20180621 TZHC Mbeya

IN THE HIGH COURT OF TANZANIA • ATMBEYA CRIMINAL APPEAL NO.192 OF 2016 (Original Criminal Case No.18 of 2016 from District Court of Mbozi at Vwawa) KENETH S/O MICHAEL TUPA . ............ ....................APPELLANT VERSUS THE REPT.JBLIC .................................................... RESPOr.1DENP1% JUDGMENT Date of last Order: 1510512018 Date of Judgment: 2110612018 NGWALA, J: The appellant Keneth s/o Michael Tupa was charged and convicted of the offence of Armed Robbery Contrary to Section 287(A) of the Penal Code as amended by the Act No.03 of 2011. It was alleged that on the 30th day of September, 2015 at about 13:00 hours at Hampangala Village within Mbozi District in Songwe Region the appellant stole one Motorcycle with Registration No.T.258 BXY make T - Better Valued at Tshs.1,500,000/= the property of one Jeremiah s/o Katani. Immediately before or after such stealing did threaten to stab by knife one Falao s/o Siame who was driving the said motorcycle in order to obtain the said property. k 1 At the conclusion of the trial, the learned trial Magistrate found the appellant guilty of the charged offence. He convicted him and sentenced him to serve thirty (30) years imprisonment. The appellant is aggrieved with the said decision. He has appealed against both the Conviction and Sentence. In his Petition of Appeal, containing ten (10) paragraphs as grounds of Appeal, the appellant is complaining that the case against him was not proved beyond reasonable doubt. He was not properly identified by PW1 the victim. There was no evidence to corroborate the evidence of PW1 and that the defense case was not considered. At the hearing of the appeal, the appellant fended for himself as he had no legal representation. The respondent, Republic was represented by Miss Makombe, the learned State Attorney. The appellant prayed for the Court to adopt his grounds of appeal. Miss Makombe opposed his appeal. She submitted that the appellant and his friend had committed the offence. There was enough evidence to support the trial Court to convict him. The appellant and his friend Asheri were properly identified by the victim (PW 1) as the incident occurred in the day time. Regarding the issue of identification the complaint by the appellant that PW1 failed to describe his appearance on the material date is untenable. Miss Makombe argued that according to PW1 he knew the appellant before the incident. On the date of incident PW1 travelled together with the accused by the motorcycle. The appellant was wearing a red shirt and black jeans with sandals. In the light of this evidence there was no need for further evidence 1 describing the physical outlook of the appellant. On the uncorroborated evidence of PW 1, the appellant complains that there was no knife, and proof of ownership of the motorcycle with registration No. T.258 BXY. It is true from the record that there was no proof of ownership and a driving licence of PW 1 was not tendered. The learned State Attorney argued that this was not an issue for determination. The absence of the said documents in evidence does not mean that the said motorcycle was not stolen. The argument on lack of PF3 and the knife, that was not tendered as exhibit does not vitiate the fact that the appellant was seen by PW1 at the scene of crime. The prosecution side however had a duty to prove threat as required by the law. It is a cardinal principle in Criminal Law that there is no specific number of witnesses required to prove a Criminal Charge in Court. A single credible witnesses suffices to hold a person criminally liable. Section 143 of the Evidence Act [Cap.6.R.E.2002] in our jurisdiction provides: - "143 subject to the provisions of any other written law, no particular number of witnesses shall in any case be required for the proof of any fact". 3 This provision of the law was well discussed in the case of Gudluck Kyando v. Republic (2006) TLR 363, at page 367, the Court stated that:- "This being a Criminal Case the burden lies on the prosecution to establish the guilty of the appellant beyond all reasonable doubt. This in our view is not dependant upon the number of witnesses called upon to testify". It should be noted that the appellant's identity was based on identification by recognition. The appellant was known to PW1 before the incident. PW1 firstly mentioned the name of the appellant and that of his friend to his father later to the Police Officers. The elements for identification are enumerated in the land mark case of Waziri Amani v. Republic (1980) TLR 250. The victim (PW1) stayed with appellant and his friend for sometime, therefore there was enough time to identify the appellant who was known to him. In the case of Juma Shabani @ Juma v. Republic, Criminal Appeal No.168 of 2004, Court of Appeal of Tanzania (unreported) quoted the case of Jackson Kihili Lubindi and another v. Republic, Criminal Appeal No.139 of 2007, The Court of Appeal of Tanzania at Dar es Salaam (unreported) held that:- "... it is common knowledge that details of the identification of an accused person are required in particular where the witness did not know the accused before the incident". 4 In the instant case, the evidence of PW1 is to the effect that they knew the appellant before the incident. The appellant was not seen for the first time during the incident. The same position was also observed by the Court in the case of Raymond Francis v. Republic (1994) TLR 100 that:- "It is not in every situation that description in detail of the identity of the accused is necessary. Where the accused, as in this case the appellant was known to the witnesses before the incident such details of the description of the identification of the appellant could well be missing without necessarily affecting the essence of the evidence of the witnesses on identification". The only doubt in this case, is based on the evidence of a single witness PW1, which is uncorroborated. The evidence of this witness casts a lot of doubt as to whether the offence Armed Robbery in terms of Section.287A of the Penal Code [Cap. 16.R.E.2002] was committed. It has not been established in the evidence of PW1 that before or immediately after the incident that the knife was used to grab the motor cycle. For the sake of clarity the testimony of PW1 is recorded to have been as follows:- "While at ranadani came one Keneth Michael and Ashiri and asked me to take them (sic) Ihomwa, I agreed with them and took them to fhomwa. Upon 5 went on (sic) before reached Jhomwa Ashiri gath me on my neck and they told me to gave them my motorbike. I just gave them the motorbike and started to cry, while on the way, I met with the other bodaboda drive who took me to my father. I reached to my father, I told him the story and I mentioned Keneth and Ashery to be the one who been grab (sic) me. Keneth had a knife and whom he (sic) to gave them a motorbike, they were skared (sic) to threw me into the river" The above narration of the evidence as quoted above is too weak to ground a conviction on armed robbery. It does not make in real sense to be vital and valid in law to establish and convict a person of a serious and grave offence of armed Robbery, that warrants the Conviction and Sentence of thirty (30) years imprisonment. To say the least, the case was poorly investigated and prosecuted. The trial Magistrate too recorded the evidence poorly. It is for the said reason that I see merit in this Appeal. Accordingly the Conviction and Sentence is set aside. The accused person should be released from prison, and set free, unless lawfully held for another cause. 4-A*-t( 4 A.F. Ngwala Judge 21/06/2018 Date: 21/06/2018 Coram: Hon. A.F. Ngwala, J. Appellant: Present For Appellant: unrepresented For Republic: Mr. Masaga (State Attorney) B/C: Miss Sarah Mungure Court: Judgment delivered in Court in the presence of the Appellant and State Attorney. Court: Right of Appeal to Court of Appeal of Tanzania explained. A.F. Ngwala Judge 21/06/2018 7