzania at Mtshi) ji {Munuo. J.) dated the 30th daiy of August, 200 , •I , . If' I Criminal Appeal No. 54 & 55 of 1999 . ____ J______ I I JUDGMENT dF THE COURT. 14th & 18th September, 2012 MBAROUK, l.A.: In the District Court of Ro bo at Mkuu, the appellants were I :~ I . charged with the offence of rolbbery with violJnce contrary to sections 285 and 286 of the Penal Code, Cap. 16 of the Laws. ~ . . . They were convicted and sent~nced each to thirty (30) years I imprisonment with twelve (12) strokes of the cane. The appellants were also ordered to jointly pay compensation for the I loss of shs. 11,500/= being the value of the stolen properties. I 1 r .· Aggrieved with that decision, :I he appellants unsuccessfully appealed to the High Court of T~inzania (Munuo, J. as she then was) at Moshi in a consolidated Ciiminal Appeal N,. 54 and 55 of 1999. After their appeal was ¢ismissed, they preferred this ,' ; second appeal. The prosecution's case at the trial court which led to the conviction of the appellants waJ as follows:- 0~ 15/8/1993 at .- . ·i~ I . . I .. .. about 7:30 p.m., PWl was taking a drink of "mbege" a local liquor at "Cheka Nao" bar at Klni Mengeni villlge. Thereafter :i PWl decided to leave. On his wci~ home, about ttee paces from I :! '' : I "Cheka Nao" bar, PWl met the 2fd appellant who held him by his shirt at the chest. He identified the 2 appellant ith the light of nd i! st the moon which was clear. Sudd~nly, the 1 appellant joined the . J I i nd 2nd appellant in holding PWl. pvif1 said, 2 apJllant was at the i, I '. Ist front and 1st appellant at the back. Thereafter 1 appellant held . :! ' .. . . . PWl's throat and took shs. 3,590/= from PWl'si pocket with his watch. However, PWl managed! to catch the l i appellant while I' l; they wanted to escape. PW1 slilouted and peoJle from the bar 2 I, '' !i. responded. Instead of arresting the appellant, PW1 claimed he was instead arrested by "sungu sJngu" (military mln) and sent to Mengwe Police Station. PW1 waS then charged Jth the offence of assaulting the appellant but 1. ter discharged. However, after nd investigation was done, the ap,ellants were ar ested. The 2 st appellant escaped since 1993 and arrested in 1996. The 1 appellant had also jumped bail s;Jce 1993 but late arrested too. In their defence, the appell nts denied the aharge preferred - . . . . - ;·1 I . . - against them. They claimed that_ :PW1 framed up the case against them. The 1st appellant further claimed that th~ d;spute arose nd when he refused to give his bicycle to PW1. T~e 2 appellant, i' I simply claimed not to be at the scene of crime at "Cheka Nao" I Bar, and reiterated that this is a · ere cooked up case. ; In this appeal, the a, pellants appeared in person unrepresented, whereas Ms. Jajelin Rugaihuruzl, learned Senior State Attorney represented the ~espondent/Republic. 3 I·. I The appellants preferred a /joint memoranLm of appeal 1 1 I comprising of six grounds but we ~hink that they boil down to the a ., following grounds:- 1. Identification was not ~ater-tight. I Ii ;I I 2. Section 240 (3) of the ,;criminal ProcedU1re Act was not ,j· i . complied with after PF.3 (Exhibit Pl) wqs admitted. I' At the hearing, the appellarts had nothing to submit, but they asked us to adopt their grounds ,I,, of appeal. Ms. Rugaihuruza, support~d. the conviction. The le9rned ,1: I Senior State Attorney submitted that PW1, PW2 and PW3 N correctly identified the appellant~ at the scene of crime. She said that, the appellants were knoY'{/h to the prose ution witnesses 11 1I since childhood. Ms. Rugaihuruz~ further submitted that by the help of a clear moon light, !PWl sufficientlt identified .the appellants. As the appellants Jfre sufficiently identified at the 4 l scene of crime the learned Senior ftate Attorney urged us to find the appeal devoid of merit. In supbort of her argu~ent, she cited 1 i. I the case of Waziri Amani vs Republic [1980] TLR 250. :!' I Having closely examined the record of appea , we are of the 1 : ./ I considered opinion that the iss1e of identificatfn should not detain us as the 1st appellant himtelf did not dispilite that he met PW1 at the scene of crime. Theionly issue whic~II we think was ' ' ' < ' 'ii ' ' ' ' crucial is the failure of the two :courts below not /to consider the I , . . st 1 appellant's defence. As the r~cord shows, PW1 claimed that st :; ·j· II his money was taken by the 1 ippellant. But on/ the other hand the 1st appellant claimed that this was a framed of case after PW1 1 , . . ') I I st was denied access to the 1 ap)ellant's bicycle. ,he record also shows that as the 1st appellant brlieved to have a bonafide claim of right to his bicycle he was assiulted in the coub of defending :,1·I , I I his property and reported the matter to the pol,ice which led to ; the arrest and charging of PWL j I 5 I I I iI Although PW1 testified that he was discharged from the I /I :11 !I charge of assault, it was neverth11ess a serious m: isdirection on ,I ·•I 1 the part of the lower courts not to have considered the 1st 1 ., I' . appellant's defence at all. So he was deprived of having his . ,fl defence considered by the two courts below. In the I ;ii I I circumstances, we think it is unsafe to let the conviction of the 1st .,'.I I I, . I appellant stand. See, Hussein Idd and Another vs Republic :I [1985] TLR 166. :1i :I Unlike the 1st appellan~, the 2n appellant, claimed not d I . to be at the scene of crime wheh the incident oicurred. Taking into account that the incident ~appened at niJht and as the 'i I I ,II record shows that PW1 had alr~pdy taken local liquor "mbege", hence not in a sober mind and b~aring in mind th~t the only light available was moon light, we a~e of the opinio~ that mistaken identify could not have been sbfely eliminated./ We think, the conditions at the scene of crime! were not favoJable for the 2nd ;1!i - I appellant to be sufficiently identi,fled. For that reason, we do not I I agree with the learned serlior State Attfrney that the 6 : I .I I .I .. i identification especially of the 2n?. appellant was/· water-tight. t Hence, applying the principle laid dqwn in Waziri Amani (supra), we find that identification of the ? nd appellant at the scene of I I crime was not water-tight. I ,1:.: :11 I 'i For those two main reasons) we find that t~is appeal has I 1 merit. In the event, the appeal is ,hereby allowed. We quash the ,: "ii convictions and set aside the sentences imposed on the !1 1 . . ) I appellants. The appellants are tq; be released fo'rthwith unless ,j,1 they are lawfully held. :'! th DATED at ARUSHA this 16 .ray of September, 2012 . . I· i I E. A. 'IKILEO JUSTICE OF APPEAL I ·,I M. S. M;BAROUK JUSTICE OF APPEAL I' i' I s. A. MASSATI JUSTICE bF APPEAL 7 jl 11 I certify that this is a true copy pf the original. I f APPt 0 ,.-- 4< / / ~ I }\ (V o ,,,~. ,.'\, :M -·~i \~ r,ftl>. ·. · · ,: •. · l:•11 •1 •. '-4 '-- c;..;:ao;..;:u:;..;;R __ __T.:-.,.;::=+-,;:..::.:.-.;,,,,.=--=-= ~ / i 8