20150723 TZHC Arusha

IN THE HIGH COiURT OF TANZANIA AT ARUSHA CRIMINAL APPEAL NO. 23 OF 2015 (Originating from Monduli District Court Criminal Case No. 11/2014) I THOMAS LAIZER @ KAKAA .... . ~ .......................... .... APPELLANT I I VERSUS I THE REPUBLIC. ■■ • ■ •• ■■■■■■■■■ • ■■ •••• ■ I ■■■ I ■ ■ ■ ■ ■• ■ •• ■ ••••• ■ I ■ .RESPONDENT 11 I JUDGMENT Date of last Order: 21/07/2015 Date of Judgment: 23/07/2015 BEFORE S. C. MOSHI, JUDGE The appellant Laizer @ Kakaa was arraigned before Monduli District Court for the offence of armed robbery c/s 287A of the Penal Code [Cap 16 R.E 2002] as amended by Section lOA of the Written Laws (Miscellaneous Amendments) Act No. 3 of 2011. The appellant was charged together with two other accused persons. The appellant was the 1st accused persons. The appellant was the 1st accused I person and the others; Paulo s/o ,Raphael and Emmanuel s/o Godfrey Kivuyo, were referred to as 1st a0d 2nd accused persons respectively. i The trial court found that the 1st accused was guilty of the offence. Hence, he was convicted and senfenced to serve a term of 30 years in nd Jail. Whereas, the 2 and 3rd acdused persons were found not guilty ' hence, they were acquitted accordingly. I 11 I ' Aggrieved by both conviction and sentence the appellant preferred a petition of appeal which contained two grounds of appeal as follows: 1. That, the trial court erred in law and in fact when it convicted and sentenced the appellant of armed robbery while neither PWl nor PW4 testified to the effect that there was an offence of armed robbery committed. 2. That, the trial court erred in law and in fact in not finding that the charge against the appellant was not proved on the required standard. At the hearing of the Appeal Mr. Nuda Senior State Attorney appeared for Republic whereas the appellant appeared in person. The background of the case; there was evidence to the effect that PWl. Beatrice d/o Jonathan returned at her home at 23:00 hours. She had kept the keys for her house at Mariam. She had to wait for Mariam so she could give her the keys. Hence, she decided to go to PW4's (Angela's) room while waiting for the keys. While at Angela's place, she and Angela heard some noises. They decided to look out through the window. According to PWl, she was able to see through the window 3 men carrying her bag, mattress and a mirror. They opened the door and were able to see 1st, 2nd and 3rd accused persons. The 3 threatened them with an iron bar, a knife and a screw driver. They told them that, if they raised an alarm they would kill them. They remained silent. They followed the robbers there after and raised an alarm. The accuseds were arrested by Militiamen who were on patrol. They identified them because there was electricity light. PW4 (Angela 2 d/o Elibariki) said that she was with PW1 when robbers broke into Mariam's (PW2's) room. PW2 was liviing in that room with PW1. That on the fateful night she was with PWL They saw through the window PW2 room left ajar and saw young men who were armed with knives and an iron bar. She raised an alarm; those young men told her to shut up or otherwise they would kill her. It was the 1st accused person who threatened her with a knife, the 2nd accused was holding an iron bar and 3rd accused ran away. The trio stole a mattress and two bags. PW6, a militiamen was on patrol on that night; he was with 14 others. While on patrol, they heard an alarm. The 15 scattered into different direction, he and one babuu saw some people who shone torch light into them. The two ran after those people. One of those people had a knife; that person hit him with a knife. He (PW6) beat that persons on his hand. That person escaped towards the acacia trees. He couldn't pursue him as he was holding a knife. They went toward a different direction. There they found a person who informed them that there was a person who was hiding in a chicken hut. They took him out. The person was holding a knife and an iron bar. He identified that person to be the 1st accused person. PW3, Nurdin s/o Yusuph wa.s with PW6 on night patrol. He among other things said that they heard an alarm. They saw two people, one of them had a suit case, when that person saw them, he threw down the suitcase, the other one ran and flashed a torch light at them and escaped to a chicken hut. They found a thief with 2 bags and mattress and the first accused was arrested in a chicken hut. PW4, F. 8032 D/Constable Antony investigated the case. He interrogated the suspects, recorded their caution statement. The 1st 3 accused admitted to have committed the offence and he indicated other accused persons. For defence, the appellant denied to have committed the offence. That, on 18/04/2014 at 4.00am he was arrested at his home by Police officers. He denied to have recorded any caution statement. Before this court the submissions were brief. The appellant submitted among other things as follows: The witnesses failed to give evidence proving armed robbery because PWl, said that he saw 3 people through the window; they were carrying a bag, mattress and a mirror; It's not known if there was any other person in the room which was broken. I For armed robbery to be committed the victim has to be threatened by an arm. That, the items which were tendered by PWl, were not identified by the victim; because she did not tender any receipt to prove that the properties belonged to PW 1. The items were not supposed to be admitted in court as Exhibits because it is PWl herself who tendered the goods in court. On the other hand, Mr. Nuda responded that the appellant was arrested at the scene, identified, and found with the stolen items. For the offence of armed robbery to be proved and for the accused to be convicted there has to be proved that before or after theft the accused used offensive weapon or instrument; or there were more than one person. The accused used dangerous 'Weapon; PWl said that, "Thomas, Paulo and Emannuel had an Iron bar, knife, a screw driver and threatened us that if we would raise an alarm they would kill us." 4 On Cross-examination, she said that, " you came out, I saw you again, you threatened us with a knife iron bar and screw driver". Also, PWS, said that she saw the 1st accused clearly, as he was the one who threatened her with a knife. The witness who arrested the appellant, on cross-examination, said says that they arrested the appellant in a chicken hut having an Iron bar, knife and Match Box. Also PW6 said that that 1st accused had a knife which had a leather handle and Iron bar with a bolt. Mr. Nuda submitted further that, another issue, is whether properties were stolen from that room. The victim, PWl said that they stole a Mattress and 2 empty bags. That, the appellant was arrested with the bags immediately after the event. The victim identified the Mattress and the bags. That, it is not necessary for the owner to prove ownership by receipt. Usually, a receipt is not issued for everything which is bought. The accused's defense is just an afterthought as he didn't object the admission of the items as Exhibits in court. Mr. Nuda agreed that, it's true that PWl tendered the items in court, it's true that the investigator was supposed to tender them as he was custodian. However the court should consider if there was any miscarriage of Justice? He suggested that the answer is in the negative, because the accused didn't object their admission; also he had a chance of cross-examining the witnesses. Mr. Nuda also admitted that, there's also problem with the Mattress and bags. The items were never identified by the militiamen, PW3 & PW6; who arrested the appellant with the goods; but failure to identify these items does not exonerate the appellant as there's still 5 other pieces of evidence; he was arrested at the scene, and he was identified by PW1 & PWS; by the aid of electricity lights. For rejoinder the appellant said that, the witness, said she looked through the window and saw people passing. He was not arrested at the scene. He was arrested on the way, the Militiamen arrested him with "Mirungi". Also the exhibits were supposed to be kept at the Police, here the witness carried the goods from her home and brought them to court. I have considered both side's submissions and the evidence as a whole. I would like to point out at the outset that the evidence shows that the appellant was not arrested at the scene as is suggested by the state attorney. The evidence shows that the robbers had left the scene that is when PW1 and PWS raised an alarm. The appellant was later on arrested by militiamen who were on night patrol. There is an issue of identification. I am of the opinion that the appellant was not properly identified. Mr. Nuda submitted that there was electricity light. However the witnesses didn't not say how that light enabled them to identify the culprits. They were watching through the window, how did they identify the robbers who had stolen in another house and they were outside the witnesses room. It was night time at 23 hrs ii. at 11pm. The evidence had to be water tight in such circumstances, see the case of Amani Waziri V. R [1980] TL R 250 where the court held that: 1 To do so, he w1'll need to mention all the aids : .......... to unmistaken identification like proximity to the person being identified, the source of light, its intensity, the length of time the person being identified was within view and also whether the person is familiar'~ 6 PW1 said that, they were looking through the window; it is not known at what point did the culprits threatened them as according to her, they were afraid to raise alarm, they kept quite, it is until when the robbers went away, they followed them at a far. Regarding the stolen items, there was no special identification mark shown by the witnesses, the fact that the mattress was burnt is no specific mark, any mattress could be burnt. See the case of Joseph Mkumbwa and Samson Mwakagenda V. R, criminal appeal No. 94/2007(unreported), court of Appeal. Furthermore there was no evidence to show that the mattress which the culprits dropped is the same mattress which was brought i,h court. Worse still, the goods which were said to have been found with the appellant and compounded by militiamen, were brought to court by the victims in contravention of the laws regarding up keeping of exhibits. Having all that in mind, it is my view that there is a lot to be desired in prosecution's evidence. The available evidence cannot sustain a conviction .The benefit of doubt goes to the accused. Consequently, the appeal succeeds. The conviction is quashed, the sentence is set aside and the appellant is set free forthwith unless he is held in gaol for other lawful causes. Right of Appeal is Explained. s.c.C. JUDGE 23/07/2015 7