juma so makonge mwansi vs the republic 2023 tzhc 21103 20 september 2023

IN THE HIGH COURT OF TANZANIA MUSOMA DISTRICT REGISTRY AT MUSOMA CRIMINAL APPEAL NO. 128 OF 2021 (Arising from Criminal Case No. 21 of2020 of the District Court of Serengeti at Mugumu) BETWEEN JUMA S/O MAKONGE © MWANSI..................... APPELLANT VERSUS THE REPUBLIC.......................... RESPONDENT JUDGMENT 13* & 2Cfh September, 2023 M. L. KQMBA, J.: Juma s/o Makonge @ Mwansi was convicted over the offence of armed robbery contrary to section 287A of the Penal Code, [Cap 16 R..E 2019] and sentenced to thirty years imprisonment. In brief, facts of the case go like this; On the night of 12/01/2020 (02:00 hours) at Masangura village area within Serengeti district, the appellant and another person who is not subject of this appeal went to the house of Makonge Mwansi (PW1) who is the appellant's farther, they break the door by using a big stone (Fatuma) and forcefully entered into the house where the victim and his wife (PW2) were sleeping. Accused persons hit PW1, Page 1 of 10 Chacha had a machete and club which was used to threaten PW1 after his resistance to give money obtained after he sold his cattle in public auction. Appellant used club and chair to hit PW1 who became unconscious and he was taken to hospital. Accused persons, that is appellant and his company are biological son of the victim. At the hospital victim was treated by PW7, he was admitted and PF3 was filed and tendered in court as Exh. PE 4 showing the victim had wounds in his head and was admitted. PW3 informed the trial court that he heard an alarm at night and it was from his father's house. When he responded he found his father unconscious and his step mother informed him that it was Chacha Makonge and the appellant who robbed the victim and took Tsh 3,600,000/ and PW2 a police officer received Chacha Makonge at the police station who confessed to commit crime in the night of 11 to 12/01/2020. He recorded caution statement which was admitted as Exh PE 1. On these accounts, the trial Magistrate was satisfied and convict the appellant and sentence him to 30 years imprisonment. Aggrieved by the said decision, appellant is here searching for justice in way of appeal equipped with five (5) grounds of appeal which reads as follows; Page 2 of 10 1. The trial magistrate erred in law and fact to convict and sentence the appellant by admitting the evidence which self - contradictory and uncorroborated by prosecution witness which let him to appellant conviction. 2. THAT, the conviction was wrongly based on a poorly dock identification which was not supported by the appellants prior description offered and prove to the issued any first receipts during first felony report. 3. THAT, the Identification of the appellant was made under unfavorable condition which was not supported by essential and salutary elementary regarding positive identification. 4. THAT, the presiding court erred in law and fact by failure to consider the appellant strong defense instead relied on prosecution case which not only was dubious but also it was not corroborated. 5. THAT, the trial court erred to convict and sentences appellant while prosecution side failed to prove the case beyond reasonable doubt. When the matter was scheduled for hearing, the appellant was remotely connected from Tabora 'B' Prison, stand solo without representation while Republic was represented by Mr. Abdulkher Athman, State Attorney. , When appellant was given the floor, he prayed this court to adopt his 1 ground of appeal and submitted that he was at the scene as he was at his Page 3 of 10 home in Masangura village and he just went to hospital to make sure his father is well treated by donating some amount of money and it was when he was arrested. He prayed this court to allow the appeal. Mr. Abdulheri joined 1st and 5th grounds that it was on 12/01/2020 as testified PW1 when he was asleep in his house with his wife, heard sound of Fatuma stone and two young men entered and he managed to identify them by their names including Juma Makonge Mwansi (appellant) and another who is not subject of this appeal (Chacha). It was his submission that PW1 explained he used solar bulb (energy) and he said the accused were his biological sons which during cross examination accused did not dispute. That being the fact he know them. He submitted that both accused asked him to give them money when refused they started to assault him at the head and he became unconscious. The appellant had a machete together with other weapons including club they beat victim till when he surrendered his money Tsh. 3,600,000/= which was the proceed after selling of his cows. State Attorney said the testimony of PW1 was corroborated by the Statement of the Ghati w/o Makonge, the wife of the victim which show Page 4 of 10 that during the fateful night Ghati heard the sound of Fatuma stone then two young men entered and she identified them that they are sons of his husband (victim) and mentioned their names. Victim explained that the appellant, Juma Makonge had machete and assault the victim till when he mentioned where he hides the said money which was Tsh. 3,600,000/=. This witness made an alarm and responded by many people including PW3 who is Joseph Makonge, son of the victim. They took victim to the Nyerere DDH for treatment. The victim was unconscious. Further State Attorney said the evidence of PW2 DC Israel corroborate what happened as the witness informed the court that Chacha surrendered himself to police and confirmed to attack the house of his father together with his brother who is the appellant in this case and took Tsh.3,600,000/=. He said caution statement was recorded as Exh. PEI and was admitted. PW3 who responded an alarm informed the court that the appellant was identified by the victim while he was in hospital and the appellant was arrested basing on identification done by the victim while at hospital. Mr. Abdulher submitted that the offence which was charged the appellant is under S. 287 A of Penal Code, Cap 16 [R.E. 2022] which is armed robbery and there are elements to be proved in that offence. 1st to prove Page 5 of 10 stealing, use of weapons and last is threat or injury that there was a use of force directed to a person. It was his submission that evidence from record is clear that Tshs 3,600,000/= was taken by appellant and they used fatuma stone as explained by witness. He said bandits entered in the house while carrying weapons as the victim was assaulted by machete as explained by PW7, an officer from DDH who received the victim on date 12/01/2020 and after treatment he filled PF3 which was admitted as PE4. According to State Attorney, after proving all ingredients the issue then is who committed that offence. He answered that the evidence is clear as they are sons of the victim who know them and explained his room had solar light. Moreover, he said the second accused mentioned the appellant. Mr. Abdulheri concluded that identification was proper as the victim know accused persons before. He said by this submission grounds number 3rd and 2nd about favourable condition for identification also has been addressed. On the 4th ground about defence, State Attorney was of the submission that the trial court was correct to do what was supposed, it evaluated the evidence and then analyzed. The issue as raised by the appellant that he was not around on the time the crime was committed was not explained Page 6 of 10 during trial and it is an afterthought, the defence of alibi was not said during trial. It was his prayer that the appeal to be dismissed as it lacks merit and the punishment as entered by trial court to be uphold. During rejoinder, appellant insisted she was not around and prayed for his release. I have serenely considered the rival arguments by the parties to this appeal in the light of the petition of appeal, the grounds of appeal as well as the substance of the oral submissions in the hearing of the appeal. I am now in a position to confront this appeal for determination as appearing in the grounds of appeal raised and in doing so, I will join all grounds of appeal and come up with one ground on whether prosecution managed to prove the offence beyond reasonable doubt. At the outset, let it be known that in criminal cases, it is upon the prosecution to prove its case against an accused person beyond reasonable doubt. Basing on custom that court record should be respected as was in Halphan Sudi vs. Halieza Chichiri (1998) TLR No. 527, trial record show that wife of the victim was an eye witness as evidenced in Exh PE3. Ghati w/o Makonge recorded statement in which she explained she saw Page 7 of 10 appellant and his young brother who are sons of the victim, invaded their house while sleep and attack the victim. She explained she knew bandits as they are sons of the victim (Watoto wa mke mkubwa). As the door was broken by stone, it remains open and she managed to see bandits by the light from the moon. She identified bandits by names immediately as she knows them as was provided in Samwel Nyamhanga vs. Republic Criminal Appeal No. 70/2017 CAT Mwanza when referring the decision of DPP vs. Jafari Mfaume Kawawa (1991) TLR No. 149. According to this witness, bandits assault the victim and demand money and managed to take Tsh. 3,600,000/ and left the victim unconscious. Appellant was identified and recognized as he is son of the victim and therefore, he was familiar to victim and his wife Ghati whose statement was admitted without objection. As indicated earlier that the appellant was charged with the offence of armed robbery. The section reads as follows; Section 287 A of the Penal Code provides; 'A person who steals anything, and at or Immediately before or after stealing is armed with any dangerous or offensive weapon or instrument and at or immediately before or after stealing uses or threatens to use violence to any person in order to obtain or retain Page 8 of 10 the stolen property, commits an offence of armed robbery and shall, on conviction be Hable to imprisonment for a term of not less than thirty years with or without corporal punishment.' Further, it was through the caution statement of co accused who is not part of this appeal explained how the co accused together with appellant confronted their father and assault him demanding for the money which they managed to grab. From record stealing occurred as appellant and his fellow grabbed 3,600,000/= from the room of victim, victim was injured in various party of the body and was hospitalized as testified by PW 7 and evidenced by Exh PE4. Moreover, victim identified the appellant while in hospital and was:arrested 4 . fc. on the spot. Victim and Ghati w/o Makonge were eye' witness- whose evidence is the best as is under section 62 of the Evidence Act, Cap 6. See also Daniel Malongo Makasi and 3 Others vs. Republic, Criminal. Appeal 346 of 2020. Considering circumstance of the case at hand, basing on the nature of the offence charged the appellant, what was supposed to be proved by prosecution under section 287A is that there is something stolen which is Page 9 of 10 money. Further, there was the use of weapon as PW1 explained he was beaten by club when refused to surrender, Ghat explained they used machete and was directed to the victim as he was found with injury caused by sharp object. I find prosecution managed to prove the offence beyond reasonable doubt as required in criminal cases and therefore the appeal lacks merit. I have no other option than to dismiss the appeal as I hereby do. Dated at MUS this 20th Day of September, 2023 0 w M. L. KOMBA & JUDGE Judgement De in chamber in the presence of the appellant who was remotely connected from Tabora B Prison Mugumu and in the presence of Joyce Matimbiwi, State Attorney. M. L. KOMBA JUDGE 20 September, 2023 Page 10 of 10