maulid sefu vs republic 2014 tzhc 2083 17 march 2014

IN THE HIGH COURT OF TANZANIA , AT TANGA CRIMINAL APPEAL NO. 35 OF 2012 [Originating from Korogwe District Court in Crim inal C a se No. 74 of 2011 at Korogw e] MAULIDI SEFU........ ............................................................................. APPELLANT 4 *’ VERSUS THE REPUBLIC.................. ............................ ................. '................... RESPONDENT JUDGMENT U. MSUYA, J. The ap p e lla n t, Maulidi Sefu w as c h a rg e d an d c o n v ic te d of Arm ed Robbery co ntrary to section 287A of the Penal C o d e [C a p . 16 R. E. 2002]. It w as alle g e d in the c h a rg e sheet that on 23rd d a y of M ay, 2011 at ab o u t 20.00 hours at Kilole a re a within Korogw e District in Tanga Region, the a p p e lla n t used a c tu a l vio le n ce an d m a n a g e d to steal cash m oney 164,000/= Tshs an d one m o b ile( ph.one m ake NOKIA va lu e d at 80,000/= Tshs both the property of Said A d am u . The trial court c o n v ic te d the a p p e llan t an d se n te n ce d him to 30 years im prisonm ent. Further, the trial m agistrate ordered the ap p ellan t to p a y the co m p lain a n t Said A d am u 244,000/= Tshs as a co m p ensatio n for the stolen properties. Briefly, the m aterial facts w hich led to this appeal are sum marized as follows:-On the m aterial d a y [i.e. 23.05.2011], the victim , Said A d a m (PW1), a businessman in flying passengers from one a re a to an o ther within Korogwe District by using his m o to rcycle \ i •. w as hired by the ap p e lla n t to take him from M a n d e la a re a to M tonga a re a . The a p p e lla n t co nsented to p a y the victim (PW1) 5,000/= Tshs.PW1 a d d u c e d e v id e n c e that w hen they arrived at M tonga a re a , the a p p e lla n t inform ed him to w ait the ap p ellan t's friend who could p a y him the a g re e d fare. The victim (PW1) together with the ap p e lla n t rem ained at M tonga for ab o ut half an hour. Late on, the a p p e lla n t informed PW1 that he has re ce iv e d a call through a phone from his friend to the e ffe c t that he w as at Kilole a re a . In that reg ard , the a p p e llan t asked PW1 to go to Kilole a re a . The victim (PW1) responded positively. W hen they arrived at Kilole, the a p p e lla n t’s friend denied p a y in g 'th e fare in question. Following such d enial the co m p lain an t d e c id e d to live the p la c e . PW1 also testified that in the course of leaving the p la c e he w as suddenly a tta c k e d an d strangled by the ap p e lla n t an d his friend on his n eck. He a d d e d that the a p p e lla n t together with his friend m a n a g e d to steal the co m p lain an t's m oney 164,000/= Tshs an d a mobile phone m ake NOKIA va lu e d at 90,000/= Tshs. The co m p lain an t (PW1) a d d u c e d further that in the course of strangling 2 actio n , he cried for help. Following such cries for help, two peo ple a p p e a re d to resc0e him but the a p p e llan t together with his friend m a n a g e d to e s c a p e from the sce n e of crim e. PW1 reported the incident at Korogw e police station an d following that report, the ap p ellan t w as a p p re h e n d e d . This p ie c e of e v id e n c e w as'co n firm ed by D 4146 D/CPL Anyetike (PW3). a police officer from Korogwe police station. PW3 testified further that in the course of interrogation, the ap p e llan t co nfessed to h a ve strangled the com plainant.. The caution statem ent to that eTfect w as p ro d u ced an d ad m itted as exhibit P2. M oreover, w h en the incident w as reported at Korogwe police station, the v ic tim ’w as given PF3 to go to the hospital for treatm ent. This inform ation w as confirm ed by Ashura Ally C h u m a (PW2) a clin ical o fficer at M ag u n g a hospital. The witness (PW2) p ro d u ced PF3 w h ich w as ad m itted as exhibit PI justifying that the co m p lain an t w as assaulted an d -strangled by a blunt o b je ct and sustained injuries on his n e ck . The a p p e llan t w as c h a rg e d and arraigned in the District Court at Korogwe facin g the c h a rg e of arm ed robbery. Basing on the e v id e n c e , the trial court found the ap p ellan t guilty, c o n v ic te d him an d punished him acco rd in g ly. . Dissatisfied with both co nvictio n an d se n te n ce , the ap p ellan t lodged this a p p e a l. In the m ain, the ap p e lla n t com p lains that the ch a rg e ag ainst him w as not proved beyond re aso n ab le doubt and therefore the trial court ought to h a ve not c o n v ic te d an d punished him 3 At the hearing of this 'a p p e a l, the A p p ellant a p p e a re d in * person-unrepresented*.white the Respondent w as represented by Miss Akyoo Learned State Attorney. In arguing the , a p p e a l, the ap p e llan t a d o p te d his three grounds of a p p e a l an d opted to hear first from the Learned State Attorney for the Republic. ' r i> ’ ,.i • • Submitting, Miss Akyoo supported the a p p e a l for the foilowing reasons. In the first p la c e , the Learned' State Attorney co n te n d e d that the c h a rg e sheet filed in the trial court did not disclose the ch a rg e d o ffe n c e ag ainst the a p p e lla n t. Elaborating, the Learned State Attorney c o n te n d e d that the a c c u s e d person w as c h a rg e d with the o ffe n c e of Arm ed Robbery co ntrary to section 287A of the Penal c o d e [C a p . 16. R. E 2002] of w h ich no dang erous or offensive w e a p o n w as used. So, the Learned Counsel pointed out that the trial m agistrate erred in law for arriving at a conclusion that the particulars of o ffe n c e in the c h a rg e sheet constituted the o ffe n ce of Arm ed Robbery. The Learned Counsel c o n c lu d e d , the point by stating that from the e v id e n c e on record together with the particulars of o ffe n c e did not establish that the a p p e lla n t com m it the o ffe n ce of Arm ed Robbery. Seco nd ly, the* Learned State Attorney supported the a p p e a l on ground that the cau tio n statem ent of the a c c u s e d person w as not reco rd ed within four hours, the prescribed period in terms of sections 50 and 51 of the Crim inal Pro ced ure A c t [C a p 20 R.E 2002]. A d van cin g her argum ent, the Learned State Attorney stated that the e v id e n c e of D4146 GPL Anyetike (PW3) in d ica te d that the statem ent w as re co rd e d on 17/6/2011 an d a c c o rd in g to. the facts the a c c u s e d w a s arrested on 15/6/2011. In that reg ard , the Lean e d Counsel subm itted that the a c c u s e d / a p p e lla n t’s cautions statem ent w as reco rd ed after two days from the d a te of his arrest. The Learned State Attorney C o nclud ed this point by co n te n d in g 'th at the i , caution statem ent exhibit PI w hich form ed the basis of co nviction w as unlawfully ad m itted . The third ground of w h ich the Learned State Attorney supported this a p p e a l is in resp ect of an inquiry. Miss Akyoo submitted on the point that despite the fa c t that the a c c u s e d retracted the cau tio n statem ent an inquiry was- not c o n d u c te d by the trial m agistrate. The Learned State'A tto rney referred this court to the c a s e of Mereji Logori, V. R, Criminal C a se Appeal No. 14 of 2010, CAT at Arusha [unreported] to the e ffe c t that if the prosecution intends to tend er the cautio n statem ent *in court as e v id e n c e in subordinate court an d the a c c u s e d o b je ct to its admissibility the next step is to c o n d u c t an inquiry. The State Attorney c o n c lu d e d the point that in present c a s e an inquiry w as not c o n d u c te d . The fourth ground of w hich the Learned State Attorney supported the a p p e a l is ab o u t calling witnesses. Explaining, the Learned State Attorney arg u ed that the witnesses w ho w ere at the sce n e of crim e w e re not c a lle d in court to give e v id e n c e . She a d d e d that e v e n the arresting officer w as not c a lle d to co m e and testify on the m atter. The Learned State Attorney referred this court to the decision in the c a se of Amos Paulo and Another v. DPP, Criminal Appeal no*. 308 of 2009, and CAT at Arusha (unreported) to the e ffe ct that the arresting officer ought* to have ad duced e v id e n ce in re sp e ct of w hen the incident w as reported to the police 4 and how the a p p e lla n t w as arrested. ! _ f In conclusion, the" Learned Counsel urged the court to quash the co nvictio n an d set asid e the se n te n ce im posed ag ainst the ap p ellan t. : , . In his rejoinder, the ap p e llan t supported the argum ents of the Learned State Attorney. As re v e a le d earlier, b asically, the a p p e lla n t com p lains that the ch a rg e ag ainst him w as not* proved beyo nd re aso n a b le doubt. His com plain has merit b e c a u se of the following reasons: As co rrectly submitted by the Learned State Attorney, I h a v e re ad the contents of the c h a rg e sheet as co n tain e d in the particulai cla u se of the ch a rg e sh e et an d observed that it d o e sV io t re veal the o ffe n ce of Arm ed Robbery. Likewise, upon perusal of the e v id e n c e on record I h a ve noted that the record does not in d ica te a n y type of w e a p o n used by th e 'a p p e lla n t in com m itting the alle g e d o ffe n c e of Arm ed Robbery. The la w is very c le a r that for the o ffe n c e of Arm ed Robbery to b e co m m itted , there should be the use of a n y w e a p o n or dangerous arm . This is a c c o r d a n c e with section 287A of the Penal C o d e [C a p . 16 R. e 2002].It w as also insisted in the c a s e of Michael Joseph vs. Republic [1995] T.L.R 278 by the court of A p p e a l that though there is no express an d sp ecific definition of w h a t constitutes “ arm ed ro b b ery” it?is c le a r that if a dangerous or offensive w e a p o n or instrument is used in the course of a robbery such constitutes arm ed robbery. In the present c a s e the record does not in d icate that the a p p e lla n t w as arm ed with an y d angerous or offensive w e a p o n or instrument. In that reg ard, with d ue re sp e ct, the, trial m agistrate m isdirected himself in larriving at the conclusion that the use of a c tu a l vio le n ce in this c a s e constitutes the o ffe n c e of Arm ed Robbery. M oreover, section 300 of the Crim inal P ro ced ure A ct [C a p 20 R. E 2002] em pow ers this Court to co n v ict the a p p e lla n t for the lesser or minor o ffe n c e . H ow ever, in the present c a s e , the e v id e n c e on record does not prove the o ffe n c e of Robbery with vio len ce w hich is a minor o ffe n c e to the o ffe n ce of arm ed robbery. In addition, the e v id e n c e of PW1 to the e ffe c t that after the accused p erso n/ap p e llant a n d his c o lle a g u e ' strangled him, he shouted an d two p eo p le c a m e to help him is doubtful for lack of corroborative e v id e n c e from those p eo p le w hom he neither nam ed nor d escrib ed . Section 143 of the law of Evid e n ce A c t [C a p 6 R.E 2002] cle a rly provides that no particular num ber of witnesses is required to prove a c a s e , h o w ever in the c ircu m sta n ce of this c a s e , PW1 ought to h a v e assisted the prosecution an d the trial court by naming those w ho turned out to rescue him from a tta ckers and h e n ce sum m oned to a d d u c e corroborative e v id e n c e . So, the a b se n c e of their e v id e n c e w e a k e n e d the prosecution c a s e . 7 Another shortfall in this c a s e is on the cau tio n statem ent. As correctly subm itted by the Learned State Attorney for the Republic since the a p p e lla n t re tra cte d the statem ent, before adm ission, the trial m agistrate ought to h a v e m a d e an inquiry to d eterm ine the a p p e lla n t’s voluntariness in recording that statem ent. Therefore in view of the decision in the c a s e of Mereji Logori V. R [supra] with due resp ect the trial m agistrate erred in law for adm itting the a p p e lla n t’s retracted cau tio n statem ent without co n d u ctin g an inquiry. In that regard, exhibit P I-cau tio n statem ent is hereby d isreg ard ed . Having re -e va lu a te d the e v id e n c e on reco rd , d e p ic te d the shortfalls in the prosecution c a s e an d disregarded the caution statem ent, I am of the settled mind that the rem aining e v id e n c e neither proved the c h a rg e nor a n y minor o ffe n ce ag ainst the ap p ellan t b eyo n d re aso n a b le doubt. It follows therefore, that the a p p e a l has merit, it is hereb y allo w e d by quashing the co nvictio n an d setting asid e the se n te n c e . The ap p e lla n t should be released forthwith from jail unless is withheld for an o ther justifiable c a u s e . It is so ordered. /! i ; i %y' . i U; MSUYA, J. i Vv 17/3/2014 / j i 8