20160530 TZHC Dar es Salaam2

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM - CRIMINAL APPEAL NO. 20 OF 2015 [Originating from District Court of Kilosa Criminal Case No. 82 of 2014] ABED S/O RAMADHANI .@KIAME . . . . . . . APPELLANT VERSUS THE REPUBLIC . . . . . . . . . . . . . . . . . . . RESPONDENT Dateoflastorder - 25/4/2016 Date of Judgment - 30/5/2016 JUDGMENT Kitusi, J.: Abeid Ramadhani @ Kiame was charged and convicted of Armed Robbery before Kilosa District Court. He was sentenced to 30 years imprisonment. It was alleged that Abeid Ramadhani@ Kiame jointly with another person who was acquitted, on 8/4/2014 at about 11.00 hours at Magomeni area, Madoto Village in Morogoro Region, the said two persons stole from Hadija Seif one bicycle, a mobile phone make Itel with line No.0656 - 968907 which had a balance of Shs.2,000,000/= in Tigo Pesa account, and a handbag, all valued at Tshs.2, 105,000 / =. It was further alleged that they used a bush knifeto Hadija Seif immediately before or after in order to obtain those properties. Page 1 of 11 The evidence which led to the conviction and sentence of Abeid Ramadhani@ Kiame hereinafter the appellant, is as follows; On 8/4/2014 at around 11.00 hours, Hadija Seif (PWl) was riding her bicycle from Kimamba Village to her residence at Madoto Village. When she reached Magomeni area she saw the appellant who made an indication that he was crossing the road. This made PWt reduce her speed but it turned out that the appellant had just wanted her to make that mistake. This is because he threw to her a panga he had been holding and jumped onto her. It seems from the proceedings that the appellant manhandled PWl till she went unconscious. Before she came by she saw the appellant grab her mobile phone which had a balance of Shs.2,036,000/= in the mobile money account. The manhandlihg happened twice because; when she first gained consciousness and tried to rise, the appellant went for her again. When she came by for the second time, PWl found herself surrounded·by people who had turned up to help. The people who turned up to help include Even Dugo (PW2) who happens to be the hamlet Chairman of Mkungoni at Madoto village. He found PWl crying and she told him that Kiame@ Abeid Ramadhani had almost killed her. PW2 said he knew the appellant. He took PW 1 to his residence and gave her Panadol before one John Amilate took her to hospital. Page 2 of 11 --~-- -----T-he \Ter_sion _of_Y_usuf_Ny~mg~ti_(P\\T~) is that he found the appellant assaulting PWl and he failed to give PWl assistance because the appellant threatened him with the panga he was holding. However PW3 returned to the scene after being reinforced by two more people whereupon the appellant made off. PW3 recalls to have heard the appellant force PWl into disclosing to him the pin number to her mobile phone. On his part Abdallah Issa (PW4) was told by the group of people that the appellant had robbed PWl. Just then he saw the appellant riding the stolen bicycle into a nearby bush. When he raised alarms and wanted to go after him, PW 4 was warned by the group to stay away from the appellant who might kill him. PC Emmanuel (PWS) is the policeman who investigated the case. He interrogated PWl who told him that the second accused Sostenes Aliabi was the only man who knew the password to her mo bile money account. This was after it had been learnt from the service providers of Tigo that Shs.35,000 / = the money which had been in the account had already been withdrawn. In defence the appellant denied to have committed the alleged offence. He stated that he was arrested on 13/5/2014 and later forced to sign a cautioned statement. In convicting the appellant, the learned trial Resident Magistrate relied on the evidence of PW 1 who was familiar with the Page 3 of 11 i , appellant and that~ she~ immediately- nam.ed-him_to~th__s: ~people who -·- - - -- - - - turned up to give her assistance. The trial magistrate found - support of PW l's story in the evidence of PW2, PW2 and PW4 who said that she was the one who -disclosed the identity of the appellant as the perpetrator of the robbery. The appellant feels aggrieved and a victim of robbery of justice. He has demonstrated his grievance by a Memorandum of Appeal --_.consisting of ten ( 10) grounds. I will combine some of the grounds and rearrange them so that it can be easy to maint~in some chronology in discussing them. Therefore I will combine the first and second grounds. I will also combine the third and 7 th & 9 th grounds. Next I will combine grounds 4 th and 5 th . So that now the grounds of appeal will be like this:- 1) The trial court erred in entering conviction on the basis of the testimony of PWl, PW2, PW3, PW4 who are uncredible witnesses and others testified on hearsay. 2) The trial court erred in convicting the appellant while no exhibits to prove recent possession were tendered and the alleged weapon was not tendered. 3) The trial court erred in relying on the cautioned statement recorded in violation of the law and without conducting an 1nqu1ry 4) The trial court wrongly admitted the PF3 without calling the medical doctor who completed it. Page 4 of 11 5) The trial court erred in not considefihg the-clef~nce-case.__~ The appellant filed a· supplementary Petition of Appeal consisting of eight (8) grounds. Without reproducing them, the grounds may be summarized as follows; 6) The trial court erred by proceeding without resolving the contradiction as to how many people attacked PW 1. 7) That the appellant was not identified while on the dock. 8) That the trial court did not resolve the discrepancies 1n the evidence of PW4 who said he saw the appellant riding the stolen bicycle and that of PWS who said he found the bicycle at the scene of crime. 9) That the trial court erred in not making an adverse inference in the evidence of PW2 a village chairman who did not execute an arrest on him until one month later while he said he knew the appellant and they lived in the same village. 1 O)The appellant's alibi was not considered. At the hearing of this appeal the appellant appeared in person whereas the respondent Republic was represented by Mr Frank Tawale learned State Attorney. The learned State Attorney supported the conviction and sentence, and went on to argue the appeal by addressing the grounds one after the other. To begin with the first and second grounds which relate to the reliability of PWl 's testimony, the learned State Attorney submitted Page 5 of 11 that PWl knew the appell~--(before~afid-the-r0bbecy~took_pJace in - - -- -- - broad daylight atl 1.00 a.m. Thus the fact that she went unconscious is not relevant. As regards the contradiction in the testimonies of PW 1, PW2, PW3 and PW4, it is submitted that the same was only in respect to the charge of conspiracy. -Regarding the fourth and fifth grounds which attack the trial court for not conducting an inquiry,- the learned State Attorney supported this ground and cited the case of Twaha Ally V. Republic, Criminal Appeal No. 78/2004 (unreported). he also supported the complaint that a medical doctor was not called to tender the PF3 in terms of Section 240 (3) of Criminal Procedure Act. It is however submitted that even if the PF3 were expunged the remaining evidence would be sufficient to ground a conviction on the appellant. Mr Tawale submitted in reference to grounds 7 and 8 that it was not necessary to produce the stolen items. He stated that the bicycle was found abandoned by the appellant. As for the allegation that the trial court did not consider the defence case, Mr Tawale submitted that the trial Court considered it and found the same to be fabricated. Page 6 of 11 As for the defence of alibi~ - the-~ learned - -State- -Attor:n~y - submitted that the appellant failed to prove it. As earlier shown, in convicting the appellant, the learned trial Resident Magistrate made a finding that there was no possibility of mistakes in identifying him. Without ado, I am in agreement with the learned trial Resident Magistrate's finding considering the fact that the alleged incident took place in broad daylight for a considerably long time and that the victim knew the culprit before. I think however that there is more to the case than just the identity of the appellant. I consider it of significance to prove that something was stolen from PW 1 and that the culprit was armed in the course of stealing. Going by the charge, the following properties were stolen from PW 1; (i) A bicycle (ii) A mobile phone make Itel which had a balance of shillings two million (2,000,000 / =) in it (iii) A handbag (iv) Cash shs.35,000/= It is a settled law that in a charge of robbery with violence or Armed Robbery, the alleged violence must be aimed at perpetrating the alleged theft. This means that if no theft is proved, then even if it is proved that the appellant assaulted PWl, there will be no proof Page 7 of 11 of Armed Robbery. Robert-Donald V~R. Criminal-ApJ::>eal-No. 328_0{ 2013, Court of Appeal, Mwanza, (unreported). Let me subject the prosecution evidence to scrutiny. According to the victim (PWl) the appellant stole from her what she had been carrying. The relevant part of her testimony goes like this; "I had exercise book and a phone (cellular) and money Tshs.35,000/=. In the line of the phone - there were 2,036, 000/ =. The 1st accused took them." Two aspects of interest are to be noted from PWl 's testimony. First there is no mention of the bicycle being stolen. Secondly, the appellant having stolen the items from PW 1, he still chased her and when he caught up with her he assaulted her again immersing her into water. Here curiosity gets the better of me and I wonder what was this alleged assault aimed at. The evidence of PW2 is of no assistance in determining the question of theft. He just found PWl crying and gave her first aid. The evidence of PW3 is that he found the appellant assaulting PWl. He could not render assistance to PWl alone, so he recruited two other people. When the three men approached the scene, the appellant fled. PW3's version is that at the time of assaulting PWl, Page 8 of 11 the appellant was heard d~manding her~to disclose the~pin numl:2_~r of her phone. This piece of evidence raises eyebrows in view of the evidence of PW5 the police investigator. PW5 testified that he interrogated the appellant who told him that it is the then second accused Sostenes Mbwilo who was aware that the phone had money and he planned the stealing. According to what PWl told PWS, the said Sostenes Mbwilo knew the phone's password. If the prosecution wants PW5 to be believed, then why would the ,_ -- appellant _wq.ste __tiU?-e to force PWl to disclose the password which his associate knew? Then there is the evidence by PWS regarding the amount of money that was stolen from the phone. According to PWS, the money that had been cashed from the phone wasTsh.35,000/=. This is coincidently the same amount as the one PWl had in cash. There are pieces of untied loose ends here. The amount in the charge sheet is Tshs.2,000,000/=. The amount stated by PWl in her testimony is Tshs.2,036,000/=, and yet PWS's testimony is that the money stolen from the phone was Tshs.35,000/=. Variance between the charge and the evidence has its consequences adverse to the prosecution. [Adam Rajabu V. Republic, Criminal Appeal No. 369 of 2014, Court of Appeal at Dodoma (unreported).] Lastly there is the testimony of PW4. This I will scrutinize in comparison with that of PW3 and PWS. PW4 saw a lot of people (I suppose this means there were many people) and joined them out of Page 9 of 11 curiosity. He was info~med-01 what ·the- appellant-had done_to PW!. Just then as he was leaving, he saw the appellant with the stolen bicycle. These many people advised PW4 to stay away from the appellant as he might kill him. There is a ring of exaggeration which I find quite disturbing. If earlier three people including PW3 had threatened the appellant into fleeing, what danger did he pose to the "many people' who though it better to keep distance from him? Which bicycle did PW4 see the appellant with? There is --nothing _in PW3 's testimony to suggest that while fleeing, the appellant took PW l's bicycle with him. In fact acc0rding to PWS, _ the bicycle was found at the scene. Finally there is serious contradiction as to how much money (if any) was stolen. Such doubts or contradictions are resolved in favour of the appellant. There is no proof that there was theft of a bicycle. Therefore I find merit in the first and eighth grounds of appeal which are about the credibility of PWl, PW2, PW3 and PWS and the discrepancies in their testimonies. I do not agree with the learned State Attorney that the discrepancies were only related to the charge of conspiracy. As these two points are sufficient to dispose this appeal, I need not go into the rest of the grounds of appeal. This appeal is accordingly allowed because there is no proof of theft. The judgment of the lower court is quashed and the sentence is set aside. The appellant is to be released from jail immediately if not Page 10 of 11 \ lawfully held for some other cause. JUDGE 30/5/2016 ----30_[5}~9_!6 Coram: H~~:-iGtusi;-J~- ---- -- - -- -- -------- ________ _ For the Appellant: Present in person For the Republic: Neema Mbwana, SA. C.C.: Lakki Ms Mbwana: The case is for judgment. We are ready. Court: JUDGE _,,. \.~ \'.ii:· \-.< 30/5/2016 Page 11 of 11 11