kulwa kasema shija and 3 others vs the republic 2023 tzhc 22386 12 october 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF TABORA AT TABORA DC. CRIMINAL APPEAL NO. 11 OF 2023 (Originating from Criminal Case No. 113 of 2020 in the District Court of Nzega.) 1. KULWA S/O KASE MA @ SHIJA > 2. JOSEPH S/O SALUM MPANGABURE @ KAPUYA ............. APPELLANTS 3. KIZWALO S/O KULWA 4. M ABU LA S/O MHOJA VERSUS THE REPUBLIC RESPONDENT JUDGMENT Date of Last Order: 11/09/2023 Date of Delivery: 13/10/2023 MATUMA, J. In the District Court of Nzega, the appellants herein were arraigned for the offences of Armed Robbery and Grievous Harm contrary to sections 287A and 225 respectively of the Penal Code Cap 16 R.E 2019. It was alleged that the appellants on 27/10/2020 at Ukombe Katautiga area within Nzega District stole cash money amounting to Tsh. 100,000/= the property of Salmon Bundala Maige but before and after such stealing, they used actual violence and offensive weapons to retain the said property and on the very day, they caused grievous harm to the victim on various parts of his body by using a panga. i Upon a full trial, the appellants were all convicted for both offences and sentenced to serve thirty (30) years and twelve (12) months imprisonment for the offence of armed robbery and grievous harm respectively. Aggrieved by both the convictions and sentences the appellants then appealed to this Court with seven grounds of appeal which established one major complaint that; the prosecution case was not proved against them reasonable beyond doubts. At the hearing of this appeal, the appellants appeared in person while Nurdini Mmary learned State Attorney represented the respondent. All the appellants preferred the State Attorney to make his submission first. In his submission, the learned state attorney conceded that the prosecution evidence did not prove the offences beyond reasonable doubts. He averred that the trial court relied on the items allegedly seized at the premises of the 1st and 2nd appellants to wit; pangas, clubs and knives but such exhibits had no link to the offence at hand. The learned State Attorney further asserted that according to the victim's evidence, he didn't identify even a single appellant at the crime scene as the culprit to the crime. He also argued that the contents of the cautioned statements of the 1st and 2nd appellants do not establish the offence of armed robbery. The statements show that the appellants confessed to have invaded the victim without taking anything from him. The learned state attorney insisted again that the cautioned statements were retracted and thus they could not be relied upon without the trial court to warn itself and as a matter of developed principle, the retracted confessions required corroborations. 2 He argued alternatively that if we have to rely on the two confessions then we have to maintain the conviction of the two appellants on grievous harm and their sentence be enhanced but acquit them on the offence of armed robbery. In regard to the 3rd and 4th appellants the learned State Attorney argued for their acquittal since they were merely incriminated by the confession statements of their fellow appellants and there is no corroborative evidence against them in both counts. He referred this court to the case of Flano Alphonce Masalu and4 Others vs The Republic, Criminal Appeal No. 366 of 2018 in which the fate and status of a retracted confession was discussed to the effect that a retracted confession can be relied upon to convict provided that the trial court warns itself that the confession is nothing but the Only truth. Replying to the State Attorney's submissions, the 1st and 2nd appellants joined hands with the learned state attorney that the prosecution case was not proved against them to the required standard. They also pressed for acquittal on the grievous harm offence on the ground that their cautioned statements were not given by them. The 3rd and 4th appellants had nothing more than agreeing with the learned state attorney that they deserve an acquittal. Upon hearing the submissions from both parties and thoroughly going through the proceedings of the lower court, I entirely agree with the learned state attorney that the prosecution case was not proved to the required standard. The cautioned statements of the 1st and 2nd appellants, exhibits P5 and P3 respectively have nothing to do with the armed robbery offence as rightly argued by Mr Nurdlni Mmary learned State Attorney. This is because even if the staierrients were to be relied then the appellants stated categorically that they invaded the victim but did not steal anything from him. The offence of armed robbery is incomplete when theft is not done in the cause of the invasion. In exhibit P5, the 1st appellant is recorded to have confessed that his fellow assailants caused grievous harm to the victim but did not steal anything from him, and I quote; "Katika pulukushani yule mwenye mji alituponyoka na kisha kutoka nje, hivyo Hibidi na sisi tutoke nje ndipo nilimkuta Ngasa na Shija wakimshambulia yule mwenyeji kwa kutumia panga na rungu. Walimshambulia sehemu mbalimbali za mwili kwa ujumla, pia mimi nakumbuka wakati anachomoka ndani nilimpiga na rungu /akin! nilimkosa..........mwenyeji aiikimbia nakuanza kupiga keieie kuwa kavamiwa ndipo na sisi Hibidi tuanze kuondoka kwani hatukuweza kupata kitu chochote...... " The same applies to the 2nd appellant who was recorded to have confessed that they only caused grievous harm, his confession statement reads; ..... alituponyoka m/e ndani na kuchoropoka kutoka nje, wale waliokua nje.......... wakamdhibiti asiwatoroke ndipo Ngassa alipomkata panga kichwani na mikononi. Hapo aiipiga keieie kuomba msaada na hatukupata kitu ikabidi tushtuane kuwa tumwache hapo na sisi tukaondoka.... " From such quotations, as rightly argued by the learned state attorney, if at all the Cautioned statement were to be relied then they would be relevant to the grievous harm offence and not armed robbery. The Court of Appeal in the case of Rhino Migere v.Republic, Criminal Appeal No. 122 of2002 held that; "...for a statement to qualify for a confession it must contain the admission of all the ingredients of the offence charged as provided for under section 3 (c) of the Evidence Act, 1967..." The same position was also held in the case of Alex John vs The Republic, Criminal Appeal No. 129 of2006 at page 9 where it was held that; "Regarding the alleged confession, after objectively reading the so- called caution statement, which contains more in-puts from PW4 than from the appellant, we are satisfied that it never contained any confession relating to the robbery committed at the house of PW2........ It could not, therefore, be used to prove the guilt of the appellant." In the case at hand, the cautioned statements of the 1st and 2nd appellant do not contain any ingredient of armed robbery and thus ought not to have been relied upon to convict the appellants with the offence of armed robbery. Also as, as well rightly argued by the learned state attorney, it is a settled principle that it is dangerous to act upon a repudiated or retracted confession unless it is corroborated, the court may act upon such confession if it is satisfied that the confession could not, but be true. See the cases of Kashindye Meli vs Republic [2002] TLR 374, Hamisi Meure vs Republic1993 TLR 213 and HemedAbdallah vs Republic [1995] TLR 172. The only evidence that purportedly corroborated the appellants' cautioned statements was exhibit Pl collectively which were sport bicycles, panga, a knife, a masai red sheet and a shirt with blood stains. The prosecution however failed to link exhibit^! to the offences charged. The offence of armed robbery was thus not proved and all the appellants are hereby acquitted of the same. The offence of grievous harm cannot as well stand as it was wrongly charged contrary to the principle prohibiting charge sheet duplicity. Grievous harm when committed in the course of armed robbery, the same cannot stand alone. Armed robbery entails all; the use of violence by offensive weapons that might include grievous harm. The prosecution cannot therefore obtain conviction on the charge sheet which duplicated the offences. They ought to have ascertained what offence was exactly committed on the available evidence. In the circumstances, I find that the prosecution failed to prove their case beyond reasonable doubts. Therefore, the appellant's appeal gains merit and is therefore allowed. Their conviction is hereby quashed and the sentences meted against them in both counts set aside. I order their immediate release from custody unless otherwise lawfully held. 6