20120827 TZHC Mbeya1

I. IN THE HIGH COURT OF TANZANIA (iT) AT MBEYA DC CRIMINAL APPEAL NUMBER 55 & 56 (CONSOLDATED) OF 2011 (Originating from Criminal Case Number 129 of 2009 of the District Court of Mba rali at Rujewa.) JOEL KADUMA @ MADIZELI ------------- 1st APPELLANT HALISU RAMADHAN @ GINGA ----------- 2nd APPELLANT THE REPUBLIC -------------- --- --- ---------- RESPONDENT JUDGMENT 02/07 & 27/0/2012 S. S. MWANGESI J.: The appellants herein with two others that is, Steven Jimmy @ Nyagawa Salenga and Enmnuel Ernest @ Nyigu Mgimba were charged with the offence of armed robbery contrary to section 287 A of the Penal Code Cap 16 Volume lof the Laws Revised Edition of 2002 as amended by Act No. 04 of 2004. The particulars of the offence were to the effect that, on the 16t1 day of June 2009 at about 0900 hours at Nyamakuyu village within the District of Mbarali in Mbeya Region, the accused did 1 / / - - I jointly and together, steal cash TZs. 2,500,000/=, one bicycle make sport valued at TZs. 100,000/=, one cellular phone make Nokia valued at TZs. 150,0001= all total valued at TZs. 2,750,0001=, the property of one Charles Kibodya and immediately before and/or immediately after such stealing, did cut him using a knife on his head and neck in order to obtain and or to retain the stolen properties and money. After the charge had been denied by all accused, the prosecution summoned six witnesses to establish the commission of the offence by the accused. At the closure of the prosecution case, the learned trial Resident Magistrate did rule out that, the evidence from the prosecution had failed to establish a prima facie case against the third and the fourth accused. The dual were therefore discharged and set at liberty. On their part, the first and the second accused who happen to be the current appellants were required to enter their defenses. And the evaluation of the entire evidence by the learned trial Resident Magistrate after receiving the defense evidence was to the effect that, the offence had been sufficiently established against the first and second accused and as result, did convict both of them to the charged offence and sentenced each to the mandatory sentence of thirty (30) years imprisonment and additionally, each accused was ordered to be canned five strokes of the cane on the buttocks. The conviction and the sentence imposed by the learned trial Resident Magistrate did aggrieve both accused who have decided to challenge in this Court. In their grounds of appeal which are almost similar, both appellants have challenged the trial Magistrate for basing his conviction on the evidence of PW5 which they argue was not corroborated by any other evidence. The appellants have further contended that, it was erroneous on the part of the trial Magistrate to consider the evidence of other prosecution witnesses because such evidence was just hearsay. Furthermore, the appellants have complained 2 - on the act of the trial Court to give weight to the caution statement ). alleged to have been obtained from the first appellant, while its admission as exhibit in Court during the trial was resisted by the alleged maker that is, the first appellant. Lastly, it has been the contention of both appellants that, their defense evidence was not considered by the trial Magistrate. The grounds of appeal by the appellants have been disputed by Mr. Namkambe Learned State Attorney who appeared on behalf of the respondent during the hearing of the appeal. According to the Learned State Attorney, the evidence that was tendered by the prosecution witnesses did satisfactorily establish that, both appellants did commit the offence of armed robbery to the victim of the incident at issue. It has been his opinion that, the identification of the appellants by PW5 in the instant matter had no any problems at all because, the commission of the offence was done during day time and that is why he managed to name both of them by their names. On the question of the caution statement which is alleged to have been disputed by the first appellant during its being tendered as exhibit, it has been the view of the Learned State Attorney that, although indeed there was such objection from the first appellant, the same was overruled by the learned trial Resident Magistrate after finding that, the reasons advanced were not sound. On those bases, the Learned State Attorney has humbly beseeched this Court to hold that, the appeal by both appellants is without any founded grounds and therefore, it be dismissed in its entirety by upholding both the conviction and the sentences imposed by the trial Court to the appellants. The basic issue which this Court is supposed to determine in as far as this appeal is concerned, is as to whether the appellants did either jointly and/or severally rob the victim of the incident at issue using arms. 3 To consider the issue, each of the appellants will be considered ) separately. To start with the caution statement, which was said to have been given by the first appellant at the Police Station admitting to have committed the offence at issue, which the learned trial Resident Magistrate did use in founding the first appellant culpable to the charged offence, indeed according to the proceedings in the trial Court's file, the first appellant disputed to its being admitted as exhibit. Procedurally, after the first appellant had retracted the alleged caution statement, the trial Resident Magistrate was duty bound to make an inquiry and give a ruling as to whether it was admissible or not. However, in the instant matter, the trial Magistrate did just hold that the statement was admissible without any further ado. It is my view that, such procedure was improper and the consequence thereof, the content of the caution statement has to be expunged from the proceedings. Having expunged the caution statement from the proceedings as afore-held, I thereafter proceed to consider the other evidence that was tendered during the trial of the case. From the testimony of PW5 (Charles Kibodya) who happened to be the victim of the incident, the one who did actually do the robbing against him, was the first appellant. It was the disposition of the witness that, the incident occurred when he had been riding his bicycle from Nyamakuyu village towards Makadete village in the company of the first appellant who at the material time was a passenger on his bicycle. He stated further that, it had been their understanding that the first appellant was going to show him the place where he could get bags of paddy to purchase which had been his business. And while they were in the middle of the bush, the first appellant did turn against him, whereby he did assault him using a knife and robbed him the money which he intended to use in buying the paddy plus the other valuable items which were in his possession. 4 The subsequent question from such contention of the witness is as ) to whether his testimony can be relied and acted upon. Corroboration to the contention by PW5 that he got assaulted did come from the testimony of Uduayo Gerema who testified as PW3. This witness, who had been grazing his head of cattle in the bush on the fateful date, was the first person to whom PW5 reported what had befallen him. The witness claimed to have seen the victim (PW5) oozing blood from his neck and head where he had been knifed and could hardly utter any word. The victim did name to him the first appellant that is Joel Kaduma, with some difficulty as the one who had assaulted him. At that instance, PW3 did rush to the village Pub where he did narrate the incident to other people. Atirio Masunzu who gave his evidence as PW2, was among the people to whom a report regarding to what had happened to the victim was made by PW3 (Uduayo Gerema) at the village Pub. Having heard the report, they did move to the place where they were shown the victim of the incident that is PW5. According to this witness, the condition of the victim was very serious and could hardly utter any word. As a result, PW5 did scribble on the ground to explain what had befallen him that is, "aliyenivamia ni Joel Kaduma". Thereafter, they did take the victim to the village office where arrangements to take him to the hospital were made. On his part, the first appellant though he did not formally raise a defense of alibi, his evidence did reveal so, when he told the Court that on the fateful date that is the 16th June 2009, he did travel from Nyamakuyu which was his home village towards Igomaha village via Mafinga. Having spent his night at his mother at Igomaha, on the following day that is, the 17th June 2009, he was arrested while in a pickup, continuing with his trip, to a destination which unfortunately, he could not disclose. And when cross-examined by the Court if he knew anything about the second appellant, he claimed to have known him for ) the first time on the 18 0i June 2009, that is, when they were joined to charge at hand. There were however, the testimonies from the PW2, PW3, PW5, DW3 (Hussein Ramadhan) as well as the second appellant to the effect that, the first appellant was a well known person at the village of Nyamakuyu commonly known as Madizeli. Under the circumstances, his contention that, he did not know the second appellant who also was from the same village, can hardly be convincing to make one believe his story. In so doing, it should not be construed as shifting the burden of proof to the appellant, but rather is just to intimate on how his statement could hardly be relied upon, and thereby making his defense of alibi which he tried to raise, to be of little assistance. To the contrary, on the other hand, the naming of the first appellant to PW3 by PW5 under difficult circumstances, as well as the scribbling of the name of the first appellant on the ground after failing to talk as witnessed by PW (Atirio Masunzu) and DW3 (Hussein Ramadhan), even if the victim (PW5), had died, it is my feeling that, the statement by the victim could have amounted to a dying declaration, and therefore admissible as evidence under the provisions of section 34 B (1) of the Law of Evidence Act. The fact that, the testimonies of PW2, PW3, PW5, DW3 and the second appellant have sufficiently established that, the first appellant was well known to PW5, and further that, the incident at hand happened during day time when everything could clearly be seen, I have no any hesitation in believing the veracity of the victim that, what he told the Court under oath which did tally with what he had narrated to the named witnesses above under difficulty condition, was nothing but truth. To that end, I holding that, the first appellant was the person who assaulted PW5 on the fateful date and robbed him his money. With regard to the second appellant, what is obvious from the available evidence is the fact that he did not physically participate to assault the victim. According to the testimony of the victim (PW5), he was the one who organized with the first appellant to carry out what transpired to him on the fateful date. The fact that the prosecution believed such belief by the victim to have been the case, then, there ought to have been another charge of conspiracy by the two that is, conspiring to commit what happened to the victim on the fateful date. The absence of such charge therefore, was an anomaly on the part of the prosecution and did to some extent, complicate the task of establishing the current offence against the second appellant. The foregoing anomaly notwithstanding, the subsequent question is as to whether there was ample evidence to implicate the second appellant to the charged offence of armed robbery. It was the deposition of PW1 E. 137 Corporal Joseph that, the second appellant was joined to the charge at hand after being named by the first appellant in the caution statement that they had planned together to execute the mission of robbing the victim his money which he was to use in buying paddy. Having held above that, the content of the caution statement has to be expunged from the proceedings, it ipso facto means that, the second appellant cannot be joined to the charges through the said document. The other question that remains is as to whether there is any other evidence to implicate him to the charged offence. The evidence of the second appellant in his defense and that of his witness one Hussein Ramadhan was to some extent contradictory. While the second appellant did tell the Court that, a day before the incident at issue that is, on the 1 5th June 2009 his mother had passed away and that, he had to spent the night of the said date at her place and therefore, he was not at his home, the testimony of his witness was to the effect that, there burial ceremonies that were performed at the home of the second VA 4 appellant on the 16t1 June 2009 which was a different date and venue ) from those contained in the testimony of the second appellant. Such contradiction raises some doubts as to the authenticity of the contentions by the two. Nevertheless, such anomaly cannot in any way, benefit the prosecution which was legally duty bound to establish the guilty of the appellant beyond reasonable doubt, a task which according to the available evidence, has not been successfully performed. Ultimately therefore, it is the finding of this Court that, the trial - Court was justified to hold the first appellant culpable to the charged offence of armed robbery, while it was not justified to do the same for the second appellant. To that end, the appeal by the second appellant has to succeed, while that of the first appellant has to fail. The conviction by the second appellant is therefore quashed and the sentence of imprisonment for thirty (30) years which had been imposed by the trial Court is set aside. He is to be set at liberty forthwith unless lawfully held for any other justifiable cause. On the other hand, the first appellant on his part, the conviction as well as the sentence of the trial Court are hereby upheld by this Court. Order accordingly. JUDGE 27-08-2012 8