joseph masingoti vs emmy sanga 2012 tzhc 85 25 march 2012

IN THE HIGH COURT OF TANZANIA AT DODOMA (APPELLATE JURISDICTION) (PC) CRIMINAL APPEAL NO. 10 OF 2012 (Arising from Criminal Appeal No. 28 o f2004 o f Mpwapwa District Court at Mpwapwa, Original'Criminal Case No. 24 o f2004 ofZoissa Primary Court) JOSEPH MASING'OTI.................... APPELLANT VERSUS EMMY SANGA........................... RESPONDENT * JUDGMENT 11/3/2013 & 25/3/2012 KWARIKO,}. The appellant herein was arraigned before the'Primary Court of Zoissa with an offence of Armed Robbery c/s 285 & 286 of the Penal Code Cap. 16 of the Laws. It was alleged that the appellant and others who were at large had on the 15th day of April, 2004 at about 10.00am at Mageseni village within Kongwa District in Dodoma Region stole from EMMY SANGA a solar power and cash Tshs. 400,000/= all property valued at Tshs.700,000/= and used axe, knives and club in order to obtain and retain the said property. The appellant denied the charge and hence a trial was conducted in that respect. The presecution evidence through EMMY SANGA, PW1, MIRIAM LUSrrO, PW2 and MWAIJA ANDREA, PW3 was to the effect that, the appellant and his accomplices IDD ABDALLAH and SEIF NGIONJE invaded the complainant's home on the material time armed with axe, club and knife and managed to steal solar power gadget and cash Shs. 400,000/=. These witnesses raised alarms but the thugs ran away after the robbery after they saw neighbours coming. They reported the matter to the village Chairman and to the Police where only the appellant was arrested. In his defence the appellant totally denied the allegations and said the complainant had old grudges with him for being deserted by her boyfriend who was appellants close friend and PW1 imputed on the appellant to be the cause of the ditching. * * ■ i The trial court convicted the appellant and sentenced him to thirty (30) years imprisonment with an order of compensation to the complainant •f of a sum of Shs. 700,000/= of the stolen property. i The appellant was aggrieved by this decision hence unsuccessfully appealed before the district court. Still undeterred by this failure, the appellant has brought this appeal protesting his innocence. The appeal was heard in the absence of the respondent since it has been difficult to secure her attendance as the summonses were not returned on various occasions from October, 2012. When the appellant was heard he adopted his grounds of appeal and stressed that the prosecution case was not proved since the evidence to that effect was insufficient. He charged that the prosecution witnesses' evidence ought to have been corroborated by the alleged area chairman or the people who were said to have answered the alarms. Either, the appellant complained that no any police officer was called to testify to support the complainant's evidence. The issue which this court needs to decide is whether this appeal has 'j merits. At this second appeal I will revisit and re-evaluate the evidence . ! since important issues were not considered by the two courts below. At first sight the prosecution case seems very attractive and strong against the appellant!. However, upon close scrutiny the same is strongly doubtful. This is so for two important reasons. Firstly, the evidence by the prosecution witnesses contradict from each other. It is in record that while PW1, the complainant EMMY D/O SANGA testified that the thugs who invaded her were armed with a club [rungu] which was with one ISSACK MAHINYILA, PW2 - MIRIAM D/O LUSITO and PW3 - MWADA D/O ANDREA testified that they were eye witnesses and saw the thugs armed with club, axe and knives. This contradiction cannot easily be ignored since it goes to the root of the case and brings about an issue whether the incident really happened the way it was explained and whether the appellant was really the perpetrator or among the thugs who allegedly invaded the complainant. The law says that where there is contradictions on the prosecution case which go to the root of the case the same create doubt in the prosecution case and thus should be resolved in favour of the accused. The said obvious doubt is therefore resolved in favour of the appellant herein [See MOHAMED SAID MATULA V R [1995] T„ L. R 3]. Secondly, this incident is seemingly a family affair. As rightly complained by the appellant the prosecution witnesses' story ought to have been corroborated by independent witnesses especially on what the witnesses said to the third parties soon after the incident. If PW1 said that she reported the incident to the chairman, this court does not see * vi any reason why this chairman was not called to verify/support/confirm this incident. Also, PW2 and PW3 said people/neighbours responded to their alarms but failed to do anything for fear of the weapons the thugs were carrying. This evidence shows that the neighbours came and found the thugs still at the scene but did not offer any help for fear of the weapons the thugs were carrying. Now, why these neighbours were not paraded to testify to support the complainant's story is a germane question which was ■ ' M • t < not answered by the prosecution. 4 Further, the prosecution did not call a police investigator or any police officer to testify and explain what the complainant told them in relation to the incident and why and how the appellant was booked. The police ought to have testified to reveal how the appellant was arrested and when since the complainant said he could not be found soon after the incident. Therefore, failure by the prosecution to bring such important, within reach witnesses to support the complainant's evidence in my considered opinion have adversely impacted on the prosecution case. That is how the Court of Appeal of Tanzania held in the case of AZIZ ABDALLAH V R [1991] T. L. R 71 when it was said inter alia that; "The general and well known rule is that the 'i prosecutor is under a prima facie duty to call those witnesses who, from their connection , v^ith the transaction in question are able to testify on material facts; if such witnesses are within reach but are not called without sufficient reason being shown, the court may draw an inference adverse to, the prosecution". For the foregoing thus, this court finds that the prosecution case against the appellant was not so straight as the first appellate district court found. The same was not proved beyond reasonable doubt as required in law. Thus/ the appellant's appeal is allowed, conviction quashed and sentence and order of compensation set aside. It is hereby ordered that the appellant be set at liberty unless otherwise lawfully held. Order accordingly. JUDGE 25/3/2013 DELIVERED AT DODOMA 25/ 3/2013 Appellant r. Present Respondent : Absent c/c: Ms. Komba ] 755/3/2013