20141107 TZHC Dar es Salaam2 1

F 1 '- ~ c...,o f? :1 0IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CRIMINAL APPEAL NO. 99 OF 2014 (Originating from Morogoro District Court Criminal Case No. 580/2012) JUMANNE MOHAMED ........................................... APPELLANT VERSUS REPUBLIC ........................................................... RESPONDENT Date of JA,st Order: 29/10/2014 Date of Order: 7/11/2014 JUDGMENT S.S.S. KIHIO, J:. The appellant, Jumanne Mohamed was charged with and conviced of Armed robbery contrary to section 287(2) of the Penal Code, Cap. 16(RE.2002) in the District Court of Morogoro. He was sentenced to fifteen (15) years imprisonment plus five strokes. He was aggrieved by the conviction and sentence, hence this appeal. 1 The facts of case in the trial court was that on 18.12.2012 at 21.00 hours, Badi s/ o Hamisi (PWl), a business man, in the companion of Rahim Kiula (PW2) crossed along Soko Kuu area and they met six men who were coming in front of them and who had knives and machetes - "panga" on their hands. The six men grabbed Badi s/o Hamis (PWl) and took his (PWl'S) and took his (PW'S) Tsh. 500, 000/= and Nokia phone worth shs. 39,000/=. As he (PWl) shouted and fought the six robbers cut him (PWl) at his (PWl'S) hand and fled away with his money and phone. Civilians managed to catch the appellant and took him (appellant) to the police station. It was in the evidence of PW 1 that there were light along the road and he managed to identify the appellant by face. It was also in his evidence that the appellant had a knife and "panga" at the scene of crime but he cut him (PWl) using the knife. It was also in his (PWI'S) evidence, that the appellant had a knife when he was apprehended. It was in the evidence of Rahim Kiula (PW2) that on 18.12.2012 when he and PWl were on the way home from the bank he (PW2) met a man he (PW2) knew and they (PW2 and that man) started to talk. It was also in the evidence of Rahim Kiula (PW2) I that he met PWl surrounded by five people who had woods, panga and knives and when they fought with the robbers while shouting good Samaritans helped them (PW2 and PWl) and the appellant was arrested. It was in the evidence of PW2, in cross-examination by appellant, that the robbers who managed to fled away left the· 2 fi I The appellant· raised ten grounds of appeal in his Petition of appeal. However, in essence, his grounds of appeal are basically three, namely, (i) that the trial Magistrate erred in finding that the conditions at the scene of crime were favorable for proper and accurate identification of any of the robbers. (2) That the Trial Magistrate erred in law by not drawing an adverse inference against the prosecution side for failure to summon the Samaritans who allegedly arrested him (appellant) at the scene of crime (3) That the Trial Magistrate erred in law by convicting him (appellant) relying on the big knife (Exhibit PI) which was not among the exhibits listed during Preliminary hearing. The appellant appear in person while the respondent, Public is represented by Mr. Faraja Msuya, learned Stated Attorney. The appellant had nothing to submit in support of his grounds of appeal and decided to adopt the grounds of appeal shown in his petition of appeal. Mr. Faraja Msuya does not support the conviction and sentence. He submitted that PW 1 told the trial court that the appellant had a "panga" and knife at the scene of crime and he cut him (PWl) using a knife. He further submitted that it was indicated during preliminary hearing that there was no exhibit shown but a "panga" 4 (Exhibit PI). Was the one used in cutting PWl. He contended that PWl and PW2 told the trial court that the appellant was chased and arrested by the people who were at the scene of crime but no person was called to prove that he or she was amongst the people who chased and arrested the appellant. He further contended that the defence raises doubt on the prosecution case as none of the person who arrested the appellant was called to testify on the prosecution side. The main issue for determination in this appeal is. whether the prosecution side proved the guilt of the appellant beyond reasonable doubt or not. Badi Hamisi (PWl) testified that on 18.12.2012 at the scene of crime he (PWl) and Rahim Kiula (PW2) met six robbers who had knives and machetes - "panga" and they took his (PW 1 'S) Tshs. 500,000/= and phone whereas the evidence of Rahimu Kiuoa (PW2) showed that at the scene of crime he PW2) met PWl surrounded by five people (robbers) who had woods, "panga" and Knives. Quite plainly, the evidence of PW2 contradicted the evidence of PW 1 in respect of robbers at the scene of crime and the weapons they possessed during the commission of the alleged armed robbery. In my view, the contradictions in the evidence of PW 1 and PW2 were not minor and went to the root of the matter. Following the contradictions in the evidence of PW 1 and PW2, the prosecution case was doubtful. 5 The doubts in the prosecution case did not end there. It was in the evidence of PWl that the appellant cut him using a knife at the scene of crime and when he (appellant) was apprehended he had a knife. The evidence of PW2 supported the evidence of PW 1 that when the appellant was arrested he had a knife. According to the evidence of Detective sergeant John (PW3) when he was given the Police case file concerning Armed robbers in respect of the appellant there was a machete- "panga" (Exhibit P2) he (PW3) tendered in court as an exhibit. Mr. Faraja Msuya argued, and I think correctly so that it was doubtful if the "panga" (Exhibit Pl) was the one used in cutting PWl. From the evidence available in the trial court, the prosecution case was, indeed, a doubtful one. It is settled law that the benefit of doubt must go to the accused person. As the prosecution case was doubtful, the benefit of doubt ought to have been resolved infavour of the appellant. Mr. Faraja Msuya correctly declined to support the conviction. From the foregoing reasons, I allow the appeal, quash the conviction and set aside the sentence. 6 ,. The appellant be released from the prison forthwith unless so. held there on other lawful cause. ~ S.S.S. Kihio JUDGE 7/11/2014 Court: Judgment delivered in ·the presence of the appellant an Miss Felista Lela, learned State Attorney. J~ S.S.S. Kihio JUDGE 7/11/2014 7