20170823 TZHC Mwanza

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IN THE HIGH COURT OF TANZANIA

IN THE DISTRICT REGISTRY

AT MWANZA HIGH COURT CRIMINAL APPEAL NO. 60 OF 2017 (Original Criminal Case No. 125 of 2015 of the District Court of Musoma District at Musoma} RAMADHANI RICHARD ------------------------------------APPELLANT

VERSUS THE REPUBLIC -------------------------------------------RESPONDENT

JUDGEMENT Ebrahim, J.: The appellant in this appeal was charged and subsequently convicted with the offence of armed robbery contrary to section 287 A of the Penal Code, Cap 16, R.E.

2002. He was sentenced to a mandatory sentence of 30 years imprisonment, 24 strokes and ordered to pay Tshs. 500,000/= as compensation to the victim after completion of his sentence. It was prosecution case that the appellant had on 8th August 2015 at Kagongo Island stole from one Petro Genya @Joseph fish valued at tshs. 250,000/- and 1 mobile phone make Itel valued at Tshs. 85,000/-. It was 1 alleged further that the appellant immediately before or after such stealing used a panga and a piece of wood to injure Petro Genya@ Joseph. The brief facts of the case are that on 08 th August 2015 around 0700hrs, PW1 and his colleagues Augustus Julius and one Wamwai were fishing. There after around 1030hrs a boat with 5 people including the appellant appeared and ordered them to surrender their fish. PW1 refused to off load the fish that was when the appellant beat PW1 with a piece of wood and robbed them fish and one mobile phone and ran away. PWl and his colleagues went to the sub ward chairman and then reported the matter to the Village Executive Officer. On 10th August 2015 he went to the police and given PF3 for treatment. Accused was arrested on 7th March 2016. The appellant was aggrieved by conviction and sentence and he lodged an appeal in this Court raising three grounds of appeal that:- 1. THAT, the trial magistrate had erred in law and facts to rely on incredible witness (PW1) as single witness, in so far as corroboration was lacking.

2. THAT, unexplained delay for retrieval and arrest of the appellant - i.e. 08/08/2015 - 07/03/2016 almost six (6) months, renders the identification of appellant by PW1 dubious. 2 3. THAT, the trial magistrate based a conviction on a case which was not proved beyond reasonable doubts. At the hearing of the appeal, the appellant appeared in person, unrepresented and the Republic was represented by Ms. Bibiana Kileo, learned Senior State Attorney. The appellant adopted his grounds of appeal and being a lay person in law had nothing much to add to elaborate his grounds of appeal. He said that he was not satisfied with the decision of the District Court. Responding to the grounds of appeal, Ms. Kileo supported conviction and sentence. Submitting on the issue of the evidence of a single witness, Ms. Kileo relied on the provision of Section 143 of the Evidence Act that no required number of witnesses is needed to prove a fact. She stressed that the important thing is the credibility of a witness which the trial Magistrate satisfied himself that PWl was credible. She stressed also that there is no law that requires corroboration on one witness. She contended further that the appellant and the victim, PWl knew each other and the incident occurred during the day lasting about 30 minutes. Hence there was no mistake on identification. 3 Responding on the second ground of appeal, Ms.

Kileo stated that the delay 1n apprehending the appellant was due to the fact that the appellant escaped after the incident. PWl explained that fact at page 11 of his testimony, said Ms. Kileo. Challenging the 3rd ground of appeal that the case was not proved beyond reasonable doubt, Ms. Kileo said that PWl explained about the invasion and that he recognised the appellant. She added that PW2 who tendered PF3 (exhibit Pl) confirmed that PWl was injured. Moreover PW3 also confirmed that the appellant committed the offence. She was therefore of the firm view that prosecution proved the case beyond ---- -·· reasonable doubt and the appeal should be dismissed. In brief rejoinder, the appellant admitted to know PWl because he was his Chairman. He however challenged the fact that PWl did not bring people that he was with as witnesses nor the Chairman that he went to report the incident to. He reiterated his prayer that appeal be allowed. The appellant has on the first ground of appeal, challenged the reliance of a single witness (PWl) by the trial Magistrate to convict him 4 without corroboration. In essence he has questioned the credibility of the said witness. In this case the main pieces of evidence that formed the basis of conviction of the appellant were the evidence of PWl, exhibit Pl and Exhibit P2 which was tendered by PW4. Further, this is a first appeal. The first appellate

court is obliged without fail to subject the ''entire evidence to an objective scrutiny and arrive to its own findings of facts'~ See the case of Charles Mato Isangala and 2 Others V The Republic, Criminal Appeal No. 308 of 2013. I shall begin to address on exhibit P2 the statement of the witness called Gustus Julius which was tendered by PW4. PW4 testified before the Court that he recorded the statement of the said witness under section 34B (2) (c) of the Evidence Act. Section 348 (1) and (2) of the evidence Act, Cap 6, RE 2002 provides that: ''348. -(1) In any criminal proceedings where direct oral evidence of a relevant fact would be admissible, a written statement by any person who is, or may be, a witness shall 5 subject to the following provisions of this section be admissible in evidence as proof of the relevant fact contained in it in lieu of direct oral evidence. (2) A written statement may only be admissible under this section- {a) where its maker is not called as a witnes~ if he is dead or unfit by reason of bodily or mental condition to attend as a witness, or if he is outside Tanzania and it is not reasonably practicable to call him as a witness, or if all reasonable steps have been taken to procure his attendance but he cannot be found or he cannot attend because he is not identifiable or by operation of any law he cannot attend/ {b) if the statement i~ or

purports to be/ signed by the person who made it/ {c) if it contains a declaration by the person making it to the effect that it is true to the best of his knowledge and belief and that he made the statement knowing that if it were tendered in 6 evidence, he would be liable to prosecution for perjury if he wilfully stated in it anything which he knew to be false or did not believe to be true; ( d) if, before the hearing at which the statement is to be tendered in evidence, a copy of the statement is served, by or on behalf of the party proposing to tender it, on each of the other parties to the proceedings; (e) if none of the other parties, within ten days from the service of the copy of the statement, serves a notice on the party proposing or objecting to the statement being so tendered in evidence; (f) if, where the statement is made by a person who cannot read it, it is read to him before he signs it and it is accompanied by a declaration by the person who read it to the effect that it was so read From my reading of the above provisions of the law, for a statement to qualify to be tendered under this section it must satisfy the above criterions. Moreover, under sub-section 2(a) of Section 34B, the pre- 7 requisite for admitting a statement of a witness is where that witness is dead; unfit by reason of bodily or mental condition; is outside Tanzania and unreasonably

practicable to call him/her; or that all reasonable steps have been taken to procure his attendance but he cannot be found or he cannot attend because he is not identifiable. Coming back to our present case, the prosecutor was recorded on 18th August 2016 saying that the witness Gastus Julius appeared in court on 20.07.2016 and has not appeared again and he prayed for the arrest warrant. The said warrant was issued. Again on 14th September 2016, Prosecutor was recorded saying that Gastus Julius is not available as he is not at his home. After that he prayed to invoke Section 34B of Cap 6 and use his statement. The prayer was granted. Looking at the interpretation of the law, it requires that all reasonable steps have been taken to procure his attendance but he cannot be found. In so far as the present case is concerned I don't think the steps taken fits the requirement of the law. I am saying so because first of all, the said witness appeared before the court sometimes during the proceedings appearing in Court. Secondly apart from the blanket statement of the prosecutor that the 8 witness couldn't be found at his place of residence, no more reasonable efforts were shown to have been exerted to secure the said witness. By reasonable efforts I mean thorough follow up, no affidavit by the court process server that the witness could not be secured or from Sub-Ward Chairman; or even

publishing in the Newspaper. My take on the purpose of the legislature is that the circumstances have to be almost ejusdem generis to none procurement of the said witness and not conveniently unavailable. By this it means that all reasonable steps must be shown to have been applied to procure the witness and there is an element of impossibility. That element is not displaying in this case. In the circumstances therefore, --- I find that exhibit P2 was not admitted in observance of the requirement of the law and I accordingly expunge that piece of evidence from the record. Having expunged exhibit P2 from the record what is remained is the evidence of PW1 and exhibit Pl. The trial Magistrate in evaluating the evidence before him found PW1 to be a credible witness. He dismissed the defence by the appellant that he was falsely implicated cannot be true. 9 I have thoroughly gone through the proceedings in record. PWl has testified in chief that when the appellant and his co-robbers invaded them, he saw the appellant armed with a panga and threatened him. He however said that the appellant attacked him with a piece of wood and seriously injured him. This got me into thinking again as to whether the appellant was armed with a piece of wood or a panga? PWl further told the Court that following the assault by the appellant he was seriously injured and he went to report to the Village

Executive Officer himself being an area Chairman. He testified further that by then he applied local medicine to a seriously injured wound -until 10th August 2016! - -- This got me into thinking as to why PWl did not report the matter to the police and they had to wait until 10th August 2016 considering that he was seriously hurt? My doubt was further escalated by the evidence of PW2 who testified before the Court that he attended PWl at 1700hrs on 10th August 2016 and he had a big head injury which was bleeding and the wound had about five to six hours! It does not need a doctor here to say that why would a two days wound be bleeding like a five or six hours wound? Again as per the observation of the doctor, PWl has suffered a big head injury caused by a sharp instrument. From the observation of PW2 10 therefore, it raises doubt as to whether PWl was really injured on 8th August 2016 and whether he was injured by a piece of wood as stated by PWl. Moreover, it also raises doubt as to why if he had such a big wound, PWl did not go to the hospital. Conveniently, no other witness was called to testify on what exactly happened on the day. The trial Magistrate in convicting the appellant relied heavily on the evidence of PW2 and exhibit Pl. At page 3 of his judgement, the trial Magistrate said: "... the accused was not only armed with panga weapon on the material day but also

assaulted him as per the PF3 dated 1 dh August 2016 exhibit Pl." He went further at page 4 of his judgement that: •~ .. hence the robbery took place following the assaults to PWl as per the PF3 tendered by PW2 Dr. Sitta Elias Mui/a the exhibit However, apart from the reliance of the trial Court on the evidence of PW2 and exhibit Pl, unfortunately, the testimony of an expert witness does 11 not tally with the evidence of the victim, PW1 on the day that the wound was on inflicted. Also on the type of weapon used. The trial Magistrate also found PWl to be a truthful witness. I am aware that credibility of a witness is a monopoly of a trial court; however, the appellate court can determine the credibility of a witness by considering the testimony of the witness in relation with evidence of other witnesses including that of the accused person; and when examining the coherence of the testimony of the said witness. This principle was well illustrated in the case of Siza Patrice V R, Criminal Appeal No. 19 of . _ 2010. Furthermore, the appellant raised in his defence that PWl was an area Chairman whom he had once accused him of stealing the fishnets of his brother Zablon Petro Genja. The contention that was confirmed by PWl that he was the one who intervened the dispute when the appellant was alleged to have stolen fishnets belonging to Zablon. From that background therefore, it is

obvious that there is more than meet the eye which the trial Magistrate ought not to have casually dismissed the defence by the appellant. 12 • It is from the above observations I find that prosecution evidence of PW1 does not add up and it creates doubts which has to benefit the appellant. Therefore I find that prosecution case has not been proved beyond reasonable doubt, hence the appeal has merits and I accordingly allow it. I further order the release of the appellant from prison forthwith unless otherwise held for other lawful cause. Accordingly ordered - '\ '- "V\\ Z\l Nil Judge tJJ ~ 13 ,J