20160623 TZHC Arusha

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ' IN THE DISTRICT REGISTRY I AT ARUSHA CRIMINAL APPEAL NO 20 OF 2016 (Originating from Karatu District Court Crimin~I Case No 47 of 2015) ' ANTONI PASCHAL . ■• ■ ■ ■ ■ ■• ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■• ■• ■• ■ ■■ ••• ■ ,i 11 ■ ■■■■■■■■■ APPELLANT . VERSUS I THE REPUBLIC ........................................ 1 I ••••••••••••• RESPONDENT JUDGMENT 19/05/2016 & 26/05/2016 MWAIMU, J. The appellant Anthon Paschal was charged before the Karatu District Court of the offence of Armed Robbery contrary to section 287A of the Penal Code Cap 16 RE 2002 ~s amended by .section 10 of Act No. 3 of 2011. It has been alleged that on the 20th day. of October, 2014, at about 20:00 hours at Beijing Bar near KDA Street, within Karatu District the appellant did steal cash money Tshs. 190,000/=, one smart phone make ITEL valued at Tshs. 130,000/= from Seve~e Joseph and immediately before stealing he used a machete in order to obtain anq retain the said ' 1 properties. He was convicted and sentenced to thirty (30) years in jail. He was aggrieved and therefore appealed to the Court. His petition contains the following grounds of appeal: 1. That the learned trial magistrate erred in law and in fact in holding that the appellant was arrested on the spot. 2. That the learned trial magistrate erred in law and in fact when she failed to see the variation of between the charge sheet and the evidence regarding the place of the commission of the offence. 3. That the purported cautioned statement of the appellant was illegally admitted by the trial court. 4. That the prosecution failed to prove their case against the appellant beyond reasonable doubt. In his submission, the appellant argued his appeal randomly without following the sequence of the grounds he raised in his petition of appeal. Firstly, he contended that his alleged cautioned statement was wrongly admitted without first conducting trial within trial. Secondly, he claimed that there were contradictions on the time when he was arrested and the locus in quo. He said, while PW! and PW2 testified that the incident took place at 20:00 hours, PW3 said it was about 22:00 hours. Also, he urged, while the charge sheet shows that the purported incident took place at Beijing Bar, the evidence on record refers to Beijing Guest House. With those reasons he prayed to the Court to allow his appeal. The appellant also conveyed that he was arrested with nothing. 2 Mr. Kombe learned State Attorney conceded to the appeal for the reason that the incident took place at night and the record is silent on how the appellant was identified. He referred the Court to the case of Waziri Amani versus Republic 1980 T.L.R 250 which dealt with conditions for identifying a person at night. He joined hands with the appellant in seeking to the Court to allow the appeal. As regards to illegal admission of the cautioned statement I agree with the appellant that it was improperly admitted. At page 9 of the typed copy of the proceedings the appellant's cautioned statement was admitted as exhibit "P2" as a confession. In spite of the fact that the appellant objected to its being tendered as evidence, the trial magistrate did not bother to inquire into the circumstances under which it was obtained. It is a long established principle as held in Mazambi v Republic [1990- 1994] 1 EA 356 (CAT}at page 358 that: •~ trial within a trial has to be conducted whenever an accused person objects to the tendering of any statement he has recorded" Also in Rashidi and another v Republic [1969] 1 EA 138 (CAD} the Court of Appeal held: "(b) (i) the correct procedure when a statement is challenged is for the prosecution to call its witnesses and then for the accused to give evidence or make a statement from the dock and call his witnesses, if any;" 3 Moreover, in Selemani Abdallah and 2 Others versus Republic, Criminal Appeal No 384 of 2008 (CAT DSM) (Unreported) the Court insisted on conduct of an inquiry when an objection is raised on a cautioned statement to be tendered to ascertain its voluntariness before its admission in evidence. From the above authorities it is obvious that the trial magistrate misdirected himself in admitting the cautioned statement without conducting an inquiry on its voluntariness. As such the cautioned statement is expunged from the record. In _ground two the appellant challenged the judgment for failure by the Court to consider the variation of the charge sheet and the evidence on the locus in quo. It is a fact that the charge sheet shows that the incident took place at Beijing Bar. The evidence by PW1, PW2, and PW3 refers the place as Beijing Guest House. For a person who has not visited the place it would be difficult to establish which one of them was the locus in quo. However, the appellant's defence shows that it was at Beijing Bar which is consistent with the particulars in the charge sheet. The difference in names has not prejudiced the appellant. Again, there was difference on time when the offence is alleged to have been committed. As correctly argued by the appellant, PW1 told the trial court that the offence was committed at 20:00 hours. PW2 and PW3 advanced statements that the offence was committed at 22:00 hours a margin or difference of two hours is fundamental to cast doubt on when the offence was committed. 4 Mr. Kombe learned State Attorney conceded the appeal on ground that the environment of identification was not conducive. This could have been the case. However, the evidence lead by the prosecution was to the effect that the appellant was arrested at the scene of the crime. According to PW1 Severine Joel, when the appellant grabbed him by his neck, he raised an alarm which caused some customers who were in the bar to respond and apprehend the appellant. If that is the case, then the question of identification is not sustainable. It would have been a different case if the appellant would have been arrested at a different place and different time. One very crucial ground raised by the appellant is ground four on whether the prosecution proved the case beyond reasonable doubt. The answer is in the negative. The trial court based its decision on the prosecution evidence alone. It did not consider the appellant's defence at all. In his defence, the appellant told the trial court that he went to Beijing Bar and booked a room where he intended to spend the night with his girlfriend who had also a relationship with PW1 Severine Joel. The said Severine promised to teach him a lesson. He went as far as beating him but later he was taken to the police station and charged accordingly. The prosecution did not cross examine the appellant on his testimony. No reason was given for failure by the trial court to consider such evidence. If this evidence is taken into account doubt is created on whether there was any offence of armed robbery committed. The appellant's defence suggests 5 that he did not commit the offence rather he was implicated because of the bad relationship with PW1 who they shared a girlfriend. ! Always burden of proof in criminal cases lies on the prosecution and it is beyond reasonable doubt. Section 112 of the Evidence Act RE 2002 the law stipulates that: "The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by law that the proof of that fact shall lie on any other person. " With the shortfalls indicated above, the prosecution evidence did not reach that standard. I therefore quash the conviction on the offence of armed robbery the appellant faced before the lower court and set aside the thirty years imprisonment sentence. The appellant should: be released from jail unless otherwise withheld for any other lawful cause.i M.P.M. Mwaimu JUDGE 23/06/2016 Judgment delivered on this 23rd day of June, 2016 in presence of both parties. Right of appeal explained. 6