20050603 TZCA Tanga

IN THE COURT OF APPE~l OF TANZANIA

ATTANGA (CORAM: MUNUO, J.A., MSOFFE, J.A. And KAJI. J.A.) CRIMINAL APPEAL NO. 106 OF 2004 HASHIM MOHAMED MBWANA .................................. APPELLANT

VERSUS THE REPUBLIC ...................................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Tanga) (Longway, J.) dated the 11th day of November, 2003 in Criminal Appeal No. 88 of 2002

JUDGMENT OF THE COURT MSOFFE, J.A.: This is a second appeal. In their concurrent findings of fact the courts below were satisfied that on 22/10/2001 at about 20.00 hours at Mhinduro Kauzeni area, Muheza, the appellant stole cash shs. 26,000/=, a pair of shoes valued at shs. 7,000/=, one radio make --- Sony valued at shs. 8,000/=, all total valued at shs. 41,000/=, the property of one Michael Duku and that immediately before or after stealing he used actual violence in obtaining the stolen properties. The complainant PW! Michael Duku testified and stated that on the above mentioned date and time he was on his way home, and that he had shs. 26,000/=, a radio and a pair of shoes. While 2 walking on a bridge he was ambushe~ by a group of three people, including the appellant. He was attacked, wounded by a knife, and his money stolen in the process. In the meantime, PW2 Ramadhani Gamba went to the scene in response to an alarm allegedly raised by PW1. PW2 found PW1 in a "struggle" with the appellant, and bleeding from a cut wound. The appellant was eventually searched by PW3 Godfrey Rubeni and found with two "sticks" of bhang. The appellant's defence was that on the material day and time he was on his way home after visiting a witchdoctor earlier in the day. He met four people who pulled his newly bought bicycle with a view to stealing it. He resisted the attempt and in the process

a fight ensued. In the course of the fight he was stabbed with a knife by one of those people. At some stage, he too seized the knife from the people in question and stabbed one of them who happened to be the complainant. In both the memorandum of appeal and the oral submission before us, the appellant reiterated one main point:- That there was no armed robbery committed by him on the date and time in. issue. Instead, according to him, what. happened was a fight and nothing more or less. (I 3 Mrs. Mutaki, learned State Attorney, declined to support conviction. She argued that the evidence on record did not establish conclusively that the offence of armed robbery was committed. In this regard she urged the following points. One, PWl merely said that his money was stolen without more. Two, the other prosecution witnesses said nothing about stolen money. Three, the charge sheet alleged that money, shoes and a radio were stolen. Yet no positive evidence was forthcoming to establish theft of the same. Without hesitation we are in agreement with Mrs. Mutaki in her submission and observations of the case against the appellant. It is correct that a close look at the entire evidence will show that the offence of armed robbery was not proved. At best PWl testified that he had the above money and properties without going further to say whether the appellant stole them in the encounter on

that fateful day. Likewise, none of the other prosecution witnesses came up with positive evidence to establish that PWl was stolen of the above properties and money. In the absence of such positive, cogent and credible evidence, we are of the view that the appellant1s guilt was not established beyond reasonable doubt. The appellant was,· 4 therefore, entitled to be given the ber::iefit of doubt and be acquitted accordingly. We are of the further view that a look at the evidence in its totality will show that the appellant wounded the complainant (PWl) on that fateful day. Indeed, the appellant admitted that much in his evidence at the trial, when he said:- " ...... I stabbed him with it. I went on fighting with one of them ...... " It is no wonder, therefore, that in the course of making his oral submission before us, the appellant reiterated that what happened on the date in issue was a fight, where in the process PWl was stabbed with a knife, as aforesaid. Indeed, the PF3 which was exhibited at the trial is consistent with the above evidence. The PF3 shows clearly that PWl sustained a cut wound. In this regard the appellant ought to have been convicted of unlawful wounding c/s 228 (1) of the Penal Code. Mrs. Mutaki agrees that much. In the end result, and for the above reasons, we allow the appeal against conviction of armed robbery. We accordingly substitute thereto a

conviction of unlawful wounding c/s 228 (1) of 5 the Penal Code. We note that the ma~imum sentence for the offence of unlawful wounding, a misdemeanour for that matter, is three years imprisonment. The appellant was sentenced on 22/3/2002. In effect, he has. since served three years imprisonment. We · accordingly order his immediate release from prison unless ·lawfully held therein. DATED at TANGA this 3rd day of June; 2005. E.N.MUNUO

JUSTICE OF APPEAL ..,...-----,--. I ./ - ·, /" ' i J. H. MSOFFE \ JUSTICE OF APPEAL \ ..........iiiiii-i~-- . S. N. KAJI --· JUSTICE OF APPEAL I certify that this is a true copy of the original. (S. A. N. A BURA)

SENIOR UTY REGISTRAR