20160229 TZHC Dar es Salaam2

- ...... IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 201 OF 2015 (From Kinondoni District Criminal Case No. 262 of 2008) JAMES SERENGA NGAGAWA ....................................... APPELLANT VERSUS THE REPUBLIC ........................................................ RESPONDENT Date of Last Order: 18/02/2016 Date of Judgment: 29/02/2016 JUDGMENT FELESHI, J. The above named appellant was charged with two counts of armed robbery contrary to section 287A of the Penal Code, [CAP. 16 R.E, 2002] as amended by Act No. 4 of 2004. It was alleged for the 1st count that, on 27/02/2008 at about 22:00hrs at Ndugumbi Mpakani area within Kinondoni District in Dar es Salaam region he stole Tshs. 150,000/= and two cell phones make Nokia worth Tshs. 100,000/= valued at Tshs. 250,000/= the .... ,....- properties of Ally Longo and that immediately before such stealing, he threatened him by firing two bullets of a pistol on air in order to obtain the stolen properties. It was further alleged for the 2nd count that, on the same date and area, he stole one cell phone make Nokia 1600 worth Tshs. 90,000/= the property of Mariam Ally and that immediately before such stealing, threatened her by firing two bullets of pistol on air in order to obtain the Page 1 of 7 ---- -'"'"1 ·-•• said stolen property. Upon his plea of not guilty to the charged offence he was subsequently tried, convicted and sentenced to thirty years imprisonment and six strokes of the cane. Aggrieved with both the conviction and sentence, he has preferred this appeal based on a total of twenty (20) grounds. To this court, the grounds of appeal mainly attacks trial court's overreliance on the evidence that did not prove both the appellant's identification as well as the ingredients of the charged· offence in both counts. The hearing of the appeal was conducted orally whereas the appellant appeared in person while the Respondent/Republic was represented by Ms. Debora Mcharo, the learned State Attorney. Addressing the grounds of appeal, the appellant argued the grounds of appeal to form an integral part of his submission urging this Court to allow his appeal. On her part, in support of the appeal, the learned State Attorney submitted in respect of the issue of identification that there are contradictions in the evidence of PWl as he did not state whether he .... identified the appellant as the person who committed the offence as it .....- appears in the evidence of PW2. Besides, the learned State Attorney argued that, the fact that PWl and PW2 testified to have been familiar with the appellant is not enough as there was no enough light at the scene of the crime. PW2 stated that, the kerosene lamp was used but nothing was said regarding the intensity of the light generated by that lamp. He cited a Court of Appeal decision in the Page 2 of 7 --, , -. -~- · case of Chacha Mwita & 2 Others vs. the Republic, Criminal Appeal No. 302/2013 (Unreported), (Mwanza Registry) where the Court recited the case of Waziri Amani vs. Republic [1980] T.L.R 250. The State Attorney was of the view that, the light was not favourable for unmistaken identification adding that there were many people at the scene. Besides, Ms Mcharo added that, PW6 testified that she did not identify the appellant during his arrest but he identified him at the Police Station. Such doubts, she said, should be resolved in favour of the appellant. Regarding the ingredients of the offence, Ms Mcharo submitted that, the ingredients of the offence of armed robbery such as the use of fire arm and the act of stealing properties were not proved. Besides, the robbed properties were not tendered in Court as exhibits. There are also doubts from the evidence of PW2 whether the appellant was really armed. Moreover, she argued, if the appellant was armed, why didn't he use the arm against those who arrested him? He added that, it is doubtful that the police who went to the scene did not pick the firm arm, rather, some other - - people took it to the Police. She added that, PW7 testified that the pistol was his and he was robbed by the appellant. Notably, PW7 did not adduce evidence to prove ownership over the pistol and that it was the appellant who robbed it from his possession in the fateful incident. She likewise submitted that, the appellant described that he was a friend to PWl and that he visited PWl on that material date. Instead, he was arrested alone from many people who were there. The testimony of Page 3 of 7 PW3 raises doubts that he was not present at the scene of crime suggesting that the investigator did not visit the scene of crime, rather, just based on hearsay evidence which is incredible in law. She cited the case of Dickson Malekera vs. the Republic, Criminal Appeal No. 13/2010 (Unreported), (Mwanza Registry) where the Court of Appeal of Tanzania underscored that it is the duty of the trial Court to resolve the material contradictions and if it fails, then, an appellate Court is vested with such duty. It is from the above that Ms Mcharo was in support of the appeal with prayer for the appeal to be allowed. The main issue before me is whether the offence(s) charged against the appellant was proved beyond reasonable doubt. Having considered the Court record, grounds of appeal and the submission by the learned State Attorney in unison, the following are the deliberations of this Court in disposal. At the outset, this Court is indebted to appreciate the candid submission by the learned State Attorney for it has addressed the pitfalls of the prosecution's case. Now, in compliment to what has been submitted by ....... the learned State Attorney, it is on record that, PW1 did not at all account as to how he managed to identify the appellant. Moreover, though PW2 pointed out that there was a kerosene lamp with "enough light" to identify the culprit, no clarity was accorded as to the distance between the identifying witness and the bandit, the distance between the identifying witness and the kerosene lamp as well as between the culprit and the kerosene lamp. Likewise, no evidence was unveiled on Page 4 of 7 ·· record as to the light intensity for the purposes of wiping out the mistaken identity. All these lowered the reliability of the evidence by the prosecution side. Besides, the testimony by PW6 who is alleged to have arrested the appellant at the scene of the crime testified that he did not see the appellant at the scene of crime and that he just saw him at the Police Station. This raises serious concerns in the matter under scrutiny for instance, if PW6 did not see the appellant at the scene of crime, how did he manage to see the dropped item from the appellant referred as pistol? Certainty as to whether the appellant was arrested in connection with the incident without break of the chain of incident of armed robbery is crucially wanting thus called upon for scrutiny. For instance, the testimony by PW6 at page 30 of the trial Court proceedings read:- "On 27 /2/08, on that date I left home then went to a place to heart (sic), while hunting I was called by a friend who told me that my tenants were fighting, the person who called me is called sandy nyama. I got out, then people were saying "humu ndani, humu ndani kibabu" before I got in, I met a person I don't know, he said "Ali kusheri" he was saying bye to my tenant, then that person passed over me . ......... ". - From the above, the evidence portrays that there was a crowd of people at the scene of crime during the time of arrest. Moreover, the testimony of PW6 is clear that though some voices suggested that the culprit was inside,_ PWp :~estifies to have met the accused on his way before • C ~ ~ •, ,• he got inside the hous,e where the accused was alleged to be in. 0 . ' ,, . :) .~ , ~ - . , . .... : Under th~ •circbmstances, consideration of such piece of evidence with caution was so' pertinent in proof that none other than the appellant Page 5 of 7 ·· orchestrated the armed robbery. This tallies to what the Court of Appeal of . - - - - Tanzania observed -in the case of Mereji Logori v·s~ the· Re-pu~lic, Criminal Appeal No. 273/2011 (Arusha Registry) (unreported) that:- . ~'Applying the principles we laid down in Waziri Amani vs. Republic (supra) to the present appeal, we do not think all possibilities of-· ---- mistaken identity were eliminated with respect to the appellant. Possibility that someone else other than the appellant was responsible for the offence that took place in a busy street cannot be ruled out. Such doubts should operate in favour of the appellant". Notably, though PW7 Celestine Nyagawa, the appellant's uncle (son to PW7's brother) testified to have lived with the appellant for about a month, he stated that, when the gun was stolen from his house, the tf appellant was by then staying in Makambako. Such piece of evidence negates the link of the appellant to the incident of stealing the fire arm belonging to PW7 from PW7's house prior to the incident. Being the case, the evidence on record raises reasonable doubts short of harnessing the appellant with the charged offence of armed robbery. In the premises, I find the appeal meritorious· and is hereby allowed. The conviction entered by the trial Court is quashed and the sentence is set aside. I further make order for the appellant to be released from prison - forthwith unless otherwise lawfully held in another lawful course. . . • •' • . ___ ..... . . : -· ... -- . ·. ... - Page 6 of 7 ,;;' ,.;,.,_ - ,:p -·• - ~.._-. ... ·-.--. ..i,,. ~;;.,- ...... ...:...~ - -i, Judgment delivered in presence of the Appellant in person and Aveline Ompocki, the learned State Attorney-for the Republic,-Responaent-:- - - --- Right bf Appeal is explained. PUTY REGISTRAR 29/02/2016 Page 7 of 7