20190823 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA (DODOMA DISTRICT REGISTRY) AT DODOMA (APPELLATE JURISDICTION) (DC) CRIMINAL APPEAL NO. 48 OF 2018 (Original Criminal Case No. 45 of 2018 of the District Court of Iramba at Kiomboi) A DAM KITUNDU •....•.............................................. APPELLANT VERSUS THE REPUBLIC............U.U...U............U.U................... RESPONDEN1 211612019 & 231812019 JUDGMENT MASAJU, J The Appellant, Adam Kitundu, was charged with, tried and convicted of Armed Robbery Contrary to Section 267A of the Penal Code, [Cap 16] in the District Court of Iramba at Kiombol. He was sentenced to twenty two (22) years Imprisonment on the 161h day of October, 2016 for he had already spent eight (8) years as a prisoner which term was deducted from the mandatory thirty (30) years Imprisonment sentence for a person convicted of Armed Robbery. The charge sheet against the Appellant in the trial court read "that Adam s/o Kitundu and Rashid s/o Mainda are jointly and together charged on 04 day of August, 2008 at about 18:00hrs at New Kiomboi within Iramba District and Singida Region did steal cash TShs. 27,000/—, one handbag valued at TSh. 60001=, one Nokia Ce/u/a 1 hone valued at TSh, 75, 000/= and one cellula phone Battery valued at TSh. 60001= all valued at TSh. 114,000/= the property of one Rehema Ibrahim and immediately after or immediately before after such stealing did injury her on his left hand side by using a panga in order to receive or retain the said property" The testimonies by the alleged eyewitnesses Rehema Ibrahim (PW1), the victim of crime and Hawa Ernest (PW2) is, it is the Appellant who allegedly armed robbed Rehema Ibrahim at the scene of crime. The said witnesses did not testify that the Appellant was in company of any other person at the scene of crime. According to Rehema Ibrahim (PW1) the offence took place at "Makaburini Area" at about 18.00hrs. Hawa Ernest (PW2) testified that on the 4th day of August, at 0:00hrs she was coming from the Market Kiomboi to Kizega area walking along with Rehema Ibrahim (PW1) at a distance of 20 metres away she saw the Appellant assaulting Rehema Ibrahim (PW1) with his knife/panga. The Appellant then ran away after robbing Rehema Ibrahim (PW1) of her hand bag and some money. Both witnesses testified in the trial Court that prior to the fateful incident they hadn't met the Appellant. Hawa Ernest did not specifically mention the place (scene of crime) where the offence was committed but the place might have been along the way between Kiombol Market and Kizega area. The evidence does not establish whether or not Makaburini Area where the alleged armed robbery offence took place, according to Rehema Ibrahim, lies on the way between the said two places/areas, namely Kiombol market and Kizegà Area. 2 Whereas Rehema Ibrahim (PW1) testified that the Crime took place at 18:00hrs at Makaburini Area, Hawa Ernest (PW2) who allegedly was following her at the distance of 20 metres away testified that it was about 05.00hrs. This significant difference on the timing of the crime leaves much to be desired on the credibility of the prosecution case. The scenery at the scene of crime has not been made known to the trial Court. Evidence on scenery of place where the offence took place could have helped the trial court establish whether such scenery, could favour unmistaken identification of a person at 18.00hrs bearing in mind that Rehema Ibrahim (PW1) did not state as to whether or not there was light at the scene of crime. The charge lists the property worth TZS. 114,000/= that was allegedly stolen by the Appellant during the armed robbery incident but the victim of crime Rehema Ibrahim (PW1) testified that she was robbed of TZS 27,000/= and a handbag only. Whereas the charge againstthe Appellant reads that the offence was committed at New Kiomboi Area, Rehema Ibrahim testified that the Crime took place at makaburini Area. The two witnesses Rehema Ibrahim (PW1) and Hawa Ernest (PW2) allegedly identified the Appellant at the identification parade according to Insp. Majaliwa (PW3). The Appellant during defence testified that it was true the said two witnesses did Identify him at the Identification parade because they had first see him at the police station the previous day. The Appellant's co-accused person in the trial court was found to have.no case to answer, was acquitted UnderSection 230 of CPA, [Cap 20] 3 ) accordingly. The Appellant defended himself emphatically that he did not commit the offence he had been charged with. Nevertheless, he was convicted of Armed Robbery and sentenced to 22 years Imprisonment, hence this appeal in the Court. The Appellant's Petition of Appeal bears eight (8) grounds of appeal, amongst them is the 61h ground of appeal, thus:- "That, the prosecution side had miserably failed to prove their case beyond all reasonable doubt but surprisingly the learned trial Court Magistrate proceeded to convict the appellant despite such failure" When the appeal was heard in the Court on the 21 day of June, 2019, the layman Appellant appeared in person and adopted his grounds of appeal to form his submissions in support of the appeal in the Court. He further prayed the court to allow the appeal, quash the conviction and set aside the sentence against him. The Respondent Republic under the advocacy of Ms. Miyango Kezilahabi, the learned State Attorney, contested the appeal on all eight grounds of appeal by the Appellant. Inter alia,. the Respondent. Republic submitted that the Appellant was identified at the scene of crime because the offence took place at 18.00hrs there was light at the scene of crime and that the Appellant was subsequently identified at the Identification Parade. That, the prosecution case against the Appellant was proved beyond reasonable doubt in the trial Court. The Respondent ultimately prayed the Court to dismiss the appeal in its entirety for want of merit. 4 LI That is all, as regards the submission by the parties to this appeal. That said, the record of the trial Court reveals on the proceedings, of the 7th day of October, 2008 that the Appellant raised objection to the case against him, thus: "1 Accused: Your honour, I would like to in form you that, I had same case with same witnesses" P.P: Your honour, the argument put forward by the 1 (sic) is not true. The complainants are different. I pray to proceed with the hearing of this case" The trial Court did not make any ruling on the objection by the Appellant, the prosecution case took off and Rehema Ibrahim (PW1) was called upon to testify, instead. Section 137 of the CPA [Cap 20] provides that a person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal has not been reversed or set aside, not be liable to be tried again on the same facts for the same offence. The prosecution which submitted that the other case against the Appellant was by a different complainant, did not tender any evidence to the trial court to prove that indeed, the other case was of different facts and different offence. In short, the prosecution and the trial Court did not consider Section 137 of the CPA, [Cap 20]. So it is not known as to whether or not section 137 of the CPA, [Cap 20] was contravened. Since 5 11 the trial Court did not make any ruling or finding on the Appellant's objection to the proceedings against him in terms of section 137 of the CPA, [Cap 20] the benefit of doubt thereof goes to him that the Criminal proceeding against him lacks legal sanctions. His trial was therefore a nullity and it is hereby so declared along with the proceedings and the Judgment thereof. Secondly, even on the merit point of view the prosecution case was extremely wanting in that there was variance between the evidence that was adduced in the trial court and the charge against the Appellant, as it has already been so demonstrated somewhere in this judgment. Thirdly, the identification evidence by the prosecution witnesses (PW1 & PW2) was indeed wanting in that it was not stated that there was light at the scene of crime and how the witnesses were able to identify him in the would be fast moving and threatening event for the person who was their first time to meet. In such circumstances, it is doubtful that .Hawa Ernest (PW2) could be able to identify the Appellant at a distance of 20 metres away. Briefly sated, the criteria for unmistaken visual identification under unfavourable and hostile situation as expounded by the court in Waziri Amani V. Republic [1980] TLR 250 were not considered by the trial Court. In l-famis Shingo V. The Republic (CAT) Criminal Appeal No. 586 of 2015 (Dodoma Registry, unreported) the Court held, thus: We think that where a witness is testifying about identifying another person in unfavourable circumstances, like during the ni'ht, he must give dear evidence which leaves no doubt that the identification is I. I correct and reliable. To do so, he will need to mention all aids to unmistaken identification like proximity to the person being identifie4 the source of/ight and its intensity.." Fourthly, it is not so much certain whether or not the alleged offence was ever committed by the Appellant on the material day because the would be two eyewitnesses (PW1 & PW2) contradict each other on the time the offence was committed. The victim of crime, Rehema Ibrahim (PW1) testified that she was armed robbed at 18.00hrs on the 4th day of August, 2008. Hawa Ernest (PW2) the eyewitness, testified that the offence was committed on the 4th day of August, 2008 at 05.00hrs! Which is which. Why so much variance between the two important witnesses who allegedly were at the scene of crime? That is to say, as the Appellant did so rightly submit on his 8th ground of appeal that the prosecution case against him in the trial Court was, not proved beyond reasonable doubt. The conviction and sentence emanating from nullified proceedings cannot survive. The conviction and sentence of 22 years Imprisonment respectively against the Appellant are hereby quashed and set aside accordingly. The Appellant shall be released from prison with immediate effect unless he is otherwise held for some other lawful cause. GEORGE M. MASAJU JUDGE 23/8/2019 / 7