20160527 TZCA Arusha

IN THE COURT OF APPEAL OF TANZANIA ATARUSHA (CORAM: KIMARO, J.A., MMILLA, J.A. And MZIRAY, J.A.) CRIMINAL APPEAL NO. 35 OF 2015 NOLASCO MATHEY KAHEMA ................................ APPELLANT VERSUS THE REPUBLIC .................................................. RES PON DENT (Appeal from the decision of the High Court of Tanzania at Arusha) (Munisi, J.) Dated the 24th day of September, 2014 in {DC) Criminal Appeal No. 25 of 2011 JUDGMENT OF THE COURT 20 th & 27 th May, 2016 MZIRAY, J.A.: The appellant and one Silvester Damian Swai @ Selvee, were charged with and tried for the offence of armed robbery c/s 287 (A) of the Penal Code before the District Court of Rombo at Mkuu. They were convicted as charged and sentenced to thirty (30) years imprisonment. Aggrieved by the decision, the two appealed to the High Court of Tanzania at Moshi. While the appeal was fruitful to his · colleague, the appellant's appeal was dismissed. Dissatisfied, he instituted the present appeal. The facts of the case can be stated briefly as follows:- On 5/11/2009 at 17.30 PWl's son, Julius Selestine broke his arm while 1 playing with his fellow children. PWl took his motorcycle make Tuktuk white in colour (exhibit P3) which was unregistered and drove him to Huruma Hospital where he was admitted. At 19.30 hrs while on his way back home at Mlembela basin, which is the border between Mashati and Usseri division, he saw a motorcycle with its full lights on entering the main road he was passing through. The motorcycle, blue in colour ( exhibit P2), which had three people on board, overtook him in a very high speed and on arriving just near Mateweta Primary School it stopped. The three people on the motorcycle alighted and blocked the road. One of them had a "panga". Having blocked the road, PWl sensing the danger, tried to reverse his motorcycle but before he completed the turn, the bandit who was holding the "panga" approached him and raised his "panga" in an attempt to cut him. Out of fear, PWl jumped from the motorcycle and started running to the direction where he was coming from and at the same time raised an alarm. The bandits chased him, one of them shouting, "kill him". He heard a gunshot but he continued shouting for help. He then heard all the two motorcycles taking off to Tarakea road. PWl pursued the bandits to the direction of Tarakea road. At the material time PW2, Venance Albogast and PW4, Fredrick William Kaleroo were at Udoro Market bar drinking local brew commonly known as "mbege". They heard three gunshots and from 2 that direction there was a person shouting "Majambazi hao" Having heard the alarm, PW2, and PW4 responded by picking whatever item which could assist in curbing the bandits and then went to the direction of Tarakea road. They made a road block. It did not take long, they saw two motorcycles coming in a high speed toward their direction. PW2 threw a chair he was holding and it trapped the motorcycle of the appellant and overturned. The other motorcycle driven by the companion of the appellant rammed thereon and also overturned. The two bandits who were on that motorcycle took to their heels, leaving the appellant seriously injured. The appellant who had fallen on the ground was arrested and the two motorcycles were seized. On arrival, PWl identified one of the motorcycles make Tuktuk, white in colour ( exhibit P3) as the one which was robbed from him by the bandits. PW4 informed Michael Lebabu Tarimo (PWS) the Village Executive Officer of Kirongo Chini village about the incident who also alerted the Police. The appellant was taken to police station where PW3 took his cautioned statement (exhibit P4). In his defence the appellant denied the allegation. He claimed that he hired a motorcycle to take him home from Huruma hospital where his sick father was admitted. On their way just before reaching 3 Udoro village they were involved in an accident by colliding with another motorcycle. He fell unconscious as he was seriously injured. When he gained consciousness, he found himself locked in at Tarakea Police station. Subsequently, he was charged with the offence in which he was convicted and sentenced. In essence that is his defence. After hearing both sides, the trial court believed that the prosecution case was proved beyond reasonable doubt and convicted the appellant as charged. He unsuccessfully appealed to the High Court. The appellant still believes in his innocence hence this second appeal. The appellant filed a memorandum of appeal containing ten (10) grounds, namely:- 1. The 1st appellate court erred in law when abdicated it's duty of subjecting the entire evidence to an objective scrutiny and as result it ended up in sustaining the appellant's conviction and sentence relying on an evidence that was not the basis of conviction and above all the evidence of incredible witnesses. 4 2. That, the first appellate Judge erred in law when upholded (sic) the appellant's conviction basing on unborne (sic) evidence/ that it was the appellant who was driving the alleged stolen motorcycle/ the evidence which the trial magistrate had not used to base his conviction. 3. That, the first appellate Judge grossly erred in law when she shifted a burden of proof to the appellant for not calling the person who he had hired to ride him with a motorcycle. 4. , That, the first appellate court erred in law and fact for failing to reveal that no anywhere in the record which shows that PWl identify (sic) the exhibit P2 and P3 which was conferred by public before the court. 5. That the first appellate court erred in law and fact for sustaining the conviction and sentence of the trial court against the appellant without considering that the condition at the scene before PWl was not conducive for proper identification. 5 6. That, the first appellate court erred in law and fact for upheld (sic) the conviction and sentence of the appellant without reveal (sic) that the exhibits P2 and P3 were conferred before the court by public prosecutor who was not qualified legally. 7. That, the first appellate court erred in law and fact for upheld (sic) the conviction and sentence of the trial court without reveal (sic) that PWl before the court had no any document as purchase receipt; Registration card or anything to support the prosecution~ case 8. That the learned trial magistrate and the first appellate court erred in law and fact for failing to consider the defence case of the appellant 9. That, the first appellate Judge grossly erred in law by upholding the appellant~ conviction, on a case that who~ ownership (sic) of the alleged stolen motorcycle was not proved before the trial court and that PW1 had not identified it in court 6 • 10. That, the learned trial magistrate and the first appellate judge grossly erred in law and fact when convicted and upholded (sic} the appellant's conviction on a case that was not proved to the required standard of the law. At the hearing of the appeal, the appellant who appeared in person, unrepresented dropped ground 5 and 8 of the appeal. He combined the rest and argued them together. He argued that the first appellate court discounted the caution statement as indicated at page 64 of the record but went on convicting him relying on the evidence of PWl and PW2 which was not accorded weight by the trial court. -He pointed out that Pwl and PW2 were not credible witnesses to rely upon, they stated that he was arrested at Udoro village while in actual fact he was arrested at Kirongo Chini, Udoro. He further submitted that PW1 failed to identify exhibit P3, the motorcycle before the trial court and that he did not however prove that he was the owner of the motorcycle. He referred this Court to the decisions in Abdi Julius @ Mollel Nyangusi and Another v. R., Criminal Appeal No. 107 of 2009 and that of Omari Iddi Mbezi & three others v. R., Criminal Appeal No. 227 of 2009 (both unreported) in which the Court insisted that exhibits must be positively identified by the owner. 7