20120103 TZHC Dodoma

: '• • ' . '.·•.· .- ...: .•:· : . .. ...... ',.. IN THE HIGH COURT OF TANZANIA AT DODOMA .,.. : 0 PRM. CRIMINAL APPEAL NO. 28 / 2011:. ORIGINAL CRIMINAL CASE NO. 61 / 2010 OF THE DISTRICT COUT OF KONDOA AT KONDOA 1. GASPAR MARUSU@ MSANGA................ ~PPELLANTS 2. ADAMU RASHID! @ KIDEE ..................... J VERSUS THE REPUBLIC ......................................... RESPONDENT JUDGMENT HON. R. I. RUTATINISIBWA, PRM (EXT.J): The instant appeal arose from Criminal Case No. 61 of 2010 of Kondoa District Court. The appellant one GASPARI MARUSU @ MSANGA and ADAMU RASHID! @ .KIDEE were arraigned for Armed Robbery C/S. 287A of the penal code cap. 16 vol.1 of the Laws, Revised by Act No. 4 of 2004. The prosecutor alleged that on 10th May, 2010 at or about 09.00hrs, at Kelema Bala village in Kondoa District, the said accused persons did steal 1 bicycle, valued at Tsh. 70,000/= various clothes valued at Tshs. 40,000/= and cash money Tshs. 40,000/= all total value of Tshs. 150,000/= the property of IBRAHIMU MALILE and immediately before or after the time of such stealing did use iron bar to threaten in order to obtain the said property. The matter went on full trial. . At the end the two accuseds were found guilty and sent to jail to serve a term of 30 years. t The appellant was not satisfied. He lodged the memorandum of appeal and in the course added more grounds. In essence. the grqu·nds of appeal can be conveniently summed up to mean; that the appellant was not clearly identified and that the prosecution side did not pr,ove the tharge beyond doubt. The appellant prayed for release. The 2nd accused was not seen joining the appellant to challenge the decision. The Republic was represented by Ms. Shio learned State Attorney. She was not ready to support the conviction. The grounds for not supporting the decisi9n of the trial court was explained as follows. That the PF.3 (exh.P2) tendered by PWl did not comply with the provisions of section 240(3) of cap. 20. That the accused were not explained of their right to call the medical officer who examined the victim. I perused the proceedings. It is not shown that the accuseds were explained of their rights interms of section 240(3) of Cap.20. It is a mandatory requirement. The omission or failure to do so is fatal because the accused is denied of the right to cross examine the: rt1aker of the document. (see Shabani Daudi V. R. CR. APP~ No. 28 of 2000 TCA). The learned state attorney argued that the exhibit P2 which contained clothes, pairs of shoes was not properly admitted. That PWl was shown the properties be fore he could give the ·descriptions on each property. I made a carefully survey on the proceedings.- I agree. withthe state ~ttorney that the complaint (PWl) did not describe any mask on the property before seeing them or even after being shown he did not point a I " special mark which could tend to prove that the property belonged to no body else but him alone. That means the tendered property were not clearly identified. Ms. Shio, said that the complainant (PW1) did not identify the accuseds. That he required to describe the suspects before being caught. That the proceedings shows that PWl did not tell to the village officials the one who invaded him. That only during cross examination he said so. PW.1 said that from a distance of about one acre .. ahead of him he saw two people. That those people disappeared in the bush. When he arrived at that place he was smashed from behind and chased. That one thug took his bicycle. PWl did not know those th(igs before/ I am of the view that it was ne~essary iQ. the circlJmstances of this case for PW1 to give adequate evidence of identification. He should have gone further to specify what features, or unusual marks, or what was their built, or the atire they were wearing:, which could erfaole··him to recognize the appellant at the scene of crime. (see; Yusufu luma·and Mohamed Ally VS. R. (DC) CR. APP. No. 4 of 2004 HC. Tanga. After having shown what was wanting in the decision of the trial court, I am firm to say that the appeal'has succeeded. For the aforegive reasons the conviction of. the Jrial court is hereby quashed and the sentence of 30years is hereby set aside.. ;Tt:re .1;:appellant and the second accused are ordered to be released unless held on another justifiable cause. The second accused did not appeal against the decision. :After 1 " '--.,' evaluating the decision of the trial court and the. :available evidence on records. I found it meet and just to invoke the revisional .powers under section 45 (3) of MCA Cap. 11 RE. 2002 and proceed to revise the decision and set aside the sentence passed against the second accused .. · · ~~ (R. I. RUTATINISi{~) PRM (EXT.l) ... . 3 I 1 I 2 O1.i,,,,-,. ,' ~ ,, r • 1 ' -· . J'- • · -·· - ·, / . :. ( : "i; ,,-,r , .,-."" , _1i}cY"' t•·~~-.)Jf/.\. c:::~,e-D'iY t ;;,,;,s r;,:\i S Ol0,, ' , Delivery in the presence of the appellant in person and MS. Magoma SA for the respondent. Right of Appeal explained. ~ft_ (R. I. RUTATI~SIBWA) PRM (EXT.]) 3/1/2012 DEl\!T Mti.rne