20170529 TZHC Mwanza

.. ··-·. ·---. -- .- . . ~-.,.. ' l ._._f'":•• •' ~ IN THIE HIGH COURT OF -TANZANIA ~\# IN THE DISTRICT !REGISTRY AT MWANZA A?PEU.ATE JURISDICTION· .. HIGH ·couRT CRIMINAL APPIEAL NO. 4:i Of 2014. (Original Criminal Case No. 273 of 2007 of the D~strict Court of Musoma at Musoma) MK.AMA S/0 STARIKO .................. ~ ............ APPELLANT VERSUS THIE RIEPUBlIC ....... ; ................................ RIESPONDIENT JUDGMENT MAKARAMBA, J:.- The present appeal must succeed. The reasons as stated by· the learned Counsel in support of the appeal and the elaborate grounds in the -petition of appeal explain it all. The prosecution failed to establish its case beyond any reasonable doubts, which doubts as Ms. Gisela, learned _State Attorney has expl-ained, should have been for the benefit of the accused. The Appellant stood charged with Armed Robbery c/s· 287A of the Penai Code, Cap. 16 R.E·. 2002. As the charged crime stand in the law, the main ingredient of the offence is use of weapon to obtain what is being robbed. In the circumstances of this case, it is alleged that the accused used a "panga" to · obtain the boat engine he is alleged to have stolen from the boat of a . businessman. called CHILETA MAFURU. · The person who claim to have 1 witnessed the robbery with ·vveapon •incident .was his ef!1ployee, PWL However, it is not explained · how the robbery incident took place and whereas PW1 himself said he ·was invaded when coming from · easing himself; The incident took place at around 11 :00 at night. PW2 claims that he identified the accused using light from a torch, whose intensity we have· · not been told so as. to allay fear of. improper or mistaken identification. . PW2 · claims that he knew the accused before the incident but did n·ot participate in the arrest of the accused or even going to the '~burial site" of the engine alleged to have been stolen in the incident. The arrest of the accused also raised serious doubts, while· PW4 claimed that the accused was brought to the Police Station two days after - the incident, PWl, the supervisor, claims that the arrest was done ten days after the incident. The doubts created the prosecution evidence as regards identification, and arrest compounded with failure by the· prosecution to bring critical witnesses to testify have cast a great doubt on the prosecution case. In the instanc~ arid for the above reasons, the appeal succeed. The decision of the District Court of Musoma at Musoma in CrimDnal Case No. 273 of 2007 before·Hon. K.S. Mkwawa dated 16th day of July, 2008 is hereby quashed and set aside. 2 :it l \ The Appellant, _MIKAMA ~/0 STARIKQ is· hereby' discharged from the offence of Armed Robbery c/s_287A of the Penal Code, Cap. 16 R.E .. 2002 for which he stood charged. - The sentence of (30) years in prison meted out against the Appellan_t is hereby stood off. · The Appellant, MKAMA. S/0 STAIRIKO is hereby released from prison where he is being held and ·shall be set at liberty immediately unless he· is being held there for some other lawful reasons. It is so ordered. R.V. M JUDGIE. 3