20190830 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM CRIMINAL APPEAL NO. 88 OF 2015 (Original Mahenge/Ulanga District Court Criminal Case No. 98/2008) ·'HAMIS SHOMARY@ SMOKA .................... 1ST APPELLANT JAMES DASTAN MGENDERA ..................... 2No APPELLANT VERSUS THE REPUBLIC .......................................... RESPONDENT JUDGMENT Date of Last Order; 28/08/2019 Date of Judgment; 30/08/2019 S.M. Kulita, J. The appellants namely HAMIS SHOMARI @ SMOKA and JAMES DASTAN MGENDERA who are the 1st and 2nd Appellants respectively lodged this.appeal against conviction and sentence of 30 (Thirty) years imposed against them by the District Court of Ulanga at Mahenge for Attempt Robbery Contrary to Section 287 B of the Penal Code [Cap. 16 R.E. 2002]. It is alleged that on the 27/6/2008 at about 21:00 hrs at Itete Mianzini area within Ulanga District in Morogoro Region the appellants and other three persons 1 , •• Q did attempt to steal from the shop owned by Tegnus Gwalasa after firering a bullet on air. The appellants were convicted and sentenced to the said term of imprisonment while the other three accuseds were acquited. Being aggrieved with both conviction and sentence they appealed to this court. In their submissions the appellants prayed for the court so adopt the grounds of appeal mentioned in their joint petition of appeal as the submissions for their appeal. Those grounds of appeal can be summarized as follows from that petition of appeal and the additional grounds that they did file later; (1) That the trial magistrate erred in law and fact by convicting the appellants on the basis of the prosecution evidence which does not correlates with the charge preferred against them. (2) That the firearm and Ammunitions tendered by the prosecution witnesses (PW.2, PW.3 and PW.4) have not been proved to have any connection with the offence. (3) That the retracted caution statement (Exh P.5) tendered by PW.4 against the 2nd Appellant was admitted without inquiry. 2 j;._,, ~ ,.; V' _., _ (~)- ]"h~at _th~re was unsatisfactory visual identification. (5) That there was no any witness who testified to have seen the appellants carrying a gun (SMG) as claimed in the charge. (6) That the case against them was not proved beyond all reasonable doubts. For the above mentioned reasons the appellants pray for the appeal to be allowed, as well conviction and sentence be set aside. In the reply to the above submissions the State Attorney Ms. Monica Ndekidemu conceded with the appeal. She said that the records show that the accuseds were found in unlawful possession of firearm which is alleged to have been stolen previously by the 2nd appellant. She said that the evidence does not reflect the commission of the offence of Attempt Armed Robbery. The prosecution at lower court was supposed to prove that there was an intention to steal and the firearm was used for that purpose. Ms. Ndekidemu stated that according to PW.1 who is the victim in that matter he just heard the gun shot at the place which is nearby his shop 3 premise but never stated if there was any intention to steal. The other three witnesses; PW.2, PW.3 and PW.4, all of them being Police Officers stated that the appellants had been found in unlawful possession of firearm. As for the testimony of PW.5 his testimony is to the effect that he heard a gun shot while at his residential place. He then went to the scene (PWl's resident) where he was told by PW .1 that there were. some thieves who had intended to steal from his shop. Ms. Ndekidemu stated that the testimony of PW.5 is hearsay as he just narrated what he was told by PW .1. Not only that but his testimony contradicts with what was stated by the PW.1 who never alleged that the bandits had the intention of stealing. The State Attorney concluded by conceding with the appeal that the offence of Attempt Armed Robbery was not proved beyond all reasonable doubts at the lower court. From the above submissions I can agree with the parties that the case at the lower court was not proved beyond all reasonable doubts. Actually the records transpires that the testimonies of all Police Officers relied on the fact that the 4 accused persons including the .appellants were in unlawful possession of firearm. They never touched the issue of accuseds attempting to steal. The records transpire that PW.2, a Police Officer testified that he did receive a call from the citizens that the 2nd appellant (Mgendera) had been arrested by the citizens holding a firearm make SMG. He testified that he went at the scene with other Police Officers and arrested the said person holding a firearm. Those other persons include PW.3 and PW.4. who also testified the same thing that they went to the scene with PW.2 and arrested the 2nd accused. Those witneses testified that the 2nd appellant mentioned the other four persons including the ist appellant who were also charged at the lower court. Such testimonies reflects nothing to the charge of Armed Robbery against the accused person. Furthermore, as submitted by the State Attorney that the testimonies of PW.1 (victim) and PW.5 are contradictory in the fact that while PW.1 who is a victim said nothing about attempt stealing but he only heard the gun shot PW.5 stated that he was told by PW.1 that 5 the bandits had attempted to steal from his (PW.l's) shop. That testimony by PW.5 have no legal weights at all for being hearsay, as well the same contradicts with what PW.1, the purpoted eye witness had said. In WOOLMINGTON V. OPP (1935) AC 462 it was held that the prosecution side has a duty to prove its case and the standard of proof is beyond all reasonable doubts. Sincerely, the Criminal Case No. 98 of 2008 of. Ulanga District Court at Mahenge was not proved beyond all reasonable doubts. Conclusively I allow the appeal. Conviction and sentence of 30 years imprisonment that was imposed against the appellants by the lower court are hereby quashed and set aside. The Appellants are to be set at liberty immediately unless otherwise 'ltL S.M. Kulita JUDGE 30/8/2019 6