20161124 TZHC Dar es Salaam2

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CRIMINAL APPEAL NO 121 OF 2013 MANYENGO MANGWENA ................................ .. APPLICANT VERSUS REP'U BLIC ............................................. .......... RESPONDENT - - -- - - - lllDGEMENf MKASIMONGWA,l Before the Resident Magistrates Court of Dar es Salaam at Kisutu MANYENGO 5/0 MANGWENA @ MLUGALUGA with others stood charged with: 1. Conspiracy to commit an offence C/5 384 of the Penal code [Cap. 16 R.E 2002] (2 nd count) 2. Armed Robbery C/5 287 A of the Penal code[Cap. 16 R.E 2002] (third count) 3. Armed Robbery C/5 287A of the Penal Code [Cap. 16 R.E 2002] (fourth count). 4. Armed Robbery C/5 287A of the Penal code [Cap. 16 R.E 2002] (fifth count). 5. Armed Robbery C/5 287A of the Penal Code [Cap. 16 R.E 2002] (Sixth count). 1 I ' 6. Armed Robbery C/5 287A of the penal code (Cap. 16. R.E 2002) (seventh count). 7. Armed Robbery C/5 287A of the Penal Code [Cap. 16 R.E. 2002] (eighth Count). Out of the counts, he was found guilty and convicted of the offences charged under the 2nd , 5th , ih and 8th counts hence sentenced to 3yrs, 30yrs, 30yrs and 30yr imprisonment, respectively. He is aggrieved by both conviction and sentences imposed thus appeals to this court against both of them. MANYENGO MANGWENA MLUGALUGA _-,- (appellant) has seven grounds of appeal upon which he prays the court to entirely allow the appeal. At the hearing of the appeal the appellant appeared in person whereas the Respondent Republic was represented by Miss Paulina Fungameza, the Leaned State Attorney. When he was invited to argue the appeal the appellant contended that in the trial court he was standing charged with other two accused persons. He was first brought in court on 17/11/2009 with ALEX MASATU. They were asked to plead to the charges in which proceedings he was referred to as the 1st accused and ALEX MASATU as the 2nd accused. However in the judgment of the court and in passing the sentence he has been referred to as the second accused person. As to the adduced prosecution's · evidence, the appellant contended that the same did not prove the charges against him to the standard that is beyond reasonable doubt. On being cross examined PWl one D 9983 D/Cpl. Erasto told the court that he (appellant) did not 2 commit the offences and PW2 one E. 7063 D/Cpl. Edward testified to the effect that he seized a firearm in the house of LATIFA DUNIA which was kept there by ALEX MASATU (the 2nd accused person). PW2 did not tell the court as to how he (the appellant) had involved himself in the scenario. SIMON KASULIMBAI MCHOMBA (PW3), the director of DOGS HARDWARES SECURITY SERVICES LTD, told the court in evidence that he is the lawful owner of the gun in question. He gave it to JOSEPH MCHICHE, his watchman for official uses. PW3 identified the gun in court to be his property. The appellant also contended that the testimony given by PW4 one D. 8841 D/Cpl. Felix was to the effect that he interrogated the 2nd accused and upon his confession he recorded his cautioned statement. Again PWS an E. 9903 D/Sgt. Lameck did interrogate LATIFA DUNIA SIMBA and recorded her cautioned statement. TULIBAKE FAUDON MKONDYA (PWS) had nothing in evidence implicating the appellant. PW6, LEONARD SANTUS UPUNDA stated in evidence that he knows the thugs by their faces and not names as he saw them at the scene of crime. Among them were the 1st and 2nd accused persons. The Appellant added that PW7 one FAUDON MKONDYA gave speculative evidence that the 2nd accused was the one who pointed him with the gun. He, however, said that he does not know the appellant though he (the appellant) was not a stranger to him. The Appellant submitted that in this matter there was no evidence that implicated him. As such the conviction was not properly entered. It is only from the record that was twisted which shows he was guilty. He prays the court that it quashes 3 I • the conviction and set aside the imposed sentence and he be ordered to be released from jail. On the other hand Miss Fungameza learned State Attorney supported the appeal. She said this case emanates from two different criminal events happened at different places with different victims and different offences. It was not proper therefore for the two events to be joined in one case. The learned State Attorney stated that the first event took place on 12/5/2005 at 11.00 pm whereby the watchman at DIRA -- INVESTMENT HARDWARE was attacked and rob.bed a firearm by the people whom he did not know. The gun was eventually met in the house of the 4th, 1st and 3rd , accused persons that is LATIFA DUNIA, FESTO SAYANSI and ALEX MASATU, respectively. These were arrested from the informer's report to the police that FESTO SAYANSI unlawfully possessed a firearm. That FESTO SAYANSI mentioned the 3rd accused one ALEX MASATU. Upon being arrested the 3rd accused person led police officers to the home of 4th accused one LATIFA DUNIA where the firearm was seized. The same was identified to be that which was robbed from the DIRA INVESTMENT HADRWARE's watchman. In respect of that event there were three offences prepared. The first offence is Being in Unlawful Possession of a Firearm in which the suspects were the 1st, 3rd and 4th accused persons. The second is Conspiracy to Commit an Offence and the third is Armed Robbery. The charges for the second and third offences were leveled against the 1st, 2nd (Appellant) and 3rd accused persons. 4 As to the armed robbery charges, Miss Fungameza contended that the evidence brought before the trial court-by PW6 - PW9 shows that- while were at a certain shop some drinking and some being served otherwise, they were attacked by several armed young men who, after threatening them they robbed various respective properties from the witnesses. The place had a bright light which enabled them clearly see. The witnesses knew the thugs as they were their street young men. According to the learned State Attorney, it is not shown by the evidence adduced as to how the appellant is connected to the offence. There was an identification parade conducted and apart from saying that they knew the thugs even prior to the time of the alleged robbery, all three witnesses did not identify the accused persons in the parade. Miss Fungameza went on submitting that the manner the case was instituted that is joining two cases into one charge it brought about confusion even in their positions as accused persons. This resulted in even confusing the accused persons in preparation of their defence. Similarly the silence as to how the accused persons were arrested in connection with the armed robbery that took place at the shop renders it doubtful of their involvement in the commission of the crime. Thirdly the descriptions given, in respect of the suspects, by the witnesses who but failed to identify those suspects in an identification parade leaves doubt on the prosecution cases. Miss Fungameza remained of a firm view that it was not proper when the trial court convicted the appellant on account of the adduced evidence. 5 , ' . That is all what the parties did submit in this matter. I have-gone through the charge sheet filed in the lower court by the learned State Attorney one Mr. T. D Mutakyawa. As stated by Miss Fungameza, there is no connection between the first count and the other counts. The first count constituted an in independent case and it was therefore not proper to have it charged together with other counts in the same charge sheet. This is because the crime alleged to have been committed in respect of the first count was committed on different date and place from those in the 2nd - 8th counts. Furthermore the two offences are not founded on the same facts. The procedure adopted by the prosecution 1- in this matter faulted the requirement of Section 133 (1) of the Criminal Procedure Act (Cap. 20 R. E 2002) which reads as follows: ''Any offences may be charged together in the same charge or information if the offences are founded on the same facts or if they form or are a part of series of offences of the same or a similar character" As to the Armed Robbery charges, the charge sheet filed do not state the exact time the alleged offence was committed. However going by the adduced evidence, it is said the same was committed during night time. As again stated by the leaned Stated Attorney it can be conveyed from the testimonies of PW6 - PW9 that the alleged robbery took place at the place shone by the brought light and that the witnesses were knowing the thugs even prior to the time of the alleged crime. The PW8 and PW9 described the thugs stating that two of them were thin and tall and the other was short. Despite of such descriptions the witnesses did not identify any of the accused persons at the scene 6 ' of crime. This is confirmed by one. D. 9983 D/CPL Erasto who is ''I conducted identification parade but the witness failed to identify_the_accused. II As the accused persons were not clearly identified to be the ones who were at the scene of crimes committing the offence, the prosecution evidence did not meet the standard of proof in criminal cases which is "beyond reasonable doubt". As such the trial court erred when it found the conviction. I am inclined therefore to quash the conviction and set aside tl:le sentence imposed. This_appeal is__ allowed on its entirety. The appell_ant should be released from jail if-he is nottherein for other-lawful causes. Dated Dar es Salaam this 24th of November, 2016 r- E. J. Mkasimon wa JUDGE 24/11/2016 7