20180917 TZHC Dodoma

''ORIGINAL'' IN THE HIGH COURT OF TANZANIA DODOMA DISTRICT REGISTRY AT DODOMA CRIMINAL APPELLATE JURISDICTION · DC CRIMINAL APPEAL NO. 113 OF 2017 (Originating from the District Court of MPWAPWA at MPWAPA Criminal Case No. 234 of 2016) DIRECTOR OF PUBLIC PROSECUTION; ... ~ .. ~-... .:APPELLANT VERSUS RAPHAEL S/0 MKWAI. ........................... 1 sT RESPONDENT ·•. S/0 KOMBOZ0 .......................... 2 KENETH ~ RESPONDENT JUDGEMENT Mansoor, J: 17TH SEPTEMBER 2018 The respondents herein were charged with the offence of Robbery c/s 287 A of the Penal Code, Cap 16 1 "ORIGINAL" ,, ) ·,_,,- R: E 2002. The Trial Court did not find the respondents guilty of the offence charged but they were found guilty of the lesser ·offence of causing grievous harm c/s 225 of the Penal Code, Cap 16 R: E 2002, they were convicted of the lesser offence and sentenced to serve -a-jail term of seven_ years each and each respondent was ordered to pay the victim THz 5 million as compensation. The State i.e. the Director for Public Prosecution was - dissatisfied · -with the - conviction; he filed an appeal raising two grounds of appeal as follows: 1. That the Trial Magistrate erred in holding that the charge of Ar1:11ed Robbery was not proved beyond reasonable doubt; 2. The Trial Magistrate erred in convicting the Respondents for the offence of Grievous Harm. 2 "ORIGINAL" At the hearing, the victim was present who appeared badly disabled and injured. He could not help himself, he was unable to walk properly and looking very unhealthy and tired. The State was represented by Ms Rachel Tully, the newly recruited State Attorney while the Respondents were represented by Advocate Amon Ezekiel. In all robbery there is both theft and extortion. Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, wilfully causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt. Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence 3 "ORIGINAL" of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted. In robbery an element of violence is present along with theft or extortion. Violence is either actually used or attempted to be used either for carrying away of the property or for making the victim part with the property. As observed earlier, consideration of sympathy for the victim cannot be permitted to overshadow the consideration regarding the principle of proof beyond reasonable doubt. The prosecution were duty bound to 4 "ORIGINAL" prove beyond reasonable doubt that there was a thing stolen from the victim as well as intimidation coupled with violence. When responding to the appeal Counsel Amon Ezekiel pointed out the charge which was defective. He -said-the- eharge- sheet -shows- that --the ·-offence- was- - - committed on 27 th December 2017 while the - -~ proceedings shows_ that_ the ___ accus.e_d __p.ersons-wer-e--- -··---- - - ---.·-·- -~- --- - - ----~-- ·arraigned and brought before the court for the first time on 16 / 05/201 7, and this means that they were brought before the Court and framed for the charge which was committed in a future date. Ms Rachel Tully, the State Attorney, conceded the error on the charge sheet. It is the argument of the Counsel for the Respondents that initiation of the proceedings for the 5 "ORIGINAL" (._j offence punishable under 287 A of the Penal Code is bad and the Respondents could not have been prosecuted for the said offence as the Charge Sheet was incorrectly dated. Having considered the totality emerging from record, the C<>urt_ i~ _of the view that, -prim-a· facie, the accused persons could have been charged for the offence of Armed Robbery c/s 287A and properly ·prosecuted had the charge sheet been correct however there was a major error found in the charge sheet (by inserting the wrong date) and this is related to the element of negligence, may be by overt act or by omission by the public prosecutors causing injustices to the victim as well as to the offenders. For the above stated reasons, I quash the conviction and the sentence but I shall order the file to be remitted back to the District Court for re-trial 6 "ORIGINAL" whereupon the charge sheet will be amended and a fresh trial be held. It is so ordered. ANSOOR Judgement delivered in Court today 1n the presence of the Appellant represented by Ms. Magesa, and in the presence of Advocate Amon Ezekiel for the Respondents and Ms. Matiky - JUDGE ,· ~7TH SEPTEMBER ,2018 \ \ 7 I