the director of public prosecutions vs athuman yasin mjase and another 2023 tzhc 20718 31 august 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF SONGEA AT SONGEA CRIMINAL APPEAL NO. 7 OF 2023 THE DIRECTOR OF PUBLIC PROSECUTIONS ………………………… APPELLANT VERSUS ATHUMAN YASSIN MJASE ………………………………………… 1ST RESPONDENT ABAS MOHAMED SWALEHE ……………………………….……… 2ND RESPONDENT (Appeal from the judgment of the District Court of Tunduru at Tunduru in Criminal Case No. 102 of 2022) JUDGMENT 3rd & 31st August, 2023 KISANYA, J.: The Director of Public Prosecutions preferred this appeal against the judgment of the District Court of Tunduru at Tunduru (the trial court) in Criminal Case No. 102 of 2022 delivered on 9th November, 2022. In that case, the respondents herein, Athuman Yassin Mjase and Abas Mohamed Swalehe, were the 1st and 2nd accused persons, respectively. They stood charged with the offence of armed robbery contrary to section 287A of the Penal Code [Cap. 16, R.E. 2019]. It was alleged that, on 21st February, 2021 at Mkasale Village within Tunduru District in Ruvuma Region, the respondents did steal one mobile phone make ITEL valued TZS 45,000/=, cash money TZS 40,000/= and clothes all 1 valued at TZS 85,000/=, the property of Hassan Abdallah Mautila and that immediately before such stealing they assaulted him by using a machete in order to obtain those properties. The respondents pleaded not guilty to charge. In a bid to prove its case, the prosecution called six witnesses namely Hassan Abdallah Mautila (PW1), Rajabu Halifa Rajabu (PW2), Joseph Many Ngo’mbo (PW3), G3959 D/CPL Swalehe (PW4), Ally Mbaraka Chande (PW5) and Salim Amani Mfugahema (PW6). The prosecution also relied on three exhibits to wit, referral letter from Mkasale Health Centre (Exhibit P1), sketch map of the crime scene (Exhibit P2) and PF3 (Exhibit P3). From the evidence on record, the prosecution case may be summarized as follows: On 21st February, 2021 around 0400 hours, the victim, Hassan Abdallah Mautila (PW1) was heading to his house from his farmland. He met the respondents who stopped him. They were holding a machete and a gallon of petrol. PW1 ran away from the respondents. However, the respondents managed to arrest him. It was PW1’s testimony that the 1st respondent covered his mouth and undressed his clothes which had cash money to the tune of TZS 40,000/= and one mobile phone make ITEL valued at TZS 45,000/=. PW1 stated that when he attempted to flee from the respondents, he was cut with 2 the machete on his back. In consequence, PW1 lost his consciousness. Upon regaining the consciousness, he walked to his house and arrived at the village around 0600 hours. On his way to the village, the victim met PW2 who took him to Mkasale Health Centre for medical treatment. He was attended by PW3 who later on referred him to Tunduru District Hospital as shown in Exhibit P1. The matter was then reported to Tunduru Police Station. PW4 was assigned to investigate the matter. The victim was issued with PF3 (Exhibit P1) which he presented to Tunduru District Hospital. This time, the victim was attended by PW6 who filled in the PF3. He was admitted to Tunduru District Hospital for eight (8) days before being referred to Ndanda Hospital for further medical treatment. In his evidence, the investigator (PW4) stated to have recorded the statement of PW1 who named the respondents as his assailants. It was also his evidence that, he recorded the statements of PW3 and PW6 who attended the victim on different occasions. He also drew the sketch map of the crime scene which was admitted in evidence as Exhibit P2. Another witness is PW5, a village executive officer of Mkasale village. It was his testimony that, on the fateful day, PW2 reported the matter to him and that he requested for the medication form. PW5 stated to have issued the said 3 medication form. He further stated that when he went to Mkasale Health Centre, he was told that the victim had been transferred to Tunduru District Hospital. On the foregoing evidence, the trial court found the respondents with a case to answer. Thereafter, each respondent gave evidence on oath. They distanced themselves from the offence preferred against them. At the conclusion of the trial, the trial court held that the prosecution had not proved its case beyond all reasonable doubts. In the end result, both respondents were acquitted. That decision aggrieved the appellant who opted to appeal to this Court. At first, the appellant listed four grounds of appeal. However, during the hearing of this matter, the appellant’s counsel dropped the fourth ground of appeal. Thus, this Court was asked to consider the following grounds of appeal: One, the trial court erred in law and fact to hold that the prosecution did not prove its case beyond reasonable doubt. Two, the trial court erred in law and fact to disregard the evidence of PW1. Three, the trial court erred in law and fact to hold that there was contradiction in the prosecution witnesses’ evidence. 4 At the hearing of this appeal which was conducted vide video conferencing, the appellant was represented by Mr. Madunda Mhina, learned State Attorney, while the respondents appeared in persons, legally unrepresented. Parties were also implored to address the Court on whether the charge and evidence were not at variance on the stolen properties. In his submission, Mr. Mhina combined the first and second grounds of appeal. He prefaced his submission by restating the principle that the prosecution is duty bound to prove its case beyond all reasonable doubt and that the burden of proof cannot shift to the accused person. It was his further argument that, in terms of section 287A of the Penal Code, the offence of armed robbery is proved by establishing that; one, there was stealing; two, immediately after stealing the accused person was armed with a dangerous or offensive weapon or robbery instrument; and three, the accused person used or threatened to use actual violence in order to obtain or retain the stolen property. To reinforce his argument, Mr. Mhina cited the case of Kisandu Mboje vs R, Criminal Appeal 353 of 2018, [2022] TZCA 425 (14 July 2022). The learned State Attorney went on submitting that the said ingredients were duly proved. He pointed out that the act of stealing was proved by PW1 who testified to have been arrested by the respondents and robbed him cash 5 money to the tune of TZS 40,000/=, one mobile and clothes. It was his further contention that, PW1 stated that he was assaulted by the respondents and that the said evidence was supported by PW3 and PW6 who attended the former and PW2 who was the first person to assist the victim. Making reference to the case of William Ntumbi vs Director of Public Prosecutions, Criminal Appeal No. 320 of 2019, [2022] TZCA 72 (25 February 2022), he maintained his stance that the case was proved beyond all reasonable doubts. Responding to the issue raised by the court, Mr. Mhina submitted that, there was no variance between the charge and evidence. It was his contention that all stolen properties listed in the charge sheet, including the clothes feature in the evidence of PW1. With regard to the third ground of appeal, Mr. Mhina faulted the trial court for holding that there was contradiction on the prosecution’s evidence in respect to the time at which the offence was committed and the issue whether the victim was attended at Mkasale Health Centre. He submitted that it is not a legal requirement that the time of commission of the offence must be stated in the charge sheet. He further submitted that, even if the time is not correctly stated in the charge sheet, such defect is curable as provided for under section 234(3) of the Criminal Procedure Act, Cap. 20, R.E. 2022 (the CPA) and thus, 6 the charge sheet need not to be amended due to the omission on the time of commission. He was of the view that the victim testified that the offence was committed at 1700 hours. As for the issue whether the victim was attended at Mkasale Health Centre, Mr. Mhina submitted that PW1 stated to have been referred to Tunduru District Hospital from Mkasale Health Centre. It was his further submission such fact is reflected in the evidence of PW3 and PW4 and the referral letter (Exhibit P1). From the foregoing, the learned State Attorney submitted that the contradiction, if any, did not go to the root of the case. Citing the case of Oswald Mokiwa @Saidi vs R. Criminal Appeal No. 190 of 2014 (unreported), he urged this Court to consider that the omission to mention time of the commission of the offence did not prejudice the respondents. Submitting in alternative, the learned counsel prayed for this Court to make an order for amendment of the charge sheet. In conclusion, he moved the Court to allow the appeal. Both respondents resisted the appeal. The 1st respondent was firm that all grounds of appeal are devoid of merit. He submitted that the prosecution case was not proved beyond all reasonable doubts and that, the prosecution 7 witnesses contradicted each other. Therefore, the 1st respondent asked this Court to determine the appeal in accordance with the law. On his part, the 2nd respondent contended that the decision of the trial court was in accordance with the law. He contended that the evidence of PW1 did not prove the charge laid against them (respondents). In his rejoinder, Mr. Mhina reiterated his submission in chief that the prosecution did prove its case beyond all reasonable doubt. Having dispassionately reviewed the record and the parties' oral submissions, I am now in a position to resolve the main issue, whether this appeal has merit. First for consideration is the first limb of the third ground on the time of commission of the offence. As rightly observed by the learned State Attorney, the trial court considered, among others, that, PW1 did not disclose the time at which the offence was committed and also that, the said time was not stated in the charge sheet. I agree with Mr. Mhina that, it is not a legal requirement that the time of commission of the offence must be stated in the charge. Pursuant to that case of Mathias Samwel vs R, Criminal Appeal No. 271 of 2019 (unreported) which was the basis of the trial court’s decision, the 8 prosecution is required to prove that the offence was committed on the specific time where the specific time is mentioned in the charge sheet. Given that the charge sheet in this case at hand did not mention the time of commission of the offence, the decision relied upon by the trial court was distinguishable. Furthermore, reading the evidence PW1 and PW2 as a whole, the offence was committed around 1700 hours. Thus, the trial court erred in holding that PW1 did not disclose the time at which the offence was committed. The second limb of the third ground is contradiction on the issue whether the victim was referred to Tunduru District Hospital from Mkasale Health Centre. According to the trial court, PW3 and PW6 contradicted each other on that fact. Having reviewed the evidence of PW3 and PW6, I see no contradiction on the said issue. PW3 is a medical officer stationed at Mkasale Health Centre. He testified to have attended the victim and referred him to Tunduru District Hospital. To supplement his evidence, PW3 tendered the referral letter (Exhibit P2). On the other hand, PW6 had this to say on that issue: “I remember that at 0800 hours PM in the night I received a patient aged 41 years one Hassan Mautila from Mkasale Health centre, the victim were (sic) brought by his relative one Rajabu Halifa.” 9 In view of the above excerpt, PW6 was firm that the victim was hailing from Mkasale Health Center. Therefore, had the trial court analyzed properly the evidence of PW3 and PW6, it would not have held that the said witnesses contradicted each other on the issue whether the victim was referred to Tunduru District Hospital from Mkasale Health Centre. From the foresaid reasons, I find merit in the third ground of appeal raised by the appellant. Reverting to the first and second grounds of appeal and the issue raised by the Court, the issue is whether the prosecution proved its case beyond all reasonable doubts. As rightly submitted by Mr. Mhina, theft is one of the elements of the offence of armed robbery preferred under section 287A of the Penal Code. Other elements are use of dangerous or offensive weapon or robbery instrument against at or immediately after the commission of the offence; and that, the use of dangerous or offensive weapon or robbery instrument must be directed against a person. See the case of Kisandu Mboje (supra) in which the Court of Appeal cited its decision in the case of Shabani Said Ally vs. R, Criminal Appeal No. 270 of 2018 (unreported), where it emphasized that: 10 "It follows from the above position of the law that in order to establish an offence of armed robbery, the prosecution must prove the following: 1. There must be proof of theft; see the case of Dickson Luvana v. Republic, Criminal Appeal No. 1 of 2005 (unreported). 2. There must be proof of the use of dangerous or offensive weapon or robbery instrument against at or immediately after the commission of the offence; 3. That, use of dangerous or offensive weapon or robbery instrument must be directed against a person. See Kashima Mnandi v. Republic, Criminal Appeal No. 78 of 2011 (unreported)" As stated earlier one, Mr. Mhina was of the view that the above ingredients were duly proved. According to him, the element of theft was proved by PW1. However, PW1 is recorded to have testified as follows: “…the 1st accused tighted (sic) my mouth and undressed me, there were cash Tsh. 40,000/= and one mobile phone made (sic) ITEL valued at TZS 45,000/=. The 1st accused person told me that “were unafanana na sura ya mtoto wangu” by that time the 2nd accused tighted (sic) me at the back of her body. I struggled to untie from them. I then decided to run away but I felt (sic) down and they cut me and continued to cut me with machete at my back. I decided 11 to stop them and they continue (sic) to cut me with machete…I felt unconscious, thereafter became conscious when I wake up and decided to walk up and went home.” It is glaring from the above evidence that, the victim did not state whether his assailant stole his cash money, mobile phone and clothes. He just stated the respondents undressed him and that the cash money and mobile phone were in his clothes. Considering further that the victim regained consciousness at the time when his assailants had left, the victim was not in a position of knowing whether the said properties were taken by his assailants or another person. I have further considered that PW2 was the first person to meet the victim after the incident. He stated that the victim told him that he had been injured by the respondents. Nothing to indicate that the issue of theft was disclosed to PW2. If the accused person stole the victim’s properties, it is not known as to why that fact was not disclosed to PW2. Furthermore, PW4 who investigated the matter stated on oath that the victim recorded to have been attacked by the respondents who took one mobile phone and cash money to the tune of TZS 40,000/= which were in his (victim) pocket. In other words, PW4’s evidence does not show whether the clothes appearing in the charge sheet were reported to have been stolen. If it is taken that the clothes were not stolen, there was a variance between the particulars of 12 the charge sheet and the evidence. In the case of Massota Jummane vs R, Criminal Appeal No. 137 of 2016 (unreported), it was held that contradiction on what was actually stolen goes to the weight of evidence which is not in support of the charge. In view the foregoing analysis, I find that the element of theft was not proved by the prosecution. I have also noticed that the trial court considered that the victim and the respondents had grudges. It turned out that the 1st respondent was accusing him (the victim) of having love affairs with the former’s wife. This fact is reflected in the evidence of PW1. That finding goes to the root of the case on reliability of PW1 and was not contested in this appeal. In the final analysis, save for the third ground which is allowed, this appeal has no merit. I hereby dismiss it. DATED at SONGEA this 31st day of August, 2023. S.E. KISANYA JUDGE 31/08/2023 13 Judgment delivered through video conference this 31st day of August, 2023 in the presence of Mr. Madundo Mhina, learned State Attorney for the appellant and the respondents. Right of appeal explained. S.E. KISANYA JUDGE 31/08/2023 14