20140905 TZHC Mwanza

I IN THE HIGH COURT OF TANZANIA IN THE DISTRICT RIEGISTRY · · AT MVvANZA (APPELLATE JURISDICTION) HIGH COURT CR. APPEAL NO. 121 OF 2012 (Original Cr. Case No. 246/2010 of the District Court of Tarime at Tarime} CHACHA MSOBA @ SAMSON _CHACHA ........ APPELLANT VERSUS THE REPUBLIC ..................................... RESPONDENT REASONSFORJUDGEMENT 22/08 & 5/9/2014 · Sumari, J. The appellant was convicted and sentenced to ?erve a term of 30_ . . years imprisonment for the offence of Armed Robbery contrary to Section 287 A of the Penal Code. He was dissatisfied with both conviction and sentence, hence·~his appeal. . . . . In. his g·rounds of appeal he. is mainly complaining that the circumstantial evidence which based his conviction did not point to his guilty. That the court erred in law in admitting t_he appellant's confession without inquiring and attending the ·issue of ·torture. That the trial Magistrate erred in law in. not informing him of his right to cross examine ~- 1 the doctor who did· not testify and that the trial court erred· in not· considering and according weight on his defence and finally that the judgment written is not worth termed a lawful judgment.. Mr.· Kidando, State Attorney drd not support th~ conviction due_ to· . .. weaknesses adduced against the appellant. Also for the errors clearly envisaged in the proce~dings. The evidence against the. appellant is into two folds, namely, the circumstantial evidence .and the confession. There is no dispute that the incident according to Pwl occurred at nighf i.e. at 23.00hrs.· Pw1 the victim did not identify the appellant. He is specific on how· he was invaded and how he retaliated by hitting the assailant who in turn over powered him and fell unconscious. The appellant was arrested in the following morning·-of the incident at the nearby village allegedly found oozing blood furiously. That -Pw2 asked him what be set him and that appellant confessed that he was injured in the commission of armed· robbery. That Pw2 reported to Pw3 about the presence of the appellant and Pw3 went and interrogated the appellant who confessed the charges. Looking· at this evidence, it is · the evidence which requires . corroboration. Despite the appellant being found at the said state and confessed to Pw3 we think that corroboration is mostly required to prove that the appellant is the one who robbed! Pwl and not any other person. . ~- . 2 I 'i I i • ·j •• \ As for the ca.utioned .statement tendered by Pw4 he submitted that . . _the admission of exhibit "B" was improper· because after the appe!iant's complaint that he was tortured the trial court ought to have. inquired on the alleged torture by conducting the inquiry.. . . . In the case of Hassan WaHsema &. Another-Vs. Rep ... (1959) EA 800, where the court held: - .. "Trial within a trial should be adopted at trials before a judge sitting with assessors or before a Magistrate· when the issue of admissibility of a statement is to be determined/~ · ln our case at hand- at pg. 6 of proceedings the trial court erred in not conducting the inquiry and wrongly admitted the cautioned statement of. the appellant. Since this is the position· he called .upon this court to expunge the said exhibit "B" from the evidence on record .. After the expunging of the evidence, exhibit "B" then we remain with no evidence to warrant conviction. As ·to whether evidence of the Doctor was omitted wrongly, he contended that that ground has no merits as the appella-nt did not object to the tendering of the said PF.3.. As for the complaint that the court did not consider the appellant's ' def~nce, this ground is baseless because thE: trial magistrate considered the defence very well and found it unreliable. · . As for the complaint that the judgment of the trial court is worthless been termed a judgment, he submitted that it is a judgment with all ingredients of judgment. /fit:--',.I 3 ' It was on the .reasons I instantly allowed the appellant's appeal, qua·shed the Conviction and set aside th~ sentence. ~ · .JtN.Jvt.. Sumari .fudge 4