20170622 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM CRIMINAL APPEAL NO. 4 OF 2011 / _./ (Originating from Kibaha District Court Criminal Case No. 111 of 2000) HARUNA ALLY LIPUMBA ...................... ~ .... APPELLANT VERSUS THE REPUBLIC ...................................... RESPONDENT JUDGMENT MKASIMONGWA, J. HARUNA ALLY LIPUMBA (appellant) stood before Kibaha District Court charged with Robbery with violence contrary to Sections 285 and 286 of the Penal Code. It was alleged by the prosecution that:- "... Harnna s/o Ally Lipumba charged on 30th of August, 2000 at 04.40 at Boko village within Kibaha District, Cost Region did steal one bicycle Model A VON valued at Tshs. 40,000/= the property of Ally $/o Jabiri and immediately ·'.,,;, before or immediately after such stealing did use actual .., evidence to the said Ally s/ o Jabiri to wit did cut him on his head by using ti panga in order to obtain or retain properties" 1 ,_; r_. { The appellant was found guilty and therefore convicted of the offence and sentenced to thirty (30) years Imprisonment. In short the evidence upon which the accused/appellant was convicted is as that; on 30/8/2000 at 4.30 am, ALLY JABIRI (PW2) and OMARY HEMED (PW3) were riding bicycles in their way back home from Tumbi Hospital when they met with three persons. One of the persons kicked that bicycle ridden by PW3 and the later fell down. They identified one of the three people as being the Appellant as there was ample light and that they knew the appellant even before that material time. The Appellant did cut PW3 by a panga before he was robbed his Tshs. 4,500/=. The incidence was eventually reported to the police station where PW3 was provided with a PF.3 for treatment. The PF.3 was tendered in evidence marked as Exhibit P 1. The prosecution evidence also shows that one C.6398 D/S/Sgt GERARD (PW 1) was assigned to investigate on the reported ~ase. PWl told the court that the victims (PW2 and PW3) mentioned the Appellant to be their culprits. The Appellant was searched and arrested and accordingly charged. At the police station PW2 and PW3 were shown a bicycle which PW2 had identified to be his property. The Appellant is aggrieved by both the conviction and the sentence imposed. He challenges them by appeal lodged to this court. In the petition of Appeal the appellant lists six (6) grounds of appeal which revolve around two issues: One: Whether the 2 r;. Appellant was properly identified at the scene of cnme. Two: Whether the evidence adduced by the pro.secution proved the - charges beyond reasonable doubt. When the appeal came up for hearing the appellant appeared 1n person and Miss Debora Mcharo, learned State Attorney, appeared on behalf of the Respondent Republic. When was invited to argue the appeal, the appellant simply prayed the court to consider the grounds of appeal, allow the appeal and eventually order for his immediate release from jail. On the other hand Miss Mcharo supported the appeal. She stated in the light of the principles laid in the case of AMANI WAZIRI V /R (1980) TLR that PW2 and PW3 did not tell the court how did they identify the Appellant at the scene of crime. The learned state Attorney also faulted the sentence imposed by the trial court. She said whereas the Appellant was charged and convicted of Robbery with violence he was sentenced as if he was convicted of Armed Robbery, which offence was first introduced sometime in 2004. Before dealing with the issues raised above (visual identification and the standard of the evidence adduced), I find it material worth to discuss whether the adduced evidence supports the charges. I have quoted herein above what the prosecution alleged in the lower court as it is shown in the particulars of the offence set in the charge sheet. Again I have shown what was the evidence adduced to the court in support of the charges. It is clear to me that this is the case where one can certainly say that there is 3 variance between the charge and evidence. Whereas the particulars - of the offence show that the Accused/ Appellant had stolen a bicycle make Avon valued at Tshs. 40,000/= the property of ALLY JABIRI (PW2) after he had cut that PW2 with a panga, the adduced evidence is to the effect that the Accused stole a sum of Tshs. 4,500/= from OMARY HEMED (PW3) again he stole the sum after cutting him with a panga. It is the duty of the prosecution alwa:ys to - prove the charges beyond- reas6nable doubt. As it was held in the case of JOSEJ>H SYPRIANO V/S R. Criminal Appeal No. 158 of 2011 (CAT - Unreported) the judgment based on the evidence that differs from the charges runs the risk of being quashed on appeal on account of discrepancies between the evidence and the charges. Where there is variance between the charge and the evidence, Section 234 (1) of the Criminal Procedure Act (CPA) provides for a remedy. Under the Section, the court may be moved to amend or alter the charge. The section allows the prosecution to move the court to amend or alter the charge before judgment and the court may order for amendment or alternation of the charge upon being satisfied that the charge is defective either in "Substance" or in "form". In the instant case, the variance does not involve time. It is not therefore curable under Section 234 (3) of the CPA. Again until when the judgment was delivered the court was not moved nor did it think and order for amendment or alternation of the charge. The judgment which finds the accused guilty runs the risk of being quashed on account of the highlighted discrepancy. In view of the 4 above, I quash the conviction and set aside the sentence imposed against the accused person by the lower court. The above finding necessitates the court not discussing the issues raised by the appellant and respondent in the appeal and it is hereby ordered that the Appellant be forthwith released from jail if he is not therein for other lawful cases. Dated at Dar es Salaam the 22 nd of June, 2017. E.J.~a JUDGE 22/6/2017 5