fakhii ismail vs republic 2013 tzhc 2134 4 november 2013

IN THE HIGH COURT OF TANZANIA AT MTWRA CRIMINAL APPEAL NO 39 OF 2012 Original Ruangwa District Court Criminal Case No 155 of 2011 (Before: Hon. B. R. Nyaki Esq - RM) FAKHII IS M A IL........................................................APPELLANT VERSUS THE REPUBLIC — ................. ------- ----------------- RESPONDENT JU D G M EN T 31st July 2013 and 4th November, 2013 M. G. MZUNA. 3.: Fakhii Ismail is currently serving 15 years imprisonment upon his conviction for the offence of Attempted Armed Robbery contrary to Section 287 B of the Penal Code Cap 16 R.E. 2002 as amended by Act No. 4 of 2004. The brief facts are that: The appellant was arrested at the scene at broad day light (8.30 AM), attempting to dispossess a motor cycle PW3 Shuuza s/o Ramadhan Shedafa while armed and did stab PW3 with a knife. According to their agreement, the transport charge of Tshs 8,000/- was to carry him up to Chilangalile Village with the motor cycle. However upon arriving at the agreed destination he said he should take him far from that village. Upon going some steps the said PW3 became suspicious and therefore asked why sc? The appellant told him he wanted the motorcycle. As proof that it was not a joke, to put his motive into action, the struggle ensued. It is during this time when the appellant stabbed him with a knife (Exh. PI) on a neck and he suffered "harm" as per the PF. 3 (Exh. P2). Luckily enough, PW3 overpowered him and got hold of the knife as the appellant wanted to stab him for the second time. PW3 was rescued by PW2 Mohamed Salum @ Mkwile a teacher who was on his way to Nachingwea and PW4 Julius Ajabu. Had it been not for PW1 Seleman Ajali @ Mbinga (then the Village chairman of Chilangalile) to lock the appellant in the village office for his safety things would have been worse as the irate mob wanted to kill him. During his defence the appellant denied to have committed this offence but the trial court believed the prosecution evidence and proceeded to convict him. In this appeal he had nothing to add apart from relying on his 9 grounds of appeal which taken as a whole is challenging the procedural aspect. Mr. Makasi, the learned State Attorney for the respondent said that he does not support this appeal. The first issue is whether the appeal court can determine on matters which did not emerge in the lower court during trial? There are some matters which never emerged at the trial court but have resurfaced on appeal like the issue of tendering of the knife Exhibit 1. 2 The appellant in his ground no 6 and 7 alleges it was impossible for him to have been in possession of a knife which was tendered on 17/7/2012 when he was in jail. Secondly that PW1 said saw PW3 holding a knife, how could he have stabbed him with same? Responding to the above points, Mr. Makasi, the learned State Attorney submitted that the appellant's conviction was not based solely on exhibit PI which was tendered on 13/7/2012 when the appellant was present. So he apposed to his statement in the 6th ground that it was tendered on 17/7/2012. He further stated that the possession of the knife by PW3 has nothing to do with the appellant. The evidence of PW1 shows the appellant was responsible for that knife, and that PW3 could not have stabbed himself but it was the appellant who did so. I agree with the argument of the learned State Attorney. When the said knife was tendered the appellant was present and it is not on 17/7/2012 as alleged but was on 13/7/12. Even then he never raised the issue that he was by then in prison. This I take as an afterthought. Similarly, when he cross examined PW1 on the alleged possession of a knife he gave some elaborative answers. It is wrong to raise it on appeal. What I gather from the evidence is that PW3 got hold of a knife from the appellant/ dispossessed him after he had stabbed him for the first time and after he was assisted by the rescuers. This argument must therefore fail. The second issue is whether the appellant was denied chance for mitigation? The appellant in his first ground of appeal say was not accorded such right of mitigation before sentence. The argument of Mr. Makasi, the learned State Attorney was that the appellant had been given the chance for mitigation as the last page of the proceedings points to that effect. I agree as well submitted by the learned State Attorney and the record is loud and clear at the last page of the judgment that he was accorded such chance to mitigate. This argument therefore has no basis. The second issue fails. The third issue is whether the PF3 was received according to the law? The appellant say in his fourth ground of appeal that PF.3 (Exhibit P2) was not stamped by the Government Hospital and therefore was wrongly tendered. On this issue of PF3 Mr. Makasi submitted that the allegation that it was not stamped is not true. The only defect according to him, it was tendered by the victim instead of the Doctor as spelt out under section 240 (3) of the Criminal Procedure Act Cap 20 R.E. 2002 that was wrong but left for the court to decide. The issue which was raised is on the authenticity of the PF3. It bears the signature of the Doctor who filled it. Above all it was stamped with a seal. So the argument of the appellant holds water. However, as well submitted by Mr. Makasi, the learned State Attorney that the PF3 was wrongly tendered by PW3 instead of the doctor who made it and the court never informed the appellant his right to require the doctor who made PF3 to be summoned and made available for cross examination. I agree that this was an anomaly and therefore the document i.e. PF 3 should be expunged from the record. Even if it is expunged still the available evidence supports the finding for his conviction. The fourth issue is whether it was illegal to allow the amendment? The record show the substitution of the charge was made on 9/2/2012 after the prosecutor had prayed to substitute the charge and the court granted his prayer. No explanation was given for the sought amendment because the substituted charge and the present charge are the same. It was made before the adduction of evidence from the prosecution. The law allows substitution of the charge under Section 234 (1) of the Criminal Procedure Act CAP 20 RE 2002. This ground equally fails. The fifth issue is whether the evidence received did conclusively prove the charge of attempted Armed Robbery? Was the charge proved to the required standard of proof? Section 287B of the Penal code which is relevant to the charge reads; "Any person who with intent to steal anything from another person, is arm ed with any dangerous or offensive weapon or an instrum ent, or is in com pany o f one or more persons, and in the course thereof threatens, or attem pts to threatens to use actual violence to any person, com mits an offence term ed "attem pted arm ed robbery" and on conviction is liable to im prisonm ent for a minimum period o f fifteen years with or without corporal p u n is h m e n t (U nderscori ng mine). From the above provision of the law and the evidence on record, it is clear that the appellant had intended to steal PW3's motorcycle because the agreement was from Ruangwa to Chilangalile for Tshs. 8000/-. When they reached at Chilangalile (the agreed destination), the appellant asked PW3 to go further meaning he wanted a place where there were no other people who could frustrate his plans of stealing the said motorcycle. All this was done while armed with a knife. He then executed his plans by attacking PW3 on the neck from behind. He even told him when asked what was the matter, that he needed a motorcycle. He proceeded to stab PW3 at the neck with a knife. Both the actions and words supported his intention to steal the said motorcycle. He was rescued by PW2 and PW4 otherwise the motor cycle could have been stolen. All the elements of Attempted Armed Robbery existed because PW3 was stabbed with a knife by the appellant on the neck in the process of stealing the said motorcycle when he was armed with offensive weapon/instrument. Therefore the ingredients of the offence had been proved by the prosecution. It is the appellant and not any other person who committed this offence because he was arrested at the scene of crime at broad day time by PW2 and PW4 who went to rescue PW3. PW4 told the court that on his way to Nachingwea when he reached out of the Chilangalile village, he saw two people fighting while the motorcycle was lying behind. He managed to rescue PW3 who was injured on his neck and on his hand. The evidence of PW2, PW4 and PW1 corroborate that of PW3 that it was the appellant who committed this offence and was arrested in the course of committing it. Although the appellant denied committing this offence for the reasons that he cannot be on the motorcycle without wearing a helmet however, a motorcycle can be ridden without wearing helmet. After all, does it have any connection with the evidence against him that he was seen committing the offence. He had nothing to defend against. Suffice to say that he admitted to have approached PW3 for hiring of motorcycle transport. The sixth issue is whether the imposed sentence of 15 years imprisonment was excessive? Mr. Makasi has submitted that the 15 years jail sentence is the minimum sentence under section 287 B of the Penal Code and was correctly imposed on him. That his allegation of being sentenced to serve 30 years imprisonment it was not based on the court record. He prayed for this appeal to be dismissed. This court finds that Section 287 B of the Penal Code (supra) provide the minimum sentence of 15 years imprisonment for the one who is convicted for attempted Armed Robbery. So the 15 years imprisonment with six strokes of the cane imposed to the appellant was according to law and the same cannot be altered. The last issue is whether this appeal should be allowed or not? From the above analysis, I agree with the submission of Mr. Makasi, the learned State Attorney that this appeal is devoid of merits. The same is hereby dismissed. The appellant should continue serving his jail sentence. M. G. MZUA, JUDGE. 4/11/2013 Court: Judgment delivered this 4th day of November 2013 in the presence of Mr. Mseti, the learned State Attorney and the appellant. i\ M. G. MZUA JUDGE. 4/11/2013