20101119 TZHC Dar es Salaam

IN THE HIGH COURT ,OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY)

AT DAR ES SALAAM CRIMINAL APPEAL NO. 130 OF 2008 . -- (Originating from Criminal Case No. 1638/2006 at Kisutu Resident Magistrates Court at Dar es Salaam) VICTOR THOMAS TESHA ........................... APPELLANT

VERSUS REPUBLIC ................................................ RES PO ND ENT

JUDGEMENT MURUKE, J. The appellant Victor Thomas Tesha was convicted by the resident magistrates court of Dar es Salaam at Kisutu for the offence of armed robbery contrary to section 287 A of the penal code Cap. 16 as amended by act no 4 of 2004 and conspiracy contrary to section 284 of the panel code cap 16 R.E. ~002. Facts leading to this case are that, on 10 th and 13 th day of December 2006 at Sinza Kijiweni area within Kinondoni District in Dar es Salaam Victor Thomas Tesha, Charles Pet~t Gama and Dimimi Joseph Olomi did steal 19,800,000 fsh the property of Overseas Trading 1 \ . Company and immediately before such stealing did threatened one Raphael Kimati with a Pistol in order to obtain and retain the said amount of money. Before this court appellant was 1n person and Mr Ishengoma Kato learned state attorney represented the respondent, appellant filed 6 grounds of appeal. On the hearing date the appellant added two grounds making a total of 8 grounds.

1. That the trial magistrate erred in law and fact when he relied on the evidence of PW2 and PW3 as a basis for conviction without through full secreting of their testimony.

2. That the trial magistrate erred in law and fact by considering the evidence of DW2.

3. That the trial magistrate erred in law and fact in convicting the appellant base on caution statement marked as exh. Pl and Marked as exh. Pl 1 rendered by PW 1.

4. That the trial magistrate erred in law and fact by convicting the appellant basing on unjustified corroborated evidence. 2 L . ' 5. That the trial magistrate erred in both law and fact 1n convicting the appellant because without evaluating the whole case in totality.

6. That the trial court erred in law by not reminding the appellant on the charge sheet contrary to section 27 (2) of the magistrates court Act 1984.

7. That the magistrate erred in law to convict the appellant while the prosecution did not prove the case beyond reasonable doubt. When the case came up for hearing appellant prayed that his grounds of appeal be adopted as his submission, consequently the court adopted grounds of appeal as appellant submission. Basing on appellants petition of appeal the following were submitted. The appellant denied the admissibility of PW2 and PW3's evidence that they were invaded by thugs and in the process they robbed the money. PWl and PW2 admitted to have seen the thug but later on they were not able to recognize the thugs. One of the thugs was arrested by the assistance of good Samaritans, according to section 122 of the TEA 1967 the burden of proof lies on the person who wishes the court to believe in its existence unless proved 3 . ' to the contrary. Appellant further submitted that, DW2 testimony asserted that he identified the appellant at the scene of the crime, however records are silent as to the factors leading to the proper identification. It was contended by the appellant that, DW2 was interrogated and reduced his information to caution statement, why did the prosecution failed to tender such vital information to justify his testimony? Insisted the appellant. It was further argued by the appellant that DW2 was an employee of the company robbed by the appellant, for sure he had

an interest to serve, appellant cited the case of DPP Vs EL MKOBA & ANOTHER ( 1990) TLR 55, where it was held that; A witness with his own interest to serve could not therefore be expected to have said anything other than which would exculpate him from liability. Appellant denied admissibility of caution statement considering the fact that it had been recorded contrary to procedures as per section 10 (5) 50, 51 and 51 of the CPA, 4 supporting his views he cited the case of AZIZ RASHID AND ANOTHER VS R 1989 HC APP NO. ELS. Caution statement was rejected as was recorded without the permission from the magistrate after the expiry of the basic (4) hours. Appellant further insisted that he was convicted basing on unjustified corroborated evidence. PW2, PW3, were employees of the same company and they fall within the principles of one family, they could have fabricated the evidence against the appellant, in supporting his views be sighted the case of ZUBERY SHABAN & OTHERS VS R. APP NO. 138 of 1990 where Mkwawa, J. observed that; The trial was nullity the ~-ground of one family their evidence must be corroborated PWl, PW2, PW3, were members of one family it was true then they could have fabricated the evidence against the accused person for their benefit. Further appellant contended that, he was convicted without the evidence in whole being evaluated. Appellant submitted that, PW4,

PW2, PW3, had ample time to see the appellant because an offence was conducted in the morning this contradicts the evidence of PWl. In 5 \ ' I' examination in chief he stated that he knew the 1 st accused since 14/12/2006 when he recorded the caution statement PW2 stated that they were ordered to lay down. In additional appellant submitted that he was not reminded on charge sheet, this is contrary to section 27 (2) of the magistrate courts Act 1984. Charges were read on 19/12/2006 and the case was set for hearing on 02/05/2007, this renders the whole proceedings a nullity. In finalizing his arguments appellant submitted that, prosecution failed to prove the case beyond reasonable doubt, charge sheet read that 19,800,000 T shs was the amount of money stolen but prosecution witness PWl produced exhibit of Tsh. 531,855 PW2 but PW3 testified to have found a bag having 500,000 Tshs. DW2 said that he was the one who took the bag and handled to the police officer with 53,800. Respondent being represented by Mr. Ishengoma Kato, State Attorney, submitted that, the issue of identification had no problem, the incident took place at daylight in the morning at 7.00 am, and the appellant was personally 6 ' I'' arrested. It was further submitted that, the caution statement referred by the appellant was not the one used to convict him despite its illegality. Submitting on the issue of

analyzing the evidence the counsel for the respondent submitted that PW2 evide.nce creates doubts where he said that appellant stole 19,800,000 Tsh from cash office while he was in different room. After arresting the appellant PW3 retained the bag at the office with 531885 Tshs, the bag was to be taken to the police and not to be returned to the office. This creates doubts as to whether the appellant was arrested with the money or not. Respondent counsel insisted that, there were people who were present while an accused was arrested but no one was called to give evidence. On the issue of relationship raised by the appellant in ground No. 4 respondent counsel submitted that, the Law is clear that if the witness speaks the truth then their relationship does not matter. Having gone though courts records and arguments raised by both parties this court is of the following observations. The appellant is charged with an offence of armed Robbery 7 contrary to section 287 A of the penal code as amended by act no 2 of 2004 which define armed robbery as: Any person who steals anything and or immediately after the time of stealing is armed with any dangerous or offensive weapon or instrument or is in immediately after the time of stealing uses or threaten to use violence to any person commits an offence termed armed robbery and on conviction is liable to imprisonment for a minimum term

of thirty years with or without corporal punishment. The offence at hand entails ingredients of theft, dangerous or offensive weapon and use of actual or threatens violence before or after the act as clearly provided in the case of ZUBEL OPESHATTU Vs REPUBLIC criminal appeal No 31 2003 (unreported), justices of appeal observed that: The prosecution has to adduce evidence to establish the essential ingredients of the offence, that is, whether actual violence was used to obtain or retain the thing stolen. The nature of the crime of robbery is that there should be violence to the person of the complainant. 8 The totality of evidence reveals that there is contradiction of prosecution's evidence. Evidence of PWl PW2, PW3 and PW4. The four witnesses contradict each other on the amount stolen. The amount stolen remained with the 1 st complainant until the day that PW2 and PWl gave evidence. The amount stolen was the key factor to be proved by the prosecution as started in the charge sheets. In criminal case prosecution has to prove the case beyond reasonable doubts. The decision in the case of SULLEMAN MAKUMBA Vs REPUBLIC App NO 94 1999 (CAT) (unreportedl support the above position where justices of appeal were of the view that: It is of course for the prosecution to prove the guilty of an accused person beyond reasonable doubt and accused person does not assume any burden to prove

his case. In law, it is not issue of ascertaining the guiltiness of an accused person by relaying on contradictory evidence of- prosecution. Whenever cash are involved the exact amount has to be said. The fact that the appellant was arrested at the scene of the crime, but the prosecution starting the 9 amount different with what is in the charge sheet, it can not be said that prosecution has proved their case beyond reasonable doubt. In totality the evidence adduced at the trial court was not sufficient to convict the appellant. It is therefore ordered that appeal is hereby allowed. Conviction quashed and sentence set aside. Appellant to be set free unless otherwise with held with other criminal offences. Z. G. Muruke

JUDGE 19/11/2010 Judgment delivered in the presence of the appellant and Miss Kombakono State Attorne spondent. Z.G.

JUDGE 19/11/2010 10