20120516 TZHC Dodoma 1

~ . IN THE HIGH COURT OF TANZANIA t. AT DODOMA {APPELLATE JURISDICTION} (DC) CRIMINAL APPEAL NO. 74 OF 2011 ·(original Criminal Case No. 323 of 2006 of the District Court of Manyoni District at Manyoni) JUMANNE FOCUS @ BERNARD MNYAMPALA .............APPELLANT VERSUS THE REPUBLIC ••••••••••••••••••••••••••••••••.•••••••••••••••••••• •· ••• RES PON DENT JUDGMENT 18/4/2012 & 16/5/2012. KWARIKO, J: The facts of the case which bred this appeal show that one GOD S/0 HAI@ BABU, PW2, was sleeping in his house at about 01.00 am on 19/1/2006 when he was aw~ken by some noises. He approached his • door to ~ee what was the matter when he discovered that the same had • been broken with a big stone known as 'FATUMA'. About three thugs invaded him and assaulted him with bush knife and stole shs. 38,500/= from him. Among the thugs PWl identified the appellant herein and one MAWAZO JUMANNE who was sent to Primary court. PWl raised alarms where two watchmen PAUL MWARKO, PW2 and JULIUS JACOB, PW3 answered the same but the thugs ran away. 1 PWl was sent to Police Station where a PF3 was issued to him to go to hospital. The appellant was arrested and charged with the offence of Armed robbery contrary to section :285 and 286 of the Penal Code Cap. 16 of the Laws Revised Edition 2002. It was alleged by the prosecution that the appellant had on the 19th day of January~ 2006 at about 01.00 hours at Manyoni · township within Manyoni District in Singida ·Region stolen cash Tshs. 38,500/= from GOD 5/0 HAI @ BABU and cut him with bush knife in order to obtain and retain the said property. The appellant denied the charge and during the trial the said big stone; '(FATUMA)' and PWl's PF3 were admitted in court a·s exhibits PWl and P2 respectively. In his defence the appellant raised a defence of alibi to the effect that he vvas attending and guarding his farm against pigs from 15/1/20061 to 25/1/2006 which alibi was supported by his brother 'i JOSEPH FOCUS, DW3. He further said he '◊'as arrested on 31/1/2006 and beaten by police, hospitalised for one day and stayed at Police . Station for ten days before he was sent to court. . The trial court found that the appellant's guilty had been proved beyond reasonable doubt. However, the charge of Armed Robbery was found not to have been proved and hence the appellant was convicted 2 • of the offence of Robbery with -Violence and was sentenced to fifteen (15) years imprisonment. Having been dissatisfied with the trial court's . decision the appellant preferred this appeal where he raised about eight (8) grounds of appeal. However, the grounds of appeal raise the following; four essential points of complaints; first; that, the prosecution did not prove the robbery incident, Second; that, the evidence of identification was not water tight again~t the appellant, Three; that the trial court's judgment did not comply with section 312 (2) of the Criminal Procedure Act, Cap. 20, Revised Edition 2002 and Four; that, the trial court erred in law and fact by ignoring.the defence evidence. When this appeal was called for hearing the appellant only reiterated ~his grounds of appeal. On the other hand Mr. Katuli learned · State Att~rney appeared to , argue this appeal on behalf of the respondent/Republic where he did support this appeal. Mr. Katuli gave his reasons for the said stance which will be referred in the course of this judgment. As for the first ground of appeal this Court is of the opinion that even if no local area leader came to testify on the occurrence of this incident, but since two independent witnesses, PW2 and PW3 came to testify to the effect that they answered alarms at PWl's then the court 3 be~ieves that this incident happened. ·It is only doubtfu·I that no police officer came to testify as to what they saw at the. scene after the complainant reported the same. The Police ought to have testified also to corroborate the complainant's allegations against the appellant and what prompted them to arrest and charge him. The police also could have come to clear the contradictions about the position of the breaking stone (FATUMA) which PWl said was outside the door while PW2 ~aid it was inside the house. These doubts and contradiction create doubts as to, vyhether the incident occurred the way the prosecution wi~esses explained. Though, the first ground of appeal fails. ", In the second ground of appeal the court agrees .with both parties that the identification of the appellant at the scene vyas not proved. This ····is'··s·cybecaused:>Wl did not state whether there was any sour.ce of.;JJght in his ~f)g:~~ ,that enabled him to identify his assailants at that hour of the nig~i~<r%\ihe absence of any source of light PWl could not have said to C_'>~-~~,.:;\.)l have dcdentified any thug at the scene. Even though PWl said the thugs '\ took him outside where he said there was moonlight, he did not explain ~ . ~ . . its inteQs'fty which could have helped him to identify any of them. To prove that ., PWl did not identify any thug at the scene he testified that he did ~ot remember the appellant's clothes during· the material time. ~ l Generally, PWl did not explain the conditions favourable for proper identification. He did not also explain the distance between him and the \ thugs. 4 PW2 and, PW3 who said identified the appeUant who was fleeing from the scene did not state how near they were from each other and the sources of light used to identify him. Hence, the conditions for proper identification as provided in the famous case of WAZIRI'AMANI VR [1980].T.~.R 250were not met in this case [see also RAYMOND FRANCIS VR [1994] T.L.R 100. Thus, the second ground of appeal is answered in the positive. ... As for the third ground of appeal which Mr. Katuli learned State ·, ' ~ Attorney did not address, this court is of the opinion that section 312 (2) of the Criminal Procedure Act had been complied with by the trial court when it prepared· its judgment. The judgment specified the offence charged and that which the appellant was ultimately convicted with. This ground is thus non-meritorious and it is- hereby rejected. :fhe fourth ground of appeal complain about non-consideration of the def~ce evidence by the trial court. Also, Mr. Katuli did not address this cof!1plaint. This court agrees with the appellant that the trial court did not consider the defence evidence. The appellant raised a defence of alibi but the trial court did not consider it at all. Although the defence was raised during the defence but nonetheless the same ought to have been considered as it is provided under section 194 (6) of the Criminal Procedure Act (Supra). What the trial court considered is the allegation that the appellant was beaten by the police and that he did not prove his injuries. This was not the appellant's defence but only a narration of what happened to him after his arrest. 5 Thus, failure to consitler the appellant'~ defence amounted to . . . denied of fair hearing which is a constitutional right (Article 13 (6) (a) of the Constitution of the United Republic of Tanzania). This omission viciated the judgment. Also, in line with the foregoing, the appellant was not given opportunity to say anything when exhibits Pl and P2 were tendered and ad!]li~~d in court. The appellant was denied the right to be heard. Thus, these exhibits were not good evidence and are hereby expunged from "\, the record .. And finally, the- Court agrees with Mr. Katuli that PW3, JULIUS JACOB was not mentioned during the preliminary hearing and his testinrr'.Q@Y ~ ~.;;~,: ·was received without first getting leave of the Court to summon him. The appellant was also denied the right to know this witness's presence at the trial before he testified. Thus, his evidence '\ was illegallv.: received and thus the ~ same is discarded. 'i Consequently, the -Court finds that the prosecution case was not proved beyond doubt against the appellant, this appeal is thus allowed, conviction quashed and sentence is set aside. The appellant is ordered to be released from custody unless his continued incarceration is in connection with other lawful cause. 6 It is held accordingly. JUDGE 16/5/2012 DELIVERED AT DODOMA. 16/5/2012. ' Appellant: Present. For Respondent: Ms. Magoma State Attorney. Cf c:= Miss Komba. 7 r\ t: r, Jj 1 ': , ,: j 1:·; .ff:i rJ JJ 1) r,} . ~':! fj, \•·'•.' !i :i Ii l t '' :1 I ! j 'I I :l I l j 'l ! : j ~ j :l '' 1 ' i '.1 'j I L'