gift salingwa vs republic 2021 tzhc 9226 11 november 2021

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA (IRINGA DISTRICT REGISTRY) AT IRINGA RM. CRIMINAL APPEAL NO. 58 OF 2020 (Originating from Criminal Case No.79 of2019 at Njombe Resident Magistrate Court) GIFT SALINGWA................................... APPELLANT VERSUS THE REPUBLIC ................................... RESPONDENT Date: 18/10 & 11/11/2021 JUDGMENT MATOGOLO.J. In this appeal, the appellant Gift Salingwa is challenging the decision of the Court of Resident Magistrate Njombe in which he was convicted of the offence of Robbery with violence contrary to Section 285 and 286(1) of the Penal Code Cap. 16 R.E. 2002 as amended by Section 10(a) of the written Laws, (Miscellaneous Amendment Act) No. 3 of 2011. It was alleged that on 17th day of April, 2019 at Njombe village within the District and Region of Njombe the appellant stole one motorcycle make SANLG with Reg. No. MC690 BNN. The property of Aldo d/o Wikunge and immediately before or after the time of such robbery used personal violence against Marco s/o Mhada to threaten him in order to obtain the said motorcycle.________ ______ 1 | P a ge After the trial the appellant was convicted and sentenced to serve 15 years imprisonment. Aggrieved with both conviction and sentence, he has appealed to this court in which he put forward five grounds which I will demonstrate in the course of this judgment. At the hearing, the appellant fended himself while Piensia Nichombe leaned State Attorney appeared for the Respondent Republic. The learned State Attorney supported the appeal. She argued 1st, 2nd, 3rd and 4 grounds together. She said in order for the offence of robbery with violence to be committed the accused must apply force or anything against the owner of the property in order to obtain or retain that property. She said at page 20 of the trial court proceedings the victim of the offence PW3 explained in court that he was told by the appellant to stop the motorcycle for his safety. The appellant grabbed him on his neck it is when he released the motorcycle and ran away. But there is no where he stated that appellant applied violence against him for the purpose of obtaining the motorcycle. She said for purpose of proving the charged offence the available evidence is insufficient to prove the same. She said according to section 110 of the Evidence Act, the one who alleges must prove, it was the duty of the prosecution to prove the charge against the appellant beyond reasonable doubt. The learned State Attorney submitted further that as can be seen at page 21 of the lower court proceedings while PW3 being cross-examined explained that at the time the appellant hiring him, there were more than seven people who saw the appellant while hiring the motorcycle in 2 ( Pa g e question property of PW3. It is not clear if the victim was hired to send the appellant where he wanted to go. But the appellant himself said he hired the motorcycle for four days. It was the duty of the prosecution to call all seven people who were present to prove that the victim was hired by the appellant to send him to the village he wanted to go. Although under Section 143 of the Evidence Act there is no exact number of witnesses the prosecution has to call to prove a charge but the same provision requires the prosecution to prove the charge against the accused person beyond reasonable doubt as it was held in the case of Nathanael Alphonce Mapunda and Another vs. The Republic (2006) TLR 395. And the burden of proof lies on the prosecution throughout. In the present case the burden of proving the offence of robbery was on the prosecution but failed to do so. Regarding the fifth ground of appeal that the trial court did not consider the appellant's defence, Ms. Piensia Nichombe agreed with the appellant. In his defence at page 24 to 28 the appellant explained the way he hired the motorcycle from PW3 on the agreement that he will use it for four days for consideration of Tshs. 40,000/= of which 20,000/= was paid. But the appellant breached the contract as he left with the motorcycle up to Mbeya where he was arrested possessing the motorcycle. She said this evidence was corroborated by DW2 who told the trial court at page 28 that is the one who sent the appellant to PW3 so that the appellant could hire his motorcycle. He also explained that appellant paid PW3 Tshs. 20,000/= 3 | Page as advance payment. The remaining amount was to be paid the following day. But later PW3 started to trace DW2 if he has seen the appellant as the latter was not picking his phone. But the trial court did not consider that evidence she said there was an agreement between the victim and the appellant which was breached. For that case the trial court did not consider appellant's defence. Ms. Piensia Nichombe said this being the first appellate court can go through the entire evidence and come with its proper interpretation for interest of justice. She concluded by saying that the charged offence was not proved beyond reasonable doubt. On his part appellant had nothing to add. Having heard the parties, and upon going through the appellant's grounds of appeal and the lower court proceedings, the only issue for determination by this court is whether the appellant was properly convicted and whether this appeal has merit. I have understood the appellant's complaints as revealed in the grounds of appeal which essentially was supported by the learned State Attorney. It is trite law that in criminal cases the burden of proof lies on the prosecution throughout, as the same cannot shift to the accused person. But also the standard of proof is higher, that is beyond reasonable doubt. This was held in the case of Natiianiei Alphonce Mapunda and Another vs. The Republic (supra) what the accused person needs to do is just to raise doubt on the prosecution case but not to prove his innocence. Ms. Piensia Nichombe has clearly submitted that in order for an accused person to be convicted of the 4 | P age offence of robbery with violence, there must be force applied or anything against the owner of the property. The offence is defined under Section 285(1) as follows:- "285(1) any person who steals anything and at or immediately before or immediately after the time of stealing uses or threatens to use actual violence to any person or property In order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained is guilty of robbery. This was well explained in the case of Magesa Chacha Nyakibaii and Another vs. the Republic, Criminal Appeal No. 307 of 2013. Looking at the ingredients of offence of robbery with violence and the evidence adduced and received by the trial court, you cannot safely say that the robbery with violence was proved after the ingredients of offence was met. Ms. Nichombe is correct in his submission that the ingredients of robbery with violence was not proved. But also it was correctly submitted by Piensia Nichombe that the prosecution did not discharge its burden by proving the offence of robbery with violence beyond reason doubt. Consonant to that the trial magistrate did not consider the appellant's defence. What appears to be apparent in this case, there was an agreement between PW3 owner of the motorcycle and the appellant for the latter to hire the motorcycle of PW3. The 5 [ Pa ge agreement is that the appellant has to pay 40,000/= to remain with the motorcycle for four days, the appellant paid Tshs. 20,000/= as advance payment the rest was to be paid the following date. What appears to have caused the problem is when appellant left with the- motorcycle to Mbeya which was not among the terms of their agreement. All these were not disputed by the prosecution. But to that extent, can it be said that there was an offence of robbery with violence committed?, definitely not. PW3 saying that he was ordered on the way to stop for safety and releases the motorcycle and ran away was just a mere fabrication in my view to try to impress upon the court to see that there was robbery with violence. Even if we take that to have been altered does that amount to threat or violence. The answer is definitely not. Having traversed through the entire evidence, I am of the firm view that the offence of robbery with violence was not committed, like the learned State Attorney, I find merit with this appeal. The same is hereby allowed. It follows that the conviction against the appellant is quashed and sentence of 15 years imposed set aside. I order that the appellant is to be released from the prison custody immediately unless he is lawfully held for other causes. It is so ordered. 6 ] Pa ge DATED at IRINGA this 11th day of November, 2021. JUDGE 11/11/2021 Date: 11/11/2021 Coram: Hon. F. N. Matogolo - Judge L/A: B. Mwenda Applicant: Present Respondent: Radhia Njovu - State Attorney C/C: Grace Radhia Niovu — Advocate: My Lord I am appearing for the Respondent. The appellant is present. The case if for judgment we are ready. Appellant: Honourable Judge I am ready. 7 1 P a ge Court: Judgment delivered. JUDGE 11/11/2021 8 | Page