20050606 TZHC Mwanza

APPELLATE JURISDICTION --...... HIGH COURT CRIMINAL APPEAL NO. 51 OF 2004 ( Original Cr. Case No. 108 of 2003 of the District Court of Ml.isoma at Musoma Before: L. MASOLWA,Prin4ipal District Magistrate} RUGERA s/o KITARA ·······························••'••·················~---··APPELLAN7 ., Versus THE REPUBLIC .....••.....................•......•....•.................. ~ ..... RESPONDEN-

JUDGEMENT R. M. RWEYEMAMU, Judge: The appellant Rugera s/o Kitara was charged and convicted c Robbery with violence c/s 285 an9 286 of the Penal Code. He wa sentenced· for the offence of Arm~d Robbery for which a minimur I sentence of 30 years was passed. Dissatisfied, he· has appeale against both conviction and sente~ce. ;; · Before going further in thJ matter," I wish to make. a rema regarding the sentence. The triaicourt in_ passing sentence observ that (I paraphrase) "in view of/ ct 10/1989 and its amendment, 6/1994, and the new para (hll (iii) of the minimum sentence 1/1972, where the offender is armed with a dangerous weapor instrument ... The accused· wili be sentenced to 30 years." , sentence is improper in view of he CA decision in Stephano Ndag 1 Jumanne Said V R (1994) TLR 6 . The court held that; · ·i .q,'·· i' ; . . ,!~•)i', . :. :· ~ I • "(ii) Armed robbery, punishable with a minimum sentence of ► .. thirty years' imprisonment, is a more serious offence than robbery with violence, punishable with a minimum sentence of fifteen years' imprisonment; a conviction for armedrobbery therefore, could not be legally substituted for robbery with violence;" The reasoning of the trial court was that a charge of Robbery. with violence where arms are used to tfrreaten or cause actual arm, automatically include the offence of.. Armed . Robbery. That interpretation however, is

contrary to th~ CA decisio"n above cited. The court of Appeal in that case, went o~ to observe that there is _a_ specific offence of Armed Robbery, and I that . failure . by the . prosecution in certain instances to frarlie such charges properly stems from an oversight in draftfng of the law. Specifically. they observed that: . . "Thus, as we have already said abo e, there is. a .specific offence of armed robbery. However, t1e Second Schedule to the Criminal Procedure Act 1985 gi~rg Forms of Stating Offences in Information does prescrib~ in item 8 the format 'Robbery with violence, contrary to s 2f5 of the Penal Code,. Act 10 of 1989 has not added a n~w format of 'Armed · Robbery, contrary to s 285 and 28J ' It is easy 1o see/ therefore, why those with the duty or[ramlng chiirgfJs have .::e:p:::t~tt:\:p;cc:~:r;::;;ifi;/1::: Prosecutions will take the necessary 1teps to inform those' Who act on his behalf· of these decisiJns and ch~ck. against this mistake. " ·2 • I :l ' I ' J .. / ·,1,,. 1;_{ i The above explanation clearly means that where on the facts, • the prosecution believes the offence committed to be Armed Robbery; the charge should be for that offence but Linder the same section 285 & 286 of the Penal Code. The court will not do it for them by substituting in convicting or sentencing, a graver offence of Armed Robbery while the charge is for a lesser offence of Robbery

with violence. Now, turning to this appeal, Mr. Mwenempazi learned SfAttorney for the Republic declines to support conviction. He has two reasons. One, that the evidence add~ced in court and the charge. sheet differ. The evidence relates to the offence of cattle theft, while the charge is Robbery with violence. He further submittes however; that this ano~aly may be corre~ed by court under .s. =~,8.,.~d),,1.,..,.,,,,., ~h~ the CPA. In view Qf my conclusion herein b~lowl·~I.,,.ave :aJ·., -. · · · · · · . ' •• j ~ I; ,..,.t. : ;i;,·" • ,,_t_ ~ ·t•""--·111'1,!l ;·~.• "'. ·.;,111:! ·• • ., to adores -· · · · ·· ·' · ~- ":. ' d · ···.i'.' ·'.' ·, ., i,1::,•:.(\'l:~~~~r•. ' ·. . . . . ' .•., ,. ~ .,5 , 'fl'-,;~ ,: •,1 •. •• •' . ,,, .• • ./ •. ., ·,, ··•·,·.' . •. '"··•.· • ,p;,·, • ,,'1. _.,. .- ·., . ·'·· Two, t e evi ence 'ofpossessibr(by the appe\\ant of the sto\en herds of cattle was wrongly relied on to support conv\ct\on, due to contradictions between Pw 1 and Pw 3 regarding marks on the cattle. recovered from the appellant. He submit1 further that in view of the said inconsistencies, a possibility that/ the appellant was falsely implicated cannot be ruled out. The ap!,ellant in his ·petition raises .. another ground, namely that the true ownership of the allegedly recovered cattle was not established. He claimed the cattle to be his, an issue also. not_ed but discarded by the

rial court ....: as per page 4 of the Judgment. 3 I I --I The inconsistencies in evidence regarding the· marks of the stolen cattle between PW 1 the owner and Pw3 , in whose possession the cattle were. before the theft, in my opinion go to the root of the matter and tends to raise doubt in the prosecution's case, that the appellant was in possession of the stolen herds of cattle. Further, it is doubtful that on the facts, even if the recovered cattle. was properly established to belong to the complainant Pw 1, which it was not, the doctrine of recent possession would have been applicable to base a conviction for Robbery with violence against the appellant. In invoking the doctrine, the trial magistrate notes on page 4 of the judgment that: "The period from the robbery to diicbvery is quite short, .-., . shorter than a month and a half. Sur;h being so and the exhibited cow can not have changed ha/2ds so fast legal!½ the doctrine of recent possession comes intJ play. " · · According to the facts, Pw 1 was rob ed of 227 .herds of cattle. and only two were recovered. There was also in evidence existence of a cattle market, where cattle easily change hands such that possession, after a month and a hal may easily have other explanations, unlawful or otherwise, oth r than that the appellant was a robber. . . In _conclusion, I concur with the I~ rned SfAttorney ·that this appeal is merited. The contradiction in th prosecution evidence cast doubt on the possession of the stole herds of .cattle . by the appellant. I give t~at benefit of doubt to t e appellant. His co,nviction · ·4 is hereby quashed; the sentence and compensation o.rder set aside. · The appellant is to ~e released forthwith unless otherwise lawfully held. "It is so ordered" .. I R. M. RWEYEMAMU

JUDGE 6/06/2005 .. ' 5