20120229 TZCA Arusha2

' ~ ) . I IN THE COURT OF APP,EAL OF TANZANIA j • ATARUSHA (CORAM: MUNUO, J.A., KILEO, J.A., And MANDIA, J.A.} .. '. CRIMINAL APPEAUIN'o. 30s oF 2009 AMOS PAULO AND ANOTHER................................................ APPELLANT VERSUS I THE D.P.P ............................................•............................. RESPONDENT ' ' i (Appeal from the Jud~ffl~;~~·~,tJ~e High Courtof T~nzania 7• at Aiiusl)•> ;- ' · ; (K.M.M.SAMBO, J.} dated the 21st day of August, 2009 in Criminal Appeal No. 121 of 2007 JUDGMENT OF THE COURT 28 th February & 02nd March, 2012 KILEO, J.A.: I The appellants, Amos s/d1F'aulo ,and Odian s/o Elias were, along ,j; ', ;t", I 1 ! with two others, charged with•f ~r6i¥j¢e of Armed Robbery contrary to . i ' section 285 and 286 of the Penal Cod~·Cap 16 as amended by Act No.10 of 1989 in the District Court of Hanang at Katesh. The appellants appeared as the first and second accused persons respectively, at the trial. The trial magistrate found, after the prosecution case had been closed, that there was no c;:c;i:se to,:· answer for the t~ird and fourth . ; ' t ~~ ~ tf ~ ~- :,1 : ' '. I accused persons. The appellants were convicted and sentenced to serve . 30 years in prison. Their ap~~~~lffto:,"t?e: High Court was/ unsuccessful t,f...,. (• I·,~. •. ' •.:,1•' ' ' t ~ hence this second appeal. . 1· ... · · · ,, : I I th Facts as briefly adduced at the tMial show that on/ 8 February, I 2002 at about 2.30 a.m. at Mara village, within Hanang1 District) four persons armed with panga, machete and clubs broke int~ the dwelling • ~ \ I house of the complainant on:~lMaryfd/o Marco (PWl) Jhere she was sleeping with her children. They threatened the complaina~t with Panga, hit her on her right knee using,~ ~lub and managed to st~al a variety of jt-1! ./Po{;~. ,.1r, "n,, . ~- I- items including cash money, r~:810 ¢ast~ttes ,, and clothes. The appellants' I conviction was based on identification evidence. 1 I I . I The appellants' petition of appeal contains five grounds which can I conveniently be paraphrased into two main grounds: I That the cou~~ below erred in baJing , . , tij, ·:,ffii I conviction on evidence of identification I which was not sufficient in the pertaining I circumstances. . ti~·~:\~~!'• :.\" it,•< >:?5i> , 1 I That as a whole, the prosecution did not 1 . I prove its case beyond reasonable doubt.I I I 2 ' , .. The appellants appeared before us unrepresented. Ttle respondent Republic was represented QY 'Ms: tVeritas Mlay, learned Principal ;''·<~. Attorney. Submitting before us in .~~ditionJo their grounds of appeal the first ''! 'l;,,, .·-,,, /·;~_>" appellant argued that his behavior. the· morning after th~ night of the crime negated all possibilities of his involvement in the crif11e. Moreover, the victims did not mention them as their assailants at the earliest I possible opportunity he argued. The appellant also pointed out that his ! defence witnesses cemented his def~nce of non- involvement in the 1 ' iii · ~·'· ~' ' crime. The second appellant 6h the !'bther hand argued that he was not sufficiently identified but he was merely arraigned because there had been some misunderstandings with the complainant over remuneration .:i '.' ,·· ·{t~ /At' '.-;'~ -~ /:·. , r_ I , :;~~- , t\: of work they had done for her earli~r· on.·. . ' . Ms Veritas supported the conviction on the ground that PWl and PW2 properly identified the appellants as they were known to them , I before and that there was a lantern lamp burning at the scene of crime. i t ! }tf:. .. 1... This appeal centers mainly on whether the prosecution discharged its burden of proving its case beyond reasonable doubt., The appellants have complained that there-.~!W~~- n~t. even proof thqt robbery was ' i ~ . .~~t I, . ·~ ~ i ••.. ! h •.J~. committed at all. They argue that a'pofice officer should have visited the . I scene to ascertain the break in and the stone (fatuma) used to break I the door should have been tendered in evidence. The circumstances of this case are similar to Vita Quambaday vs. Republic- Cr. Appeal No 48 of 2008 (unreported). In that case the • i;i~. :1;.,. . l complainant's room was broken into at 2.00 am by bandits whom the I complainant, her son and sister in law (PWl, PW2 and PW3 respectively) ' ! ,, ,. ; . i alleged to have recognized thr5ugh light from a lantern lamp which had . , ; ''.·l. . ' a bright light. The complainant claimed that she especially recognized I the appellant because he was known to her before. She even mentioned I his nickname and described his attire at the time of commission of the 1 crime. In discussing the matter before it the Court noted that there was no evidence from the police to. substantiate the evidence of PWl, PW2 I -~i •,J'\◄' and PWJ that the offence was"comm1tted, reported to the police, and to whom the name of the appellant was mentioned as being the one who committed the offence. The f~~}hat, there was no evidence from the ,~' ·}r,4. ;;At ~ .,}~. .-rJ,·~·,, police to show how the offenc~ w~i :t6mmitted and the fact that there 1 was no evidence to show to whom t~e· appellant was named as a culprit were found to be deficiencies which made identificatiofil of the culprit questionable. 4\,.'V. ,•, Ii. \,•,1• I We are mindful of sectio~ 11431 qf the Evidence Act which provides . .~{. . . I that no particular number of ~itnesses shall in any case b~ required for I the proof of any fact. However in the circumstances of thEt present case one would have expected tr,~~\~the,..;~rosecution would have at least :,,i,-,,,. :, ti ! tendered evidence to show when the witnesses reported !the matter to '• I .1 I the police and how the appellants were arrested. We have made this I observation bearing in mind the fact that there is nothing on record to I show that the victims made an immediate mention of th~ appellants as the ones who robbed them. This means that the witnesses made dock '' , .t ,I ', :;: identification. Moreover, there•~~as no evidence that the appellants were ' .. I I ever searched to find out if they possessed the stolen property which i would have easily linked them to, the crime. This is a criminal case; -~(' ,t··_·'• .~. ,~ t ' ~: .I I ~~~. ·~ I normally where a complainant" clain1s1~hat some properties were stolen t, , ., I from her the first thing to be expected is for the s:uspects to be I i searched. ! In view of the above considerations we are settlea in our minds i I that the identification of the ~ppellarj:s at the scene of crime was not 1 ; ' .':\-J' 1·;:'ll ; ' '·!~· l ~·. , ', I sufficient to sustain a conviction. I I .! . ·. . ,. I We have also noted, an~(~.~ ~J~y conceded that ,much, that the ~~ ,fi ~(1·1·~ '1 · .. _;;:,t3 , ' ·: 1t I,~:~~~-; ·~ I trial magistrate did not address himself to the defence that was raised . I 5'. ,. by the appellants. The first appellant:' gave evidence which suggested • I that he could not have been at the scene of crime at the time the crime ' was committed. He called a witness· (DW3) who testified to have been I with him the whole night on the day of the incident. Another witness, a fellow teacher at the school wijere 'the complainant taught (DW4) gave _'·.i,,; . ll ~: . ' l ' ""'' I evidence that the first appellant accompanied them as th~y went to the complainant's house after they had heard what befell her. When they got there, PW2 who was pre~~·nt n¢ver mentioned th~ appellant as ,t •. - ,~.' f ~ . ,. t\1.. I . t·· , i. having been one of the robbers. • Even later when he met the j complainant she never mentioned to him that the first 'appellant who was the complainant's neighbor and one time pupil wa~ among those who robbed her. The second appellant claimed that he was joined in the I case due to grudges that existed between her and the complainant over :, 4' : i f \ I I . //; _.:. ·,; some payment for work done: In Alfeo· Valentino vs. The Republic - Cr. Appeal No.92 of 2006 (unreported) the Court had' this to say in regard to a trial court's failure t9 f_~lly consider the defenc,e of alibf. I •g~ t-t( ', I •.. •;."•: • ' &: t-;,i',~, /, !4s this Court iucci/2ct:l9' stated in Charles Samson v. R, Criminal Appeal No. 29 of 1990, ' as in many other cases, failure by a trial court to I fully consider the defence of alibi, and we may ,. add without fear of being contradicted, the 1 defence case as ~·~J~'h?,~: ,,:is a serious error.' We ' ,6 I r ' ./' ' ;.;,•~ : ' : ' ~, ' ,,t. i• I i I are of the settled ½?ind, ?•therefore, that the tr~al I court fatally erred in not considering the entire • I defence evidence qefore finding the appella½t ~ i1~·, ,k . I guilty. Unfortunateiy; ievJh . the first appel/Jte I court did not address itself on this omission. ' I I I I I In Hussein Idd and Another vs. Republic (19860 TLR 166 the ;_ I I first appellant together with another person were convi~ed of murder. The trial court dealt with the,,:prosec_!,ltion evidence impliJating the first , , ;iii ii· ·: , I ''' ': 'i ' '· I appellant and reached the conclusion without considerin:g the defence I evidence. The Court held: i , .• ·. !1 I ::' : ' ' ,,' I I 'It was a serious l/litEIJ1:ect{o(7 on the part oflthe i ~ ; ?.\l · , I r:_. '. I trial judge to deal with the prosecution evide,nce I on its own and arrive at· the conclusion thJt it I I was true and credible without considering I the I I :defence evidence' / I • .; , , I . .. +l ',_,d '· $ .,~'ii ' I In the case at hand if t~e cburts below had properly addressed I themselves to the whole case they would probably hav~ found that the I I defence raised by the appella~~~~~-~s:~!,~hly probable. T~e first appellant , 1~ i1: . , :<ll'- . I' ' ~ L ;•:' I in his address before us said that,1t '.Would be most unlikely that he, a ,: I ' I I long time neighbor of the complainanewould have beed so foolish as to I 7 I I I. I go to the ·complainant's house without :'even masking h:is face. His • I I argument is sound. In Salum Petro Ngalawa vs. The Republic - ' _I I I I I Criminal appeal No. 85 of 2004 (unreworted) this Court made the , I I following observation after a wjtne$S had ,claimed to have identified the ~ ; . r,,, ' 1' . '.!·j ' ·.~ . culprits through a vehicle's hea'tt'lights:·. 'We start with the identification of the appellant ' i :1 I by PWs 2 and 3. {~f~lS' t1,:ir evidence that t~ey , ~: ,..,rf.1 ,;;·,'",;,.:•• . .- (rf: 1•·,:-:-:·:,.~ I . were able to identify the appellant .. , because of the I . . : I head lamps of the vehicle.· But we ask ourselves , ' , I how the bandits could have been so foolish al to I I come out in front of such ~ glare of the head ' I I : I lights of the vehicle. Accor1ing to PWs 2 a~d 3 those people had :t~{<e; ' 1$ ~qaver and only eme)ged • Yi\. ! I •, I after the vehicle stopped abd tried to reverse. It I I , I is highly improbable that they would have done ,, , . 1 r· i f so. , ·/t~."A}'. irl · i ~ ; ~-:.¥.~~: I ' I The first appellant's contention. ,';that . it would beI most unlikely, .i ' I I being very well known to the complainant, to have gone to rob her I I ·, I without concealing his identity make~ ~ense. I I In the light of the abov~ consJderations we fincJ the appeal by .1 :/.''c. •l '•ir· .. •.:i.,~ . I\"' ., ',•i I ' I I Amos Paulo and Odian Elias t0 havEtbeen filed with sufficient cause for 8 : ' 'J i,)~i ' ,, '.,,f.., ;, t$'.:· < /~~:, . ' complaint. We accordingly allow it. COnvictirns entered against them are I quashed and sentences imposei;I are set aside. The appella~ts are to be , ,, ·. I /it :-t1.·: :.:.-.' I • ,(;'If :' ,I} ' •,:' ,. released from custody forthw1tn' onl.'rs~;h~la for some other lawful cause. {; . ' DATED at ARUSHA this 29th Day o February, 2012. ', JuS"iiiE ~~~.f.,EAL E. A. KILE 1 JUSTICE OF APPEAL I certify that this is a true copy of the original. .✓- ' 0 U' ":'"Y~~Kv)IIZU \),I\ DEPUTY REGISTRAR -S,\ \ ."' ·,"' •,,:.rc,,j:, ;;~, COURT Of APPEAL -~' 9, ·t '. !~' ·:-r'