20180829 TZHC Mbeya

.4 IN THE HIGH COURT OF TANZANIA AT MBEYA CRIMINAL APPEAL NO. 190 OF 2016 (Original Criminal Case No. 152 of 2016, from Mbozi District Court at Vwawa) SALUMU s/o MWALEBHELA ....................................APPELLANT VERSUS THE REPUBLIC ........................... RESPONDENT JUDGMENT Date of last Order: 1310812018 Date of Judgment: 2810812018 A.F. NGWALA, J.: The appellant, SALUMU S/O MWALEBHELA was prosecuted in the District Court of Mbozi for the offence of Armed Robbery contrary to section 287A of the Penal Code, [Cap. 16 R.E 2002] as amended by Act No. 3/2011. He was convicted and sentenced to a term of thirty (30) years imprisonment. / The evidence upon which the conviction of the appeiiant/ was founded was to the effect that, on 12th July, 2016, PW 1, Wnyika Mwile aged 21 years old, a motorcycle driver, on the material date at about 19:00 hours while on their way from Masoko area was stopped. The appellant "robbed" him on his neck while pulling out his bush knife. While still there with the appellant, PW1 saw 1iPage . . . another person coming from the other side. The two started to beat him and dragged him into the bush where they tied him with a rope. They covered his mouth with a rope. They left him in the bush and disappeared. After sometime a good Samaritan heard aim crying. They untied him. PW2, No. E 8287 D/CPL Thaeus recorded the appellant's cautioned statement (exhibit 'PFI'). /Pw3 Shilla Mwantepele, a resident of Masoko area, testified tha.t on 12/07/2016 at about 20:00 hours while at the pombe ship he heard noises from the bush in front of his house, he followed the noises and found people tied up with ropes and covered with a jacket. He raised an alarm and untied PW1. He took PW1 to his home where they slept. On the next night PW3 reported the matter. PW4 the owner of the stolen motor bike Make SAN LG with Registration No. MC 268 AWA, tendered the said registration hard as exhibit 'PIT'. / In his defense, the appellant categorically denied to have comiitted the alleged offence. He said that on 12/07/20 16 while he was sleeping at his home, he was arrested by people who beat him severely accusing him of the offence of Robbery. He denied knowing PW1 and PW4 the alleged owner of motorcycle. In this appeal, the appellant appeared in person unrepreser*ed, whereas the respondent Republic was represented by Mr. Msga, learned State Attorney. Four grounds of appeal have been prefrred by the appellant. His main grievance is that the charge agains 1t him 21 P a g e was not proved beyond reasonable doubt, and that his defens9 was not considered by the trial Magistrate. Mr. Msanga, the learned State Attorney, briefly informed this court that the appellant was sentenced before being convicted by the trial court. He argued that in terms of sections 235(1) and 312(2) of the Criminal Procedure Act, [Cap 20 R.E 2002], the appellant was not convicted in accordance with the law and cited the case of Kelvin Myovelwa v. Republic, Criminal Appeal No. 603 of 2015. In rejoinder, the appellant submitted that he has served a two ears jail sentence. He argued that it was the mistake of the court and not his fault for non compliance with the law. For this reasbn he prayed to be released frm custody. In view of the above submissions, the question for consideration is whether or not this file should be remitted to the trial court in order for the trial court to enter conviction as required by the cited provisions of sections 235 (1) and 312 (2) of the Criminal ProceIure Act, iCap. 20 R. E. 20021. / Upon perusal of the trial court's record the evidence that th trial magistrate based in convicting the accused person has a lot of contradictions as argued by the appellant in his Petition of Appeal. The trial court erred both in points of law and facts by failure to evaluate, analyze and consider the defence case in her judgment. This was incurably fatal. PW1 testified that the appellant on:the material date phoned him whereas PW4 also averred the same 3IPage / without stating at what time he communicated with the appellant. It is on record that PW1 testified that it was around 19:00 hours. PW3 alleged that it was around 20:00 hours. PW1, the vitim further testified that at the scene of the crime he was covered bT his own hands while PW3 testified that he found PW1 covered \4th a jacket. In criminal cases especially those which attract heavy punishment like this one, contradiction of this nature are not minor, they ought to have been dealt with at the benefit of the accused person. In the case of Mohamed Said Matula v. R (1995) T. L. R. 3 it was held that: "Where the testimonies by witnesses contain inconsistencies and contradictions, the court has a du1ky to address the inconsistencies and try to resolve them u1Lihere possible; else the court has to decide whethe/ the inconsistencies and contradictions are only minhr, or whether they go to the root of the matter". A prominent legal writer Sakar, in his book titled 'Law of Evidence', 16th Edition, 2007 have this to say at page 48: "Normally discrepancies in evidence are those which' are due to normal errors of observation, normal erro?/s of memory due to lapse of time, due to mental dispo/sition such as shock and horror and those are always them, however honest and truthful a witness may be. M!zterial discrepancies are those which are not normal and not 41 P a g e 13 expected of a normal person. Courts have to labI the category to which a discrepancy may be categn-ized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do." The appellant also complains that the trial Magistrate did not consider his defense. The records reveal that trial Magistkate summarized both, the prosecution case and that of a defense, f ere after she raised an issue for determination. Thereafter, she w on discussing the prosecution evidence. She never touchethe defense side. There is nothing said about the defense case. The trial magistrate directed his mind to the prosecution case oniy. The trial court was expected to assess the probative value, credibility and weight of the evidence preferred by the defense by weighing it against that of: the prosecution with a view to determining whether or not there rrere any reasonable doubts in the prosecution case. The trial magistrate should have performed the legal du/ty of I objective evaluation of the evidence of both parties to the c.se in order to come up with a fair and just decision as held by Massati, J.A. in the case of Bahati Kabuje v. Republic, Criminal Appeal No. 252 of 2014 while quoting with approval the case of Leonard Mwanashoka v. Republic, Criminal Appeal No. 226 of 2014 (unreported) that:- 5 1 P a g a' "Summarizing the evidence, it is one thing to summarize the evidence for both sides separately and another thing to subject the entire evidence to an objective evaluation in order to separate the chaff and the grain. Furthermore, it is one thing consider evidence and disregard it after a propei scrutiny or evaluation and another thing not to consider the evidence at all in. the evaluation or analysis." The trial Magistrate failed completely to analyze properly the evidence adduced before her. Much as rightly argued by the learned State Attorney Mr. Msanga that, the trial magistrate 'ai1ed to adhere to the contents of a Judgment enshrined unde/ the provisions of Section 312 (1) of the Criminal Procedure Act, [Cp. 20 R.E. 2002] by not specifying in his Judgment the offence and the section of the law under which the accused person was convicted, that leads to the conclusion that there was no Judgment by the trial court, as held in the case of George Mhando v. Republic [1983] T. L. R. 118, Mama, J. as he then was. In view ofthe above analysis, I am of the considered view that the appellant did not receive a fair trial as his defense was not properly considjered. Thus the sentence imposed to him was unsafe. The prayers by Mr. Msanga, State Attorney that the record be remitted to the trial court is sound in law but not valid in the circumstances of this case because of the analysed, irregularities 6Page and the failure to convict the appellant that rendered the pur orted judgment by the trial court a nullity. In the circumstances of this case it is not in the interests of justice to order so. By invoking the revisionary powers vested to this court under Section 372 and 373 (1) (b) of the Criminal Procedure Act, [Cap. 20 R. E. 2002], the imposed sentence to the appellant was improper. For that rea 1son, the Judgment of the trial court that was nullity is quashed. / The conviction and sentence is also nullified. The appeal is all5wed. The appellant be released from prison forthwith, unless oth7u'rwise lawfully held. Order Accordingly. 4f4r A.F. kg11a Judge 28/08/2018 7 1 Pag€ Date: 29/08/2018 Coram: W. M. Mutaki, DR. Appellant: Present Respondent: Absent Court: Judgment delivered in presence of the Appellant in the absence of Respondent. Sgd. W. M. Mutaki Deputy Registrar 29/08/2018 81 P a g e