20121031 TZHC Dodoma

-s •.- -:.::- .:) IN THE HIGH COURT OF TANZANIA ATDODOMA APPELLATE JURISDICTION (DC) CRIMINAL APPEAL NO. 127 OF 2011 (Original Criminal Case No. 18 of 2010 of the District Court of Mpwapwa District at Mpwapwa) MATHIAS JULIUS NYASI ..........................APPELLANT VERSUS THE REPUBLIC...................................... RESPONDENT JUDGMENT 17/10/2012 & 31/10/2012 KWARIKO,). Before the district court of Mpwapwa the appellant herein stood charged with the offcnce of Armed Robbery C/S 287 A of the Penal Code Cap. 16 of the Laws, R.E. 2002 Cap. 16 of the Laws, RE. 2002 as amended by Act No. 4 of 2004. it was allcgxi by the prosecution that. the appellant had on the 4th day of March, 2009 at about 07.00hours at Msagali viflage within Mpwapwa District in Dodoma Region stolen cash Tshs. 10,000/=, one mobile phone make- Nokia valued at Tshs. 150,0001= and one shortgun - No. BSA— 10356 valued at Tshs6OQOFtfté Of one MSAFIRI S/C - SIJ BETH.. .......... MPILIMI and threatened to shoot him by muzzle gun in order to obtain and retain the said property. . When Lhe chaige was laid before the appeilant's door he denied it and the prosecution brought in court two witnesses to prove the same. The evidence from the 1 prosecution reveal that MSAFIRI SUBETH, PW2 had his cattle; kept at Msagali area though he was resident of Igoji area. That, on the material day he was at Msagali to tend his cattle when he was invaded by three bandits. One of them had bill-hook while two had a gun. The bandits ordered PW1 to stay still and demanded to be given Tshs. 7million. In that process he was beaten and when he said had no money the bandits took his gun, phone, knife and Tshs. 1 0,0001=. He was ordered to find the Tshs.7 million and report to the bandits so that they could take the same later. PW1 testified that he identified the appellant herein among the three and was the one who left his phone number to use once he got the money. Thereafter, PW1 reported the incident to the police and when he phoned the said number it was not reachable. The police continued with the investigation where the appellant was arrested after his friends had mentioned him. Upon interrogation by the police officers including No. E 4195 D/Cpl CHARLES, PW1 the appellant denied the allegations. His statement was written by PW1. The appellant and his accomplices also shown the police where they had kept the complainant's stolen gun No. BCA 10356 shortgun and two ammunitions. PW2 was summoned and identified the gun and thereby produced necessary documents to that effect. In his defence the appellant raised a defence of alibi to the effect that he had travelled to Arusha on 4/2/2009 and returned to Dodoma on. 18/3/2009. The police came to his Kibalgwa residence on the night of 21/3/2009 an searched his home without the presence of his ten cells leader. They found noth.ihg. He was taken away and interrogated to tell them about one Maro, his friend of Kimamba, Kilosa. However, the police wanted him to admit that Maro lived in Dumila and when he denied that he was subjected to torture until they broke his leg. He had to admit that Maro lived in Dumila. In the same pursuit the police killed his (appellant's) in-law at Kimamba area and collected various properties from him. He was thus brought to Mpwapwa and charged of Armed Robbery which he denied. ....................... 2 4 1 At the end of the trial the court found that the charge had been sufficiently proved against the appellant. It was found that the appellant's identification at the scene was not an issue since the incident took place during daytime. And the gun, exhibit P1 and mobile phone had been proved to be PW2's properties. He was found guilty, convicted and sentenced to thirty (30) years imprisonment.. The appellant was aggrieved by the trial court's decision hence filed this appeal where he raised about six (6) grounds of appeal. However, the appellant complains essentially that the prosecution case was not proved beyond reasonable doubt against him. When this appeal was heard the appellant reiterated his grounds of appeal. On the other hand the respondent Republic was represented by Ms. Nsana learned State Attorney who supported this appeal. Ms. Nsana gave her reasons for the said stance which will be referred shortly. This court has perused the original records, the grounds of appeal and the submissions of the parties in court and it is of the considered opinion that this appeal is very much meritorious. Firstly, as rightly, complained by the appellant the prosecution did not bring evidence to prove the allegations that the appellant was mentioned by his friends that he committed this offence. The alleged friends were not brought in court to substantiate these a1egti.ons. If the alleged friends were appellant's accomplices why they had not been charged jointly with the appellant? No any explanation had been fronted by the prosecutIon in that respect. Thus, this shows thatno any one had ever mentioned the appellant as alleged. Asö thëHdëntifitiOn of the appellant at the scene- the same had not- proved. PW2 who said did identify the appellant among the three thugs did not explain 3 It 46 the criterion of his identification. PW2 did not say if he knew the appellant before and what was his appearance at that time. He did not say why he identified the appellant but not the two others. He did not explain the distance that was, between him and the thugs and especially the appellant whom he said had identified. He did not explain what the appellant had been holding/ carrying among a gun, machete or billhook which he said the thugs had. Infact the alleged identification by PW2 did not met the criterion set out in the celebrated case of WAZIRI AMANI VR (1980) T.L..R 250. The trial court thus erred in law and fact to hold that the appellant was sufficiently identified at the scene simply because it was daytime. Further, as regards the alleged recovery of the complainant's gun and the appellant's involvement in the same, three crucial issues arise. Firstly, there was no any independent witness who had been brought to testify to support the evidence that the appellant led the police to recover the gun in the farms. PW1 said in evidence that there were some villagers and local area leaders during that exercfse. As to why no any of these people was called to independently support this piece of evidence was not explained. Failure to parade these people to testify adversely affected the prosecution case (See AZIZI ABDALLAH VR [1991] T.LR. 71). Secondly, there had not been any warrant of search before the said gun was recovered or that any certificate of seizure to that effect after the gun was recovered. As rightly submitted by Ms. Nsana the police had ample tune to prepare these certificates more so because they said the appellant had confessed, thus they were in no any hurry. This is in accordance with the law under section 3 (1) (b) and 41 of the Criminal Procedure Act Cap. 20 RE. 2002. Failure to produce any Of the said certificates the court believes that there was no such exercise and if it was there it was null. Thirdly, the alleged idènifiãtiör of This is so because while the charge allege that shortgun No. BSA 10356 had been 4 stolen, PW1 said it was shortgun No. BCA 10356 which was found on the appellant's direction, PW2 said his gun was No. 10356 and the court marked that the gun which was received as exhibit P1 was No. YB 10356. This discrepancy could not prove the gun's identify and the complainant had not proved the identify of his alleged stolen gun since he did not even produced any documentary evidence to that effect. Further the alleged stolen phone exhibit P2 had not been proved that it was found in possession of the appellant. This is so because no any witness testified that the appellant was found in possession of stolen phone. Thus, exhibits P1 and P2 could not have been linked to the appellant and earn him conviction as the trial court held. In the fine therefore, I find that the prosecution case was not proved beyond reasonable doubt against the appellant. Hence the appeal is allowed, conviction quashed and sentence set aside. It is ordered that the appellant be released from custody unless his continued incarceration is in relation to other lawful cause. It is so ordered accordingly. - (M.A?' ARIKO) JUDGE 31/10/2012 DELIVERED AT DODOMA. 31/10/2012 5 19 Appellant:- Present For Respondent: Ms. Magesa, State Attorney C/C: Ms. Komba / c;/' /f (11\A. KWARIKO) I \• :. I! JUDGE - 31/10/2012 1.1