simon kinguye kibwabwa vs republic 2020 tzhc 663 24 april 2020

IN THE HIGH COURT OF TANZANIA MUSOMA DISTRICT REGISTRY AT MUSOMA CRIMINAL APPEAL NO 181 OF 2019 SIMON KINGUYE KIBWABWA__________________________________ APPELLANT VERSUS THE REPUBLIC________________________________________________ RESPONDENT (Arising from the Decision and Orders of the District Court of Tarime, Hon. Mugendi RM, in Criminal Case No 178 of 2018 dated 15.05.2019) JUDGEMENT Date of last order; 24.03.2020 Date of Judgment; 24.04.2020 GALEBA, J. In the district court of Tarime, SIMON KINGUYE KIBWABWA was charged, convicted and sentence to serve 30 years imprisonment for the offence of armed robbery at Kwisarara village in Tarime district. According to the respondent the appellant in the com pany of two others who had not been arrested at the time of his trial during the night of 16.02.2018 they broke the door of one JACOB MWITA IKWABE's house, threatened him with a m achete and stole from him Tshs 5,000,000/= and two mobile phones. The appellant disputed the case, but the trial court believed the case of the prosecution, found him guilty of the offence charged, convicted and sentenced him as above. The appellant was aggrieved by both the conviction and the sentence hence the present appeal. Before getting to the grounds of appeal, let me first highlight a few matters that are not in dispute. First the offence was committed on 16.02.2018 but the appellant i was arrested two months later on 16.04.2018, second out of the 4 witnesses who testified three of them PW1, PW2 and PW3 knew well the appellant, third there is no evidence on record why the appellant was not arrested for all the 2 months and fourthly, when PW1, JACOB MWITA IKWABE who is the complainant reported the robbery to the police he mentioned the names of those he identified as robbers to be MANG’ENYI GHATI KISENDI of M atam akwe village, NYAITENYI MONCHO of Kwisarara village and SABAI KIGUYE of Mgweha hamlet and fifthly whereas no appellant mentioned the name of the appellant in court, PW3 BHOKE DAUDI stated that the appellant’s nam e in court was MSABI KIBWABWA. Now back to the appeal. In this appeal the appellant raised 9 grounds, but for reasons that will becom e apparent as w e proceed, all the grounds will not be typed in this judgment except for grounds 2, 6 and 8 which are as follows; "2. That the trial magistrate erred in law and fact to hold that the appellant was properly identified at the scene of crime while it (sic) was wrongly and mistakenly identified at the alleged scene of crime and terms of criteria o f identification did not meet the requirements o f the law. 6. That if the trial magistrate had carefully evaluated evidence adduced before he (sic) hence she could discover the appellant did not seen (sic) or identified at the alleged scene of crime. 8. That the prosecution side failed to prove the case beyond reasonable doubts." Submitting in support of the above grounds taken together, the applicant’s wide complaint was based in his identity at the scene of crime. His argument was that he was not identified properly because had he participated in the crime and identified, the next 3 days on 19.02.2018 when mentioning the people who invaded his house PW1, JACOB MWITA IKWABE would have mentioned him at the police, but 2 to the contrary he was not mentioned. He stated that even PW3 stated that the person she saw was MSABI KIBWABWA. He submitted that the case was not proved against him beyond reasonable doubt. In reply to those grounds relating to identity, Mr. Frank Nchanila learned state attorney submitted that, all the witnesses identified the appellant as one of the robbers during the trial and that if the appellant w anted verification as to his identity he ought to have cross examined the witnesses. He stated that even at page 12 of the typed proceedings PW4 was called to arrest the appellant. This Court considered submissions of parties and reviewed the record of the district court including the charge sheet which was drawn by the prosecution and EXHIBIT D1 which is a statement of PW1 JACOB MWITA IKWABE, who went to the police to complaint about the robbery at his home. In that statement, the com plainant stated that at the time of the crime he identified three persons because there was sufficient light. He mentioned those he identified to be MANG’ENYI GHATI KISENDI of M atam akwe village, NYAITENYI MONCHO of Kwisarara village and SABAI KIGUYE of Mgweha hamlet. Although the above was the information from the complainant on 19.02.2018 three days after the robbery, the Public Prosecutor on 16.04.2018 two months after the robbery drew up a charge showing that the accused was none of those who were identified by the complainant and reported to the police but SIMON S/O KINGUYE KIBWABWA a person not mentioned to the Police as per EXHIBIT D l. Whereas the complaint specified the robbers he saw to the police, the Public Prosecutor instead of charging them, he charged the appellant, a resident of MWANGANZA Street. The persons that were mentioned at the police none of them resides at MWANGAZA street. 3 The evidence of the prosecution in the trial court is d ead silent as to this crucial matter of identity of the appellant and his residence. For instance PW1, the complainant did not testify that any of the names in his statement belonged to the appellant. DW3 during the trial stated that the appellant’s name was MSABI KIBWABWA, but she did not go further to testify that MSABI KIBWABWA is also known as any of the names in EXHIBIT D l. PW4, G3092 D/GSBL RAPHAEL SWAUM, was the police official who investigated the case. He did not disclose or explain as to how he cam e up with the nam e SIMON S/O KINGUYE KIBWABWA from MWANGANZA street instead of either MANG’ENYI GHATI KISENDI, NYAITENYI MONCHO or SABAI KIGUYE. It is also not clear from the prosecution evidence as to why it took so much time, two months to arrest the appellant. In this respect the appellant told the court that all the time he was at his home but he was arrested after two months of the crime. This doubt would have been cleared by the evidence from the prosecution by testifying that m ay be the appellant was not arrested for all that long time because he had absconded from his village, but there w as no such evid en ce. Mr. Nchanila’s submission was that if the appellant felt that his identity had not been fully verified then he had to cross examine the prosecution witnesses on that aspect. But with due respect, to a cce p t that line of argument would be to require the accused to prove his innocence which is never the case in criminal law and practice except where it is specifically provided by statute. During the appellant’s evidence at page 16 of the typed proceedings, he complained that the persons who were identified at the scene of crime as criminals by the complainant were not arrested by the police or arraigned in court. He complained that the case is fabricated against him and he did not participate in the robbery. I 4 must also observe that it was actually for the prosecution to cross examine the accu sed in order to show that one of the names in those reported at the police was his, but that was not done. The matters discussed in this judgment raise serious doubts with sufficient strength to shake lose the prosecution case. Consequently grounds 2, 6 and 8 are hereby upheld. Finally as the decision on those grounds is sufficient to dispose of the whole a p p e a l it would be a waste to venture into resolving or even discussing any other grounds. To conclude this judgment, in view of the holding above this Court is of the firm position that in the district court the prosecution did not m anage to prove the case against the appellant beyond reasonable doubt as required in criminal cases. Therefore the appellant's conviction in the district court is quashed and the judgment is set aside. It further follows that the app eal is allowed with further orders that the appellant SIMON KINGUYE KIBWABWA be released from prison and set to liberty unless he is held there for some other lawful cause not related to criminal case no 178 of 2018. It so ordered. DATED at MUSOMA this 24th April 2020 Z. N. G aleb a JUDGE 24.04.2020 Court; This Judgment has delivered today the 24th April 2020 in the absence of parties but with leave to be absent following the corona 5 virus outbreak globally and the medical advice to maintain social distance between individuals. Order; Sufficient copies of this judgment be deposited at the Judgment Collection Desk for parties to collect their copies free of charge. Z. N. G aleba JUDGE 24.04.2020 6