20180818 TZHC Mbeya

IN THE HIGH COURT OF TANZANIA ATMBEYA CONSOLIDATED CRIMINAL APPEALS NO. 166 AND 172 OF 2016 (Originating from Criminal Case No. 28 of 2016 in the District Court of Mbozi at Vwawa) 1. SHIDA SIMON I 2. MICHAEL MWANTEPELE MTUTA..........................APPELLANT VERSUS THE REPUBLIC .......................................................... RESPONDENT JUDGMENT Date of last order: 1910612018 Date of Judgment: 1410812018 Dr. M. C. Levira, J This is a consolidated judgment of appeals No. 166 and 172 of 2018. At the District Court of Mbozi (herein referred as trial court) the appellants and five others were charged with six offences of Gang armed Robbery contrary to Section 287A (c) of the Penal Code Cap 16 R.E. 2002 as amended by Act No. 3 of 2011. The appellants were convicted in all counts henceforth, they were sentenced to serve in prison the term of thirty years in each count. The terms of imprisonment were to be served concurrently. Page 1ofli 47 P The brief story of facts which led to the present appeal can be prefaced in the following context: It is apparent on record that on 18th day of February, 2016 at 03.00hrs, the accused persons including the appellants met at Senjele around Mbeya - Tunduma road where they made unlawful roadblock by using logs. After such blocking they went ahead threatening the civilians and stealing their belongings. The evidence of PWlto PW8 can be condensed to the effect that on the fateful night they saw a number of logs being placed crossing the road. They saw the accused running after them while commanding to stop the cars and step down. At such material time the accused were in possession of bush knives and clubs. It was further stated that with the help of light from the motor vehicles, the accused were easily identified. it is also evident that following the successful road block, the accused including the appellants did steal money and mobile phones. After the arrest, the accused persons were interrogated by PW1 1 and PW12. Vide their caution statements, it is apparent on record that the 1st, 2nd, (herein the 2nd appellant) 3rd, (herein the 1st appellant), 4th and the 5th accused persons admitted that they committed the offence. Page 2 of 11 ma Through identification parade, the accused persons were also identified by the prosecution witnesses. In their respective defenses before the trial court, accused persons protested their innocence. They faulted the caution statement in the premise that they were tortured and forced to confess their involvement in the incident at Senjele. Speaking about identification parade, DW4 for instance commented that the witnesses were lead by the police officers to point them and the accused were not allowed to face the witnesses. DW5 on the other hand challenged the identification parade in the sense that he was arraigned without wearing a shirt. Therefore, it was easy for a witness to pinpoint him. On the basis of the above evidence, the trial Magistrate was satisfied that the charge was sufficiently proved against the appellants and went ahead convicting them as it appears above. The rest were acquitted on the ground of contradicting and' insufficiency of evidence. Being aggrieved with the conviction and sentence by the trial court, the appellants lodged separate petitions of appeal. Though for the Page 3 of 11 0 purpose of convenience through the order of this court dated 19/06/2018 the two appeals were consolidated. Thus, the grounds of appeal in both petitions which appear as alike can be condensed in the following complaints: That the identification evidence by prosecution witnesses was not watertight for failure to give detailed description of the appellants. That the trial Magistrate erred on a point of law when reached his decision relying on caution statements which were retracted. That the trial Magistrate erred in law and fact as she failed to comply with mandatory requirement to conduct inquiry on objected caution statements. That the trial Magistrate erred in law and fact when convicted the appellants by disregarding the defence evidence. That the trial Magistrate erred in law and fact by convicting the appellants despite the fact that the prosecution side failed to prove their case beyond reasonable doubt. At the hearing of the appeal, the 1st appellant was represented by Mr. Chingilile the learned Advocate, the 2nd appellant fended for himself, unrepresented. The respondent Republic had the services of Ms. Mwakilasa learned State Attorney. Page 4 of 11 In respect of impropriety of visual identification, Mr. Chingilile protested that the prosecution witnesses failed to exhaust the necessary ingredients underscored in the landmark case of Waziri Amani Vs. Republic [1980] TLR 250. The learned advocate went further contending that the evidence of visual identification was also compromised owing to the fact the PW1, PW2, PW4 and PW8 contradicted in describing the 1st appellant. It was also the observation of the learned advocate that despite of the identification parade, neither of the prosecution witnesses identified the 1st appellant at the dock. Regarding the legality of the caution statement of the 2nd appellant (exhibit P1) which implicated also the 1st appellant and the caution statement of the 1st appellant (as exhibit P6), Mr. Chingilile submitted that they ought not to have been admitted because they were objected by the appellant and instead the trial Magistrate was under the requirement of conducting trial within trial as per the case of Seleman Hassan Vs. Republic Criminal Appeal No. 364 of 2008, Court of Appeal of Tanzania at Dodoma. Page 5 of 11 E3 It was therefore the observation of the learned advocate that the charge against the 1st appellant was not proved beyond reasonable 11 doubts because there was no chain of evidence which proves the commission of gang robbery and also the delay in mentioning and arresting the appellants diminishes the credibility of prosecution witnesses. The second appellant had nothing to submit rather he prayed for the court to adopt the grounds of appeal as part of his submission. In turn the learned State Attorney had a chance to make a reply. She out rightly supported the appeal on the ground the that Section 287C of Penal Code of which the appellant were charged does only provide for punishment. The learned State Attorney went ahead stating that vide Written Laws (Miscellaneous Amendment) Act No 3, 2011, Section 287A of the Penal Code is the one which establishes the offence of Armed Robbery and not Section 287C. It was her considered opinion that the two sections ought to have been cited together when charging the appellants. And since the offences were framed out of defective charge, the learned state attorney opined that Page 6 of 11 the rights of the appellants were prejudiced as they could not prepare proper defence. Basically what stands to be deliberated in the light of what has been submitted by the learned State Attorney is whether the appellants were properly charged at the trial court and thereafter, fairly convicted and sentenced. The foremost concern which made the learned State Attorney support the appeal is based on a point of law that the charge was defective. And of course I entirely agree with that contention. It is apparent on record that the statement of offence in the charge of gang armed robbery contains only Section 287A (c) of the Penal Code. By virtue of Written Laws (miscellaneous Amendment) Act No 3, 2011 the principle Act (Penal Code) was amended by substituting Section 287A and adding Section 287C immediately after Section 287B. Following such 'amendment, the offence of armed robbery is provided for under Section 287A and for easy reference it is envisaged as hereunder: Any person who steals anything and at or immediately before or after stealing is armed with any dangerous or offensive weapon or instnment and at or immediately before or after stealing uses or threatens to use violence to any person in order to obtain or retain the stolen property, Page 7 of 11 commits an offence of armed robbery and shall on conviction be liable to imprisonment for a term of not less than thirty years with or without corporal punishment. Whereas Section 287C of the Penal code as amended provides: "A person who takes part in gang robbery commits an offence and on conviction is liable to imprisonment for a term of not less than thirty years with or without corporal punishment". Significantly, a charge sheet in any criminal trial is the foundation of any prosecution facing an accused person, as it provides him with the road map of what to expect from the prosecution witnesses during trial of his case. See the case of Mathayo Kingu Vs. The Republic Criminal Appeal No. 589 of 2015 (unreported). Therefore, suffices it to say, as the learned State Attorney contended the later provision cited does demonstrate the punishment of armed robbery offence committed by a group of people unlike to the former one which underscores the crucial ingredients of the offence. Section 287A covers any armed robbery offence regardless whether it is committed by a sole criminal or a group. Page 8 of 11 It is a mandatory requirement under Section 132 of the Criminal Procedure Act Cap. 20 R.E. 2002 that a charge must contain a statement of the specific offence or offences with which the accused person is charged. That section provides as follows: "Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged". It is worth noting that mere citing of Section 287C of the Penal Code without Section 287A under which the offence with its elements are covered, did prejudice the appellants in that, it did not put them in a proper position to understand the nature of the offence they stood charged and thereby, prepare their defense as well. It is thus my considered opinion that, the charge under which the appellants stood charged was faced with defects which vitiated the proceedings of the trial court and thereby rendering the whole proceedings of the trial court to be nullity. Page 9 of 11 As a result, the appeal is allowed. I quash the conviction and set aside the sentence. I order that, the appellants be released forthwith from custody and set at liberty unless lawfully held for any other justifiable cause. -------.? \'\ •. ••:•' I \ •\ 'I Dr. M. C. Levira Judge 14/08/2018 Or Page 10 of 11 Date: 14/08/2018 Coram: Hon. Dr. M. C. Levira, J • Vt Appellant: Present 2 nd Appellant: Present For the Republic: Ms. Kause Kilanzo - State Attorney B/C: E. Kibona Ms. Kause - State Attorney: Madame Judge, the matter is for judgment. We are ready. Court: Judgment delivered in the presence of both sides this 14 ' August, 2018. Right of Appeal Explained. (•',/ !c .••;' \ ••\ lit Dr. M. C. Levira Judge \\ \\N. 14/08/2018 Page 11 of 11