IN THE COURT OF APPEAL OF
AT
ARUSHA
(CORAM: RAMADHANI, C.J., MROSO, J.A. And
RUTAKANGWA, J.A.)
CRIMINAL
APPEAL NO. 228 OF 2007
1. YOHANA TOBICO
2. LEMBRIS SORAI
……………..……….…..…. APPELLANTS
VERSUS
THE REPUBLIC
……………………………………..… RESPONDENT
(Appeal
from the Decision of the High Court of Tanzania
at
Moshi)
(Munuo,
J.)
dated
the 20th day of August, 2002
in
Criminal Appeal No. 31 of 2002
------------
JUDGMENT
OF THE COURT
29 October & 30
November, 2007
RUTAKANGWA,
J.A.:
At
Majengo area within the Municipality
of Moshi
On 26th
March, 2001 at about 02.00 hours the said bar was invaded by an unknown number
of bandits. At that hour there was only
one person within the bar premises which were lit by electric light. This was Abdulla s/o Hussein (PW1), who
happened to be there by virtue of his employment as a night watchman.
Upon
entering the bar premises, the bandits fell upon PW1. Using a panga
and an iron bar, the bandits cut PW1 on the head and hit him on his leg thereby
fracturing it. PW1 cried out for
help. To silence him, the bandits held
him, and tore his clothes which they used to gag him. All the same the violent entry of the bandits
into the bar premises was allegedly noticed by a nearby watchman. This was Peter Melkzedeck (PW2) of Rombo
Cottage. The distance between Rose
Garden Bar and Rombo Cottage is approximately thirty (30) paces.
As PW2
could not confront the bandits, he made a report at Majengo Police Post and a
further report was made at the Moshi Central Police Station. Several policemen under the command of No.
E6806 Detective Corporal Robert (PW3) were dispatched to Rose Garden Bar. They managed to arrest two men, who are the
appellants in this appeal, and picked up one speaker within the vicinity. The Policemen left with PW1 and the two
appellants. Once back at the police
station, PW3 decided to charge the two appellants in the District Court of Moshi.
The charge
against the two appellants was armed robbery c/ss 285 and 286 of the Penal
Code. It was alleged that on 26th
March, 2001 at 02.00 hours at Rose Garden Bar they did steal one radio cassette
speaker valued at Tshs. 100,000/= the property of Flaviana d/o Msuya and that
immediately before the time of such stealing they did cut PW1 on his head with
a bush knife.
The
appellants denied the charge. Each
appellant, however, admitted to have been arrested on the material night in the
vicinity of Rose Garden Bar but not because they were robbers. The 1st appellant (Yohana) claimed
that he was arrested as he was on his way back home from a 24-hour dispensary
where he had earlier gone for treatment.
He named the dispensary as Embassy Dispensary and he identified the
doctor who had treated him to be Dr. Urio.
As for the 2nd appellant (Lembris) his defence was that he
was arrested on suspicion as he was walking back home from a nearby bar
belonging to one Alberto where he had gone for a drink on the evening of
25/03/2001.
The learned
trial Principal District Magistrate convicted the appellants as charged because
they did not advance any reason in their evidence to show why the prosecution
witnesses fabricated the case against them.
The appellants’ appeal to the High Court against conviction and sentence
was unsuccessful.
In
dismissing the appellants’ appeal the learned first appellate judge was of the
firm opinion that they were rightly convicted on the basis of the evidence of
PW1, PW2, PW3 and the recovered exhibits.
The appellants were dissatisfied and hence this appeal.
The
appellants have filed a joint memorandum of appeal containing six grounds of
complaint. However, these complaints
revolve around three crucial issues.
These are issues of identification, credibility of witnesses and failure
by the prosecution to produce material witnesses.
In this
appeal the appellants were unrepresented while the respondent Republic was
represented by Mr. Henry Kitambwa, learned State Attorney. The appellants opted to say nothing in
elaboration of the grounds of appeal.
The
respondent Republic supported the appeal.
Submitting in support of the appeal Mr. Kitambwa argued that the three
crucial prosecution witnesses, that is PW1, PW2 and PW3 gave contradictory and
implausible evidence upon which no reasonable tribunal would justifiably ground
a conviction. He, indeed, took us
through a litany of these contradictions, which appear to us to be very
fundamental as to impeach the credibility of these witnesses.
Having
critically examined the entire evidence on record and the judgments of the two
courts below in the light of the appellants’ grievances and Mr. Kitambwa’s
submission, we have found only two issues for our determination. These are whether the charge of armed robbery
was proved to the required standard and if it was, whether the appellants were
among the robbers. We shall begin our
discussion with the first issue.
Section 285
of the Penal Code defines the offence of robbery as follows:-
“Any person who steals anything and, at or
immediately before or immediately after the time of stealing it, uses or
threatens to use actual violence to any person or property in order to
obtain or retain the thing stolen or to prevent or overcome resistance to its being
stolen or retained is guilty of robbery. [Emphasis
is ours].
In short, robbery is theft accompanied by use or threat
of use of actual violence. Therefore,
there can be no robbery without theft.
The
appellants were charged with and convicted of robbing “one Radio Cassette spica (sic) make Panasonic Mult System” belonging to Flaviana d/o Msuya from the
earlier mentioned Rose Garden bar. The
said Falaviana never testified to confirm that the bandits who invaded the bar
premises and assaulted PW1 before they dispersed following the arrival of the
policemen, had succeeded to steal anything, leave alone a speaker of the type
mentioned in the charge, from the bar.
In his
evidence PW3 stated that after they had arrested the appellants and questioned
PW1, they came across a speaker “outside
the enclosed premises of Rose Garden”. According to PW3 it was on the following day
that PW1 told them that it belonged to Rose Garden bar. The said speaker was admitted in evidence as
exhibit P2. However we have found no
iota of evidence on record going to suggest that the said exhibit P2 was the
very one that was allegedly robbed from Rose Garden bar. Apart from the naked fact that neither
Flaviana nor the Manager of Rose Garden bar ever reported the loss of their
speaker of whatever description as a result of the March 20th, 2001
night invasion, the evidence on record does not show that exhibit P2 was a “Panasonic
Mult System Radio Cassette Speaker”. The
two courts below only assumed that exhibit P2 had been stolen from Rose Garden
bar relying on the bare assertion of PW1 who did not even tell the trial court
how he had identified it. This is where
the complaint of the appellants to the effect that they were prejudiced by the
failure of the prosecution to produce as witnesses the bar owner and/or its
manager gains great significance. All
the same we would have encountered no problem on this issue had we been
convinced that PW1, PW2 and PW3 were witnesses of truth. Our own objective re-evaluation of their
evidence has led us to believe that they were not. We shall endeavour to show why.
PW1
categorically told the trial court that at the time of the invasion the
premises were well lit. He further
testified that he knew the 1st appellant Yohana very well prior to
that day. It was his evidence also that
after the bandits had got hold of him and before he was gagged, he cried out
for help. He went on to say:-
“….. a watchman from the neighbouring house heard the
cries. His name is Peter. Peter came and found me lying on the
ground. One of the thugs was then
holding a sime on my neck. Peter contacted police who came and found me
on the ground. The thugs were still
holding me on the ground when the police came.
Police fired in the air. This
made the thugs to let me free ….. The police managed to catch hold of two of
them. These were the two accused in
court …..”
Peter (PW2)
told the trial court that on the material day at about 02.00 hours, he saw five
people invade Rose Garden Bar by jumping over the gate. Belying PW1, he went on to testify that as
the thugs were many he ran to Majengo Police Post to report the incident. He only went to Rose Garden bar with
policemen in a police vehicle only to find “the
thugs running out”. PW2 further
testified that the policemen managed to arrest the two appellants within the
fenced premises of the bar as they”were
trying to jump over the fence”. Although PW2 said that the policemen seized
some items at the scene of the crime he did not mention exhibit P2 to be one of
the items seized by the police.
But PW3 had
a different story to tell the trial court.
According to him when they approached Rose Garden bar, they saw people
walking on a roof of a third house from
the bar (which was about 70 paces away).
He suspected them to be running away from Rose Garden
bar. He took cover and fired one shot in
the air. Those people fell down from the
roof, were arrested and bundled into the police vehicle. According to him those people were the two
appellants. The inevitable questions
which arise are these:- Where and how,
then, were the appellants arrested? In
view of these patent contradictions, who as between PW1, PW2 and/or PW3 was
telling the truth? Unfortunately these
crucial questions escaped the attention of the learned trial magistrate and the
learned first appellate judge while assessing the credibility of these three
witnesses.
The learned
trial magistrate glossed over this issue saying:-
“It is my considered view that the discrepancy observed
in the evidence of PW3 on the site of arrest does not affect the truth of the
matter in the case”.
We think the learned magistrate was wrong. He was wrong because he restricted himself
only to the “discrepancy observed in the
evidence of PW3”. Had he considered
the fact that the three key prosecution witnesses fundamentally contradicted
each other as to render their evidence highly suspect, he would not have easily
held that the truthfulness of the charge against the appellants had not been
affected. On her part the first
appellate judge did not even allude to these contradictions at all. She was satisfied by the “evidence of PW1,
PW2 and PW3 and the recovered exhibits”.
The
weakness of the prosecution case is heightened by this further evidence of
PW3. He said:-
“I fired one shot in the air. Two people fell from the roof to the
ground. We caught hold of them and
placed them in our vehicle. We drove them
to the police station. Before we drove
away I heard someone in the premises of Rose Garden crying out. We went there to find out what was wrong. I saw PW1 tied with pieces of cloth ….. I
questioned PW1 who said thugs had invaded him and cut him with sime.
He said he did not know by that time who had injured him. On the same night I picked this speaker …..
PW1 said it belonged to Rose Garden ….. It was next day he said the speaker
belonged to Rose Garden …..”
This piece of evidence leaves many vital questions
unanswered. If exhibit P2 which was
relied on to found and/or sustain the appellants’ conviction for robbery, had
been stolen from Rose Garden bar, and PW1 knew it to belong to that bar, why
did he not identify it at the time it was picked up by the police? If the 1st appellant was among the
bandits why didn’t PW1 identify him at the scene of the crime? In his entire evidence PW1 only mentioned the
two appellants once when telling the trial court that they were the two people
who were arrested by PW3 while escaping from the scene of the crime, evidence
which we have already shown to be untrue.
There was no
dispute that PW1 was gagged and appeared to have remained so until when he was
found by PW2 and PW3. That being the
case, it is inconceivable that he would have cried out for help and be heard by
PW3 who was 70 meters away. Going by the
evidence of PW3 as quoted above, it appears if he had not heard the cries of
PW1, they would not have gone to Rose Garden bar that night after they had
arrested the appellants. And as he put
it bluntly, they went there on hearing the cries simply “to find out what was wrong”.
This piece of evidence indicates that they were not even aware of what
had taken place at Rose Garden bar that night, contradicting PW2. Furthermore, this evidence lends credence to
the 2nd appellant’s claim that he was only picked up on suspicion
that he:
“….. was one of those who break into people’s houses at
night”.
Had these
patent contradictions, inconsistencies and improbabilities in the prosecution
case been addressed by the learned first
appellate judge, she would not, in our considered opinion, have easily found
the prosecution case against the appellants to be plausible. Consequently she would not have held that the
appellants’ “respective defences were not
the least probable in those circumstances”.
To
recapitulate briefly, our own analysis of the prosecution evidence has led us
to the conclusion that it failed to prove beyond reasonable doubt that any
theft was committed at Rose Garden Bar on the night of 26th March,
2001. As a consequence, the offence of
robbery was not proved at all. That
notwithstanding, even if we had been satisfied by the evidence available that
the charged offence had been proved, we would still allow the appeal as we have
found no cogent and credible evidence going to show that the two appellants
were among the bandits who had invaded Rose Garden Bar and physically assaulted
PW1. The appellants, going by the
evidence available, were arrested on suspicion as they claimed. Their defence was very plausible in the
circumstances and were entitled to an acquittal.
For the
foregoing reasons, we allow this appeal in its entirety by quashing the
conviction of the appellants and setting aside the sentence of imprisonment
imposed on them. The appellants are to
be released from prison forthwith unless they are otherwise lawfully detained.
DATED at DAR ES SALAAM this 21st
day of November, 2007.
A. S. L.
RAMADHANI
CHIEF
JUSTICE
J. A. MROSO
JUSTICE
OF APPEAL
E. M. K. RUTAKANGWA
JUSTICE
OF APPEAL
I certify that this is a true copy of
the original.
F. L. K. WAMBALI
SENIOR
DEPUTY REGISTRAR
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