IN THE COURT OF APPEAL OF
AT
MWANZA
(CORAM: LUBUVA, J.A., MROSO, J.A., And
RUTAKANGWA, J.A.)
CRIMINAL
APPEAL NO. 1 OF 2005
1. DICKSON S/O
JOSEPH LUYANA
2. CHARLES S/O WILLIBARD @ BAJUNANA … APPELLANTS
VERSUS
THE REPUBLIC ….……..………..………………..….
RESPONDENT
(Appeal
from the Judgment of the High
Court
of Tanzania at Mwanza)
(Masanche,
J.)
dated
the 8th day of September, 2004
in
HC
Criminal Appeal No. 77 and 76 of 2002
-------------
JUDGMENT
OF THE COURT
5 & 16 March
2007
RUTAKANGWA,
J.A.:
This
is a second appeal against a conviction for armed robbery c/ss 285 and 286 of
the Penal Code and a sentence of thirty (30) years imprisonment.
The two
appellants were jointly charged together with four other people with the
offence of armed robbery before the District Court of Mwanza. All of them denied the charge. However, they alone were convicted as charged
and sent to prison. Their appeal to the
High Court against conviction and sentence was dismissed by Masanche, J. They think the two courts below were wrong as
the charge against them was not proved at all by the prosecution.
We shall
start by stating the full particulars of the charge. They read as follows:-
“That
Dickson s/o Joseph @ Luyana, Charles s/o Willibard @ Bajunana, Hezron s/o Oloo
@ Otiene, Shamsi s/o Juma @ Issa, Felix s/o Shengoma @ Ferdinand and Augustine
s/o Kamugisha @ Mgolozi on the 20th day of March, 2001 at 02.30 hrs
at Ilemela area within the city, District of Mwanza, did steal one Radio call
charger valued at TShs. 500,000/= the property of Tan Perch Factory and at
or immediately before or immediately after stealing did use actual violence by
threatening to cut with a panga Amos
s/o Balosha in order to retain the stolen property” (emphasis is ours).
To prove
its case, the prosecution called 6 witnesses.
These were Amos Balosha, Kassian Kazana, David Masolwa, Switbert Musa,
No. C.1490 D/Sgt. Gasper and No. D.4554 D/Cpl. Mahenge. These witnesses shall be referred to as PW1,
PW2, PW3, PW4, PW5 and PW6 respectively hereinafter. These witnesses were to prove that the
appellants and their co-accused did rob one radio call charger, apparently of
an unknown type or make, and in the process threatened to cut PW1 with a panga in order to retain it.
No one,
then, could have explained the robbery better than PW1 Amos Balosha. His evidence in chief, which we take the
liberty to reproduce faithfully in full, for reasons which will become apparent
subsequently, was as follows:-
“I
know the accused persons among them before the robbery such as Dickson,
white/in court is Charles s/o Willibard and 5th accused Felix
Shengoma Shamusha and Kamugisha after the robbery I came to know the rest by
face. The one whom was not known to me
is the 3rd accused only.
Other people who robbed me are not in court.
On 20/3/2001 at about 02.30 hrs I was at
the factory by my co-workers (employees).
A watchman at the main gate phone to me a radio call that a group of
people has come to rob. I informed
other watchmen to be ready to rescue with the robbers. I did phone to central police the bandits
were throwing stones as we were many with the workers on night duty we
succeeded to arrest them. The first
accused to be arrested was Dickson, he was arrested with a charger of a
radio-call. The policemen arrived we
succeeded to arrest the rest in our fence at water tanks. We took them to police Kirumba. They were charged. The accused person had a panga and an iron
bar, the second accused had a panga the first accused had an iron bar in his
hand” (emphasis is ours).
After tendering one charger, one panga and one iron bar
in evidence as exhibits P1, P2 and P3, PW1 ended his evidence in chief. Under cross-examination he claimed that the
accused Dickson (1st appellant) was arrested holding the charger in
his hands. The evidence of PW2, PW3 and
PW4 was generally along the same lines, although they contradicted each other
on some fundamental issues. This
evidence of PW1 notwithstanding, PW5 Cpl. Mahenge claimed the credit of being
the one who arrested the 1st appellant after arriving at the scene
of crime. He was very specific that the
1st appellant unsuccessfully took to his heels, “dropped a charger
together with a knife” but with the help of the police and workers they
“succeeded to arrest him”.
The two
appellants denied the entire accusation.
They said it was a total fabrication.
The 1st appellant told the trial court that he was arrested
at his home on 20/03/2001 at 04.00 hours by two uniformed policemen and taken
to Kirumba Police Station where he was detained until 23/03/2001 when he was
taken to court.
On his
part, the second appellant testified that he was arrested on 19/03/2001 at
23.00 hours by sungusungu
people. He was on his way home from
Bingwa Club Nyamahoro. They took him to
Pasiansi Police Post as he failed to supply them with a torch. He was later taken to Kirumba Police Station
joined with his co-accused and subsequently charged.
The trial
District Court did not buy the stories by the appellants. The learned trial District Magistrate after
reproducing all the evidence on record, without subjecting it to any critical
or objective analysis jumped to the conclusion that a radio call charger was
stolen from the Tan Perch factory. The
only issue he found facing him was the identity of the thieves. He immediately held that since the 1st
appellant “was arrested on the spot at about 02.30 hours with a radio charger”
he was one of the robbers. He
accordingly convicted him as charged.
As for the
2nd appellant, the learned trial magistrate had this to say:-
“In
his defence 2nd accused said the prosecution evidence of PW3 and PW6
differs to their statements given at police station but didn’t explain really
what differs in which paragraph he just tendered them in court as Exh. ‘D1’
collectively”.
Without specifically rejecting the 2nd
appellant’s defence, he proceeded to hold that the prosecution had succeeded to
prove beyond reasonable doubt the case against him. He, too, was convicted as charged. The rest were acquitted.
As already
indicated above, the two appellants challenged the convictions and sentences on
appeal to the High Court.
Abdicating
its duty as a first appellate court to re-evaluate the entire evidence, the
learned appellate judge found the appellants’ appeal seriously wanting in merit
and dismissed it. He held that view
because the 1st appellant “was actually caught red-handed in the
yard with the stolen article”. He went
on to say:-
The
appellants, according to the evidence on record, were armed with stones and a
panga and indeed these articles were tendered in court …”.
He rejected the appellants’ defence of alibi because
they were netted on the spot within the factory.
To us, the
above holding by the learned judge indicates that he did not dispassionately
read the evidence. Had he done so, he
would not have failed to discover that no single stone was tendered in
evidence. Furthermore, the evidence on
where the appellants were arrested and found with what was flawed with
fundamental contradictions.
In this
appeal the appellants are urging us to quash their convictions and set aside
the sentences on these grounds. First, there was no proof that any
radio call charger was stolen from Tan Perch factory at all. Second,
even if one were to assume that there was such stealing the offence of robbery
was not proved at all. Third, the prosecution witnesses gave
contradictory evidence which shattered their credibility. Four,
it was wrong for the courts below to reject their defence of alibi, without
assigning any reasons.
Urging us
to dismiss the appeal, Mr. Kiria, learned State Attorney, had indeed an uphill
task. He defended the decisions of the
two courts below, because the two appellants were not only adequately
identified among the robbers but were also arrested within the factory
premises. On this, however, he failed to
justify the acquittal of the appellants’ co-accused who were also allegedly
identified and arrested within the factory by PW1, PW2, PW3, PW4 and PW6. Secondly, the appellants were found in
possession of the stolen charger, he argued.
Third, although he admitted that there was no evidence on record to show
from where the charger was stolen and at what time it was stolen, he was of the
firm view that PW4’s evidence proved beyond reasonable doubt that the charger,
Exhibit P1, was the property of Tan Perch factory.
Asked by
the Court on whether from the entire evidence on record it can be safely held
that any robbery was committed, he was non committal. He left it to the Court to decide.
This is a
second appeal. As was held by this Court
in the case of Amratlal D.M. t/a Zanzibar
The two
courts below held that not only were the appellants arrested within the Tan
Perch factory premises, but one of them was found in possession of the
allegedly stolen radio call charger.
These are concurrent findings of fact which in our considered opinion
are not supported by any cogent evidence on record. In short, they were arrived at as a result of
a clear misapprehension of the evidence.
Were the
appellants actually arrested within the factory premises as conclusively found
by the two courts below? Our considered
answer to this crucial question is in the negative. The key prosecution witnesses contradicted
themselves. PW1 who was the in-charge of
the watchmen testified that the 1st appellant was arrested by him in
collaboration with PW2, PW3 and PW4, among others, immediately after the
bandits’ presence was noticed before the arrival of PW5 and PW6. According to PW1, the 1st
appellant when arrested was in possession of the charger (Exh. P1) which was in
his hands. On these claims he was belied
by PW2, PW3, PW4 and PW6 who claimed that both appellants were arrested after
the arrival of the police. Furthermore,
while PW4 claimed that the 1st appellant was keeping Exhibit P1 in
his pocket, PW6 as we have already shown, stated that the 1st
appellant dropped Exhibit P1 while being chased before he was arrested. The credibility of PW3 was shaken by the 2nd
appellant, through his statement to the police dated 23.3.2001 which was
admitted in evidence as Exhibit D1. In
this statement PW3 had stated that the 1st appellant at the time of
the robbery was putting on a hood. One
wonders if the 1st appellant had a hood covering his head and face
how could anyone have identified or recognized him? Furthermore, the veracity of PW6 was irremediably
dented by his statement to the police (Exh. D1 again). In this statement, contrary to what he
claimed in Court, PW6 had stated, under caution, that the 1st
appellant was arrested outside the factory premises on the “other side of the
road”. This statement corroborates the
evidence of the 2nd appellant to the effect that he was not arrested
at the scene of the alleged robbery, but rather was arrested by good citizens
on suspicion and taken to PW6.
It is very
unfortunate that neither the learned trial magistrate nor the learned first
appellate judge did direct their minds either to these contradictions or to
Exhibit D1 at all. We are left wondering
if they would have reached the same findings had they done so. We think they would not. Before leaving this point we would like to
observe that Mr. Kiria who zealously defended the decisions of the courts below
had no access to Exhibit D1. This was
because, for reasons unknown to us, Exhibit D1 was conveniently left out of the
record of appeal. We are sure had he
seen Exhibit D1, he would have had some genuine second thoughts.
Another
fact worth considering here is whether or not there was evidence to prove that
the Tan Perch company lost permanent ownership of any of its radio call chargers
of whatever description. No single
witness from the company testified to that effect. Even the value of the charger is not
known. What we have on record are the
now doubtful, if not discredited, allegations that the 1st appellant
was found in possession of a radio call charger which only PW4 in a bare
assertion claimed belonged to the company.
This witness never told the trial court how he came to know that it was
the property of Tan Perch. Worse still,
PW4 never identified that charger (Exh. P1) in court. It would be risky then to assume that Exhibit
P1 is the property of Tan Perch. PW1 who
tendered it in evidence never claimed that it was the property of his
employer. If indeed Tan Perch had lost
their charger through the alleged robbery, it would not have failed to come to
court to testify through a responsible officer to that effect. That it did not do so leads to a reasonable
inference that no radio call charger was stolen from them on 20/03/2001. This inference is further augmented by the
fact that there is no evidence at all to show from where the said charger was
taken and/or at what point in time, when it appears from the confusing evidence
that the bandits were arrested before they fulfilled whatever they wanted to
do.
The issues
of law raised by the appellants equally deserve our serious consideration. Was there any theft? If there was any theft was there any robbery
committed? The former issue gets its
answer from what we have held immediately above. Theft of Tan Perch radio call charger was not
proved at all.
Even if we
were to assume that Exhibit P1 was found on the 1st appellant and is
the property of Tan Perch, we are all the same of the settled mind that the
offence of robbery was not proved. As
this Court held in the case of Zubell
Opeshutu v. R., Criminal Appeal No. 31 of 2003,
“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 violence
must also be proved. A prerequisite for
the crime of robbery is that there should be violence to the person of the
complainant …”
In the case at hand we have no scintilla of evidence to
establish that the appellants used or threatened to use any actual violence on
the person of PW1 Amos to obtain and/or retain Exhibit P1 or any other
property. That is why we thought it
worthwhile to reproduce the entire evidence of PW1. That is why also Mr. Kiria was in a difficult
situation to tell us which offence the appellants committed, assuming they were
arrested under the circumstances alleged by the prosecution witnesses. It appears they were rounded up before they
got anywhere. No single witness said
that any violence was directed on his person.
All said,
we are satisfied that the prosecution failed totally to prove its case against
the appellants. Indeed, if the evidence
of PW1,PW2, PW3, PW4 and PW6 was found not to be cogent enough to convict the
appellants’ co-accused, the same standards ought to have been applied to the
appellants.
In the
result, we allow this appeal. The
conviction for robbery in respect of each appellant is hereby quashed aside as
well as the prison sentence. The
appellants are to be released forthwith from prison unless they are otherwise
lawfully held.
DATED at MWANZA this 16th day
of March, 2007.
D. Z. LUBUVA
JUSTICE
OF APPEAL
J. A. MROSO
JUSTICE
OF APPEAL
E.M.K. RUTAKANGWA
JSUTICE
OF APPEAL
I certify that this is a true copy of
the original.
(S. M. RUMANYIKA)
DEPUTY
REGISTRAR
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