20101222 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM CRIMINAL APPEAL NO. 113 OF 2009 (Originating from Criminal Case No. 605 of 2007 Ilala District Court At Ilala)

MARWA ABDALLAH TENDELE

VERSUS

THE REPUBLIC

JUDGMENT SHANGWA, J. The Appellant Marwa Abdallah Tendele was charged in the District Court of Ilala at Samora with the offence of Armed Robbery c/s 287 A of the Penal Code Cap. 16 R.E.

2002. He was convicted and sentenced to 30 years imprisonment. He was not satisfied with both conviction and sentence. As a result, he appealed to this court. In his Memorandum of Appeal, he raised four grounds. Taken as a whole, these grounds of appeal are to the effect 1 , ~,...' <:k· that there was no sufficient evidence upon which the trial court could base a conviction. At the time of hearing his appeal, the Appellant said that he has nothing to add to his grounds of appeal. It appears that the Appellant is relying heavily on the third ground of appeal where he states that the trial Magistrate was not justified by convicting him on uncorroborated evidence of P.W.1. In reply to the aforesaid ground of appeal, the learned State Attorney, Ms Mwana Amina Kombakoioo submitted that in law there is no particular number of witnesses which is required in any case to prove the facts in issue. In support of her submission, she referred to the case of ALI V. REPUBLIC - Criminal Appeal No. 27 of 1993 Arusha H/C Registry (unreported). She said that the Appellant was known to P.W.1 earlier before the incident and that therefore his evidence was sufficient to prove the offence charged against him beyond reasonable doubt. She 2 contended that although the evidence given by P.W.1 might be said not to have been corroborated, so long as the trial court was fully satisfied that what P. W. 1

said in his testimony was true, it was proper for the trial Magistrate to convict the Appellant basing on his testimony alone. Before the trial court, the prosecution called three witnesses to testify on its behalf namely P.W.1 Rhobi Mtatiro, P.W.2 E.1826 DC Steven and P.W.3 PC Martin. Apart from calling the above mentioned witnesses, the prosecution produced · the statements of the witnesses whom they alleged could not be found namely James Gregory and Oscar Evaristo. P.W.1 Rhobi Mtatiro was the complainant before the trial court. He testified that he lives at Ukonga Mombasa area and that he sells household items and clothes. He said on 24/4/2007 at 8.00 p.m., he was at home with his brothers Oscar and James counting his money and that 3 while doing so, two people entered into his house armed with pangas and ordered them to lie down. He said one of them is the Appellant whom he knew for a long time. He said, he fought with the Appellant and disarmed him the panga he was holding and that in the course of doing so, he was hit on his head by one of his assailants whom he did not know before and sustained severe injury. Furthermore, P.W. l testified that the Appellant took his sales money amounting to Tshs.250,000/= and that after taking his money, both assailants run away. He said, he raised alarm and many people came to his house. He said, he reported the matter to the police at

Mazizini Police Station. He said at the police station, he was given PF3 which he took to Amana Hospital for treatment. He said, on the following day in the morning, the Appellant went to his house. He arrested him and took him to the police 4 . ' " station at Mazizini from where he was charged with this offence. During his cross-examination, P.W.1 told the trial court that the Appellant was familiar with him and that he used to go to his house from where they used to eat food together. This means that both the Appellant and P.W.1 were friends. P.W.2 E 1826 DC Stephen told the trial court that he works at Staki Shari police station and that on 25/4/2007 at 8.00 a.m., he was assigned to investigate this case. He said, by then the Appellant was already under arrest. He said, when he interrogated him, the Appellant told him, that he did not rob the complainant's money but that he was claiming for his properties including clothes from him. Furthermore, P.W.2 said that when he interrogated the complainant Rhobi Mtatiro, he told him that the Appellant robbed Tshs.250,000/= from him and cut him with a 5 ' j panga on several parts of his body. He tendered in evidence the panga which is said to have been used by the Appellant to cut the complainant on several parts of his body. The panga was received by the trial court and admitted as exhibit Pl. In addition to that, P.W.2 told

the court that he gave PF3 to the complainant which he took to Amana Hospital. He tendered it in evidence and the trial court received it as exhibit P2. P.W.3 PC Martin told the trial court that he wrote the statements of one Oscar Erasto and James Gregory. It appears from the trial court's record that the prosecution wanted to call the said persons to testify on its behalf but it was alleged that they could not be found. The trial court was informed that they were on transfer to Dodoma Rural District and that it was difficult to procure their attendance. Thus, the prosecution sought to tender the statements they made to the police through P.W.3 PC 6 ... ,. ,, Martin who wrote down those statements. The prosecution sought to do so under S.34 (B) (2) (a) (c) of the Evidence Act Cap. 6 R.E.

2002. The trial court's record further shows that the Appellant objected to the tendering of the aforesaid statements on grounds that the makers of those statements could be found, but he was overruled by the trial court which held that the objection was misconceived and received the statement made by James Gregory as exhibit P3 and that of Oscar Erasto as exhibit P4. In his statement to the police, James Gregory said that on the date of the incident at 7.45 p.m., he was at the complainant's home where he had gone to give him the daily sales book and that suddenly they were invaded by bandits who were armed with pangas and that one of them was the Appellant. In his statement to the police Oscar Erasto said that on 24/4/2007 at about 7.45 p.m., he was at the 7 ...! complainant's home counting the daily business proceeds, and that in the course of doing so, they were invaded by two bandits and that the complainant fought with one of them who was armed with a panga and that in the course of the fight, the complainant managed to disarm him and that when they shouted for help the bandits run away. In his defence, the Appellant told the trial court that he knows the complainant. He said, he was selling uniforms together with him. That in 2006, he went to Serengeti to visit his mother who was sick. That 1n December, 2006, he came back to Dar es Salaam and went to the complainant's

house to claim for his money but the complainant did not give him his money. That on 23/4/2007, he went to the complainant's house once again to claim for his money. That the complainant told him to go there on the following day. That is on 24/4/2007. He did so at 8. 30 p.m. he said, when he went there, he found 8 a lot of people and asked him as to what was happening. He replied that he had been robbed and attacked by more than 10 people who injured him. He said, he escorted him to Hospital for treatment and that during the night, he slept at the complainant's house and that in the morning, the complainant's brother came at the complainant's house. He said when he asked the complainant to give him his money, the complainant's brother said he is the one who robbed him money and that both the complainant and his brother threatened to kill him. He said, they took him to the police station where he was found innocent, yet still he was taken to court and charged with Armed Robbery. He said, the case was fabricated against him and that the major reason behind was a claim of his money from the complainant which he did not want to pay. In his decision, the trial Magistrate Maweda, RM held that the Appellant is guilty as charged because he was 9 -' properly identified by the complainant who knew him very well earlier before the date of the incident and who took time to fight with him

and disarm him. Maweda, RM was of the view that the prosecution had proved the case against the Appellant beyond reasonable doubt. In my considered opinion, I think that the case was not proved beyond reasonable doubt as expressed by Maweda, RM. My op1n1on 1s based on the following reasons: First of all, it is not possible for persons who are friendly to each other and who are doing business together to turn against each other and commit Armed Robbery. Therefore, in this case, I do not believe that the Appellant who was friendly to the complainant did turn against him and commit Armed Robbery against him. What I believe is the Appellant's version that he was claiming for his money from the complainant who did not want to pay back his money and decided to fabricate a serious case against him 10 'I, ,, which would land him in prison for a long time and avoid his claim of money. Secondly, had the Appellant participated 1n the commission of the offence charged on 24/4/2007 at 8.00 p.m. and confronted with the complainant and robbed him money, he could not have gone to his house on the fallowing day in the morning as stated by him during his testimony before the trial court. I say so because human beings have a tendency of feeling guilty conscious. Third, the complainant stated in his testimony that during the incident many people respondent to his alarm, I believe that among those

people were his neighbours and that when they responded to the alarm, he informed them that one of his assailants was the Appellant who was his friend and that he knew him for a long time but none of those people who responded to his alarm was called to testify to that effect. 11 •. Fourth, James Gregory who said in his statement to the police which was tendered as exhibit P3 that he saw the Appellant during the night of the incident, and Oscar Erasto who said in his statement to the police which was tendered as exhibit P4 that he was present at the time of · the incident, are the complainant's brothers who were closely related to him. Both of them could easily conspire to fix the Appellant. Apart from that, they did not physically appear in court for giving their testimonies upon which they could be cross-examined by the Appellant and the court. They did not appear on pretext that they could not be traced from Dodoma Rural District where they had gone on transfer! For the above mentioned reasons, I quash the trial court's conviction, set aside its sentence of 30 years imprisonment and order that the Appellant should be 12 released from prison hertceforth · unless he 1s otherwise lawfully detained on another matter. ~ A.Shangwa

JUDGE 22/12/2010 Delivered in open court this 22 day of December, 2010 in the presence of the Appellant and Miss Faraja George, State Attorney for the Respondent. ~' A.Shangwa

JUDGE 22/12/2010 13 \