japhet sikwamba vs republic 2023 tzhc 17569 31 may 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF SUMBAWANGA AT SUMBAWANGA CRIMINAL APPEAL NO. 26 OF 2022 A (Original Criminal Case No.87 of 2021 in the District Court of Kalambo at Matai) JAPHET SIKAWIMBA ....APPELLANT VERSUS THE REPUBLIC RESPONDENT 18/5/2023 & 31/5/2023 MWENEMPAZI, J The appellant and his colleague one Muhamedi S/O Haden were arraigned ■;S in the District Court of Kalambo and charged with the offence of armed ibk wk robbery contrary to section 287A of the Penal Code, [Cap. 16 R.E. 2019]. Mohamed S/O Haden was the first accused and Japhet s/o Sikawimba was the second accused. It was alleged that the accused persons jointly on the 14th day of July, 2021 at Matai 'A' Village within Kalambo District in Rukwa Region did steal one Motor Cycle make Kinglion Valued atTshs. 2,450,000/= i and that immediately before and or after such stealing, they used a machete to threaten one Laban S/o Michael in order to obtain and retain the said property of one Bahati s/o Amani@Mwasaka. All of them pleaded not guilty to the charge. After hearing the case, the 1st accused person one Muhamed s/o Haden was acquitted under section 235 of the Criminal Proced i. 20 R. E 2019 ... on the reason that there is no evidence lin mmission of the offence. The 2nd accused was found g convicted with the offence of Armed Robbery Contrary to section 287A of the enal Code, Cap. 16 R.E.2019 and sentenced serve (30) years imprisonment in jail. The appellant conviction and sentence. He has filed of appeal. I will not reproduce them here; in the dealing with the appeal in general. At the the appeal the appellant was unrepresented and the respondent was being served by Ms. Marietha Maguta, learned State Attorney. The appellant had a brief submission that he prays this court to 2 stration No. MC 864 CSC. Later, on the 16th consider the grounds of appeal which are contained in the Petition of Appeal and allow the appeal so that this court sets him free. In reply to what the appellant had just submitted, Ms. Marietha Maguta, the learned State Attorney representing the respondent submitted that she will submit on the appeal basing on the fifth ground of appeal that the trial court erred in law and fact by convicting the appel se was not proved beyond reasonable doubt as required by la The counsel for the responded submitted that the evidence of PW1 at page 8 of the typed proc ings, PW1 testified that he was invaded when hired by the appellant anc er person identified by the name Msomali. He had a motor cycle w e July, 2022, they were inform d that the Motor Cycle has been found at Chipeta tor cycle was dentified positively. That evidence when read together with the testimony of PW3 who testified that the motor cycle was in the house of the person known as Msomali but it is not said whether Msomali was one of the accused persons in court or not. Also, at page 21 of the typed proceedings, the witness testified that the accused were arrested on the road and they had no any exhibit. The 3 evidence of PW3 raises the question why he arrested the accused person. There is doubt as to how he knew those are the accused who committed the offence at kalambo. Looking at Exhibit P5, the motor cycle is said to have been taken from possession by the accused persons. It is doubtful at time the motor cycle was with the accused person while it is with the motor cycle. There is doubt to the . Pw3 testified that the accused said at Kalambo. The shortfalls of the evidence ccused was arrested without clearing all the possible d< prayed that the appeal be allowed based on t s point out. The appellant had nothing to rejoin. d of the trial court and also heard the submission by the learned State orney in regard to the appeal at hand. The evidence on record as per PW1 one Laban S/o Maiko, he is a resident of Kasesya located in Kalambo District. He works as a Bodaboda driver. The motor cycle he drives belong to one Bahati s/o Amani. On the 14th July, 2021 he was assigned by Bahati s/o Amani (PW2) to take a youngman, possibly his (PW2) 4 PW3, about'Elisha to bes/osold Ernest@Chenge. The accused by two persons. They lefterspns makingalso thesaid to have forare Wk. Msomali been arrested at Chipeta. residence But theyhiswere accompanying hotpolice fellow withonthe :arre office, thesaid waymotor they 18k A met with two persons. They suspected them and interrogated them and assistant, to Matai. On his way back to Kasesya he met the appellant and one person 'Msomali' who sought his service to be taken by bodaboda to Kazombwe. These persons, believed to be passengers, turned against him (PW1) and robbed him of the motor cycle. According to the witness he was able to identify the two robbers as the appellant and 'Msomali'. The Motor Cycle was found at Chipeta on the 1C 021 in the house of the person again named as'Msomali'. That is according the testimony of cycle. They met with the police on the way an hey were suspected to be the robbers. According to PW3 he testified that as he was in the office . .'.v. - received information from or person that at Msomali residence there is a motorcyc xj, ■ ’ . arrested them. The prosecution also tendered in court exhibits. That is a motor cycle with registration MC 864 CSC, tendered as exhibit Pl. Also, a seizure note was 5 also tendered in court as Exhibit P5. It is however testified by PW3 who tendered the same that the accused persons were not arrested with any exhibits. However, it is in the Exhibit P5 that the accused did sign the exhibit. It is also in the evidence that the seizure of the motor cycle was taken from the residence of the said 'Msomali' but the owner of the house was not called to testify and also there was no any local leader to witness the ( :~~ Clearly in the defence evidence by the 1st ccused during trial, that was challenged by the accused person According to the record, the 1st accused p n testified that he was at ■ Chipeta looking for chicken for purchasing and also that his involvement in the present case was due to grudges he had with a Police Officer known as Hussein. The second accused, the present appellant, testified that on the 14th July, 2021 he was at Chipeta and not Matai as testified by PW1. After all he was not arrested with the motor cycle alleged that he had stolen. His argument is that how can he be identified at Matai while he was at Chipeta. He went at Chipeta looking for job. The evidence as analyzed herein above shows there was deficiency in identification alleged to have been achieved by PW1 of the 2nd accused but 6 also other evidence adduced does not link the appellant positively with the commission of the offence he is alleged to have committed. Under the circumstances, I agree with the submission by the learned state Attorney that there was no proof of the offence beyond reasonable doubt as required by law. The doubts pointed out are therefore resolved in favour of the appellant. The appeal is therefore allowed nt and conviction by the trial court are quashed and the sentence is should be released from prison uni is ordered accordingly Dated day of May, 2023 WENEMPAZI JUDGE 7