20160531 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM {APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 150 OF 2015 (From the Ilala District Court Criminal Case No. 265 of 2008) JAPHET JOHN MATAVA ...................................... APPELLANT VERSUS DIRECTOR OF PUBLIC· PROSECUTIONS ............. RESPONDENT Date of Last Order: 05/04/2016 Date of Judgment: 31/05/2016 JUDGMENT FELESHI, J.: In the District Court of Ilala, the appellant and one Ally Shabani Kisawike were jointly and together charged with the offence of Armed robbery contrary to section 287A of the Penal Code, [CAP. 16 R.E, 2002] where it was alleged that, on 21/12/2007 at about 21: 15hrs at Ukonga within Ilala District in Dar es Salaam region, they stole one motor vehicle with registration number STJ 3009 Toyota Land Cruiser Hard Top, Pick Up valued at Tshs. 60,000,000/= the property of the Ministry of Health and Social Welfare and that immediately before such stealing, they pointed a pistol to one Salum Mbwana, the driver of such motor vehicle to threaten him in order to obtain the said motor vehicle. The accused persons pleaded not guilty to the charged offence and upon trial the first accused (the appellant) was convicted and sentenced to thirty (30) years impri?onment whereas his co-accused was acquitted. Page 1 of 8 Aggrieved, the appellant has preferred this appeal on four (4) grounds that:- 1. The trial Magistrate grossly misdirected herself in failing to make a finding that there was no sufficient evidence to prove the actual act of robbery of motor vehicle with registration number STJ 3009. 2. The trial Magistrate erred both in law and in fact in convicting the appellant basing on identification amid procedural insufficiencies and irregularities over the same. 3. The trial Magistrate erred both in law and in fact in not acquitting the appellant relying on the testimony of the prosecution's side own witness PW2 which casts doubts on the manner of the handing of the appellant at the Police Station and the resulting charge. 4 .. The_ trial Magistrate erred both. in law_and_ in fact Jn ..according-much weight to the prosecution side and by ignoring the defence case, hence arriving at a wrong conclusion . . Hearing of the appeal was conducted orally whereas the appellant engaged the services of by Mr. Taisamo Godfrey learned advocate while the OPP/Respondent was represented by Ms. Paulina Fungameza, learned State Attorney. Addressing the 1st ground of appeal, Mr. Taisamo submitted that, before addressing as to who committed the offence, one has in the first place to establish whether the charged offence occurred .. He argued that, according to PWl (the driver), he packed the motor vehicle at CCM Mongolandege where he handed it over to a watchman upon signing the packing register book. PWl added that, after packing the motor vehicle, he was hijacked by unknown people in a car who later abandoned him in unknown place. Notably, PWl did not testify as to how the motor vehicle was stolen adding that, there is nothing on record establishing how the said motor Page 2 of 8 vehicle was stolen whilst packed and the watchmen were not summoned to testify. Moreover, the Packing Register Book was not tendered in evidence. For that matter, Mr.Taisamo argued that, there is no evidence as to the stealing of the motor vehicle and by whom. Regarding the 2nd ground, the appellant's counsel submitted that, though the incident occurred around 21:lShrs - 22:00hrs, nothing is on record as to how PWl managed to identify the assailants adding that, as the conditions favouring unmistaken identification at the scene were not stated, the identification made at the Identification Parade cannot stand. In respect of the 3rd ground, Mr. Taisamo submitted that, PW2 testified that he was incarcerated on a different case whereas while in Buguruni Police remand together with the police, he witnessed a police officer soliciting Tshs. 100,000/= from the appellant that he could be freed. Such conducts he said, raises doubts as to the justification of the appellant's involvement in the charges. As to the 4th ground, the appellant's advocate submitted that, the trial Court did not consider the shortfalls obtained in the prosecution case namely, one, the number of the motor vehicle alleged to have been stolen as the Judgment refers to STJ 3009 whereas the record refers to STK; and two, there are contradictions based on the arresting date and the date when the appellant together with the file were handed over to PW4 as PW4 testified to have been given the file on 23/12/2008 while the appellant was arrested ten months before, that is, on 15/02/2008. It is from the above the appellant's counsel urged this Court to allow the appeal. Page 3 of 8 Supporting the appeal, Ms. Fungameza submitted for the 1st ground that, armed robbery must be proved by actus reus but there is no evidence that the said motor vehicle was ever stolen. As to the 2nd ground, she argued that, since 13 people were said to be in the hijackers' car, nothing was availed as to how the appellant was identified within the precepts in the case of Waziri Amani vs. Rep., [1980] T.L.R 250. Regarding the 3rd ground, Ms. Fungameza submitted that, even if PW2 heard the police soliciting money from the appellant that cannot be considered as proof that the solicitation was connected with the charged offence. As to the 4th ground, the learned State Attorney argued that, the trial Court did not accord weight to the defence case adding that, the trial Court admitted the Cautioned Statement tendered by PW4 without conducting an inquiry after the same was objected to, contrary to the decision held by the Court of Appeal of Tanzania in Evarist Marwa vs. Rep., Criminal Appeal 139/2006. Having considered the respective submissions by the appellant's counsel and the learned State Attorney in hand with the Court record, the following are the deliberations of this Court in disposal. As correctly submitted by the learned advocate for the appellant and the learned State Attorney, the evidence on record does not establish whether the referred motor vehicle with registration number STJ 3009 was stolen. It is trite that, in order for the offence of robbery to be established, proof of the ingredients of theft have to be proved beyond reasonable doubt. Page 4 of 8 In other words, no offence of robbery can be said to exist if in the first place, the offence of stealing has not been proved. This is what was underscored by the Court of Appeal of Tanzania in the case of Leonard Zedekia Maratu vs. Rep., Criminal Appeal No. 86 of 2005 (Mwanza Registry) (Unreported) that:- " .......... It occurs to us that robbery is an aggravated form of theft which is accompanied by force. Indeed, without a theft there is no robbery". [Emphasis supplied] Confronted by the same question of defining robbery, the Court of Appeal of Tanzania in Mohamed Haruna @ Mtupeni & Another vs. Rep., Criminal Appeal No. 259 of 2007 (Tabora Registry)(Unreported) stated the following at page 6 of its Judgment:- " ...... To us, this major question begs this subsidiary but equally important question: what is robbery? The answer to this latter question is provided by section 285 of the Penal Code. Section 285 reads thus:- 'Any person who steals anything and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen, or to prevent or overcome resistance to its being stolen or retained is guilty of robbery'. In very simple words, robbery is stealing coupled with the use of actual violence or threats to actual violence to any person or property." [Emphasis supplied] It follows in summary, armed robbery is stealing coupled with use of actual violence or threats to actual violence to any person or property in hand with the use of an arm in order to obtain or retain such stolen item. And, as held in Mwita Sibora v. Rep [2002] TLR 381 at page 384 armed robbery is differentiated by simple robbery by use of dangerous weapon or Page 5 of 8 instrument, company of one or more persons, or where in the course of committing the robbery, the offender wounds, beats, strikes or uses any other personal violence to any person. Thus, since the Charge Sheet alleges stealing of the motor vehicle with registration number STJ 3009 whose theft has not been established and neither PWl nor anyone furnished evidence to prove the alleged stealing, obviously, there is no way how that allegation of theft and thus armed robbery can in stretch of imagination stand in law. Ever if it were true that the robbers took the motor vehicle switch (keys), that cannot infer a safe conclusion of stealing of the motor vehicle with registration number STJ 3009 in the legal strict sense. In that regard in compliment, the offence of theft hence armed robbery was not proved even on the face of it let alone proof beyond reasonable doubt that could resort us to the proof whether the appellant was among the bandits who while armed, robbed PWl the motor vehicle on the fateful date. Moreover, after PWl parked the said motor vehicle and handed it over to the watchmen at CCM Mongolandege, from that point, its custody shifted from PWl to the said watchmen at CCM Mongolandege and that marks the essence of registering in the register book that PWl handed over the motor vehicle with registration number STJ 3009 to the watchmen in case of anything to the contrary. Failure to parade the watchmen was a blow to the prosecution case for these were crucially key witnesses in this case. For that matter alone, the appeal stands to succeed from that angle. Sincerely, from the above, the evidence on record is so shaky and weak. Page 6 of 8 Further to the above finding, as correctly submitted by Ms. Fungameza, it is clear to me that the appellant's Cautioned Statement which was tendered by PW4 was objected by the appellant during trial. Under such circumstances, the trial Court ought to have conducted an inquiry to ascertain its voluntariness before its admission in Court as Exhibit. It is unfortunate that, following the appellant's objection, the trial Magistrate lightly overruled the objection without conducting the requisite inquiry as prescribed by law before its admission. That renders the said Cautioned Statement incompetent thus incapable of being relied upon and as such, worth to be expunged from the Court record. A similar position was met by the Court of Appeal of Tanzania in the case of Selemani Abdalla & 2 Others vs. Rep., Criminal Appeal No. 384 of 2008. Moreover, as correctly submitted by the appellant's counsel and the learned State Attorney, nothing on record has been availed to establish how PWl managed to identify the appellant at the scene of crime considering that the incident occurred during night hours. That being the case, the identification of an accused in an Identification Parade cannot thus be said to take credence as it is trite that, an Identification Parade is a compliment to a proper identification of an accused at the scene of crime and not an override to the contrary. In a nutshell, from all the above in composite, the conviction entered by the trial Court is hereby quashed and the sentence is set aside. I further Page 7 of 8 . make order for the appellant's immediate released from prison unless otherwise lawfully held in another lawful detention. It is so ordered. Dated at Dar es Salaam~,.", a~, 2016 \.,. ' _,.,,,,,/ .M. FELESHI JUDGE Page 8 of 8