20150731 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA

DAR ES SALAAM DISTRICT REGISTRY

AT DAR ES SALAAM {APPELLATE JURISDICTION) HC CRIMINAL APPEAL NO. 86 OF 2014 (Appeal from the decision of the llala District Court, in Criminal Case No. 1000 of 2008) ALFRED MAKARANGA ................ APPELLANT Versus THE REPUBLIC ................................. RESPONDENT Date of hearing: 1st July, 2015 Date of Judgement: 31 st July, 2015

JUDGMENT Feleshi, J.: The appellant is appealing against the conviction and sentence of seven and thirty years respectively entered against him in respect of the offences of Conspiracy and Armed Robbery: contrary to sections 384 and 287A of the Penal Code, [Cap.16 R.E. 2002]. He has filed nine grounds of appeal to support his petition of appeal, the appeal which is not opposed by the Republic, the Respondent. His main complaint is that the trial court erred to: rely on the evidence of PW.3 which was not exhaustive; relying on his retracted cautioned statement (Exh.PE No.3) without conducting an inquiry; relying on PW.3's PF.3 (Exh.PE No.5); and, relying on seized air conditions (Exh.PE No.1) without seizure certificate. What is gleaned from his petition of appeal in short is Page 1 of 5 · that the trial court erred to convict and sentence him on a case that was not proved beyond reasonable doubt by the prosecution. As indicated above, the Respondent through the service of Ms Rachel Magambo, the learned Senior State Attorney declined to support both the conviction and sentence. She subscribed to the petition of appeal saying that: the appellant was not named at the earliest opportunity; it was wrong for the trial court to admit and rely on the appellant's cautioned statement and PW.3's PF.3 against the law as no inquiry was conducted and no right was given to the appellant to

question the medical practitioner who prepared the PF.3; and there was no seizure certificate for the robbed properties. She further submitted that it was wrong to convict and sentence the appellant with both Conspiracy and Armed Robbery and without getting the evidence of the Goodown keeper one Hashim Abdullah. The question before me is whether the case against the appellant was proved beyond any reasonable doubt. In its analysis and findings at pages 44-48 of its judgment, the trial court was contented by the prosecution evidence that the evidence adduced by PW.1, PW.2, PW.4 and PW.S, who visited the scene of crime shortly after the commission of the crime, established that the godown was found to have been broken where several boxes of air conditions were left outside the godown yard. ·The court believed those witnesses and the exhibits namely, the seized air conditions, appellant's cautioned statement, PW.3's PF.3 and a gun that was handed over to the Page 2 of s · appellant on the fateful day. The trial court also considered the appellant's alibi and dismissed it. It finally held: "In the above analysis of evidence from both parties on points of law and facts surrounding this case, I find that the prosecution side has managed to establish his (sic) case beyond reasonable doubts as against the 2 nd accused and failed to establish his (sic) case beyond reasonable doubts as

against the 15 \ 3 rd, and 4 th accused persons." I have gone through the record and found that both the appellant's cautioned statement (Exh.PE No.3) and PW.3's PF.3 (Exh.PE No. 5) were admitted in court without objection from Mr.Kusalika Advocate who represented the appellant at the trial as clearly shown at pages 35 and 42 of the trial court's proceedings. For that case, I do not agree with Ms Magambo, the learned Senior State Attorney that- the evidence in those exhibits be discarded for failure to comply with Section 240(3) of the Criminal Procedure Act, [Cap.20 R.E.2002] and holding of an inquiry for the retracted confession. Though in this case the the victim's PF3 was improperly read over before its admission, the fact that Mr.Kusalika opined that they were not objecting to its as they did not have evidence that the police used force against the appellant in my opinion, cannot be given other meaning other than that there was nothing to inquire against its contents. Besides, its evidential value in terms of section 29 of the Evidence Act, Cap.6 R.E.2002 is unshakable. The evidence adduced by PW.3 and that in Exh.PE No.5 leaves no doubt that excessive force and violence were applied in executing the unlawful purpose. Besides, when PW.3's account on how he identified the appellant is evaluated together with the appellant's own narration in his Page 3 of 5 · cautioned

statement (Exh.PE3) forms unbroken chain of events linking the appellant. I share the trial court's findings on that evidence. Additionally, the seized air conditions are well linked to the invasion and robbery that · occurred at PW.4's godown. In all, the appellant does not suggest that the incident never happened and his alibi is defeated by his colleagues PW.3, DW.3 and his own confession. As it is, the rule that even where confessions are admitted but after conducting an inquiry it is prudent for a trial court whenever it is feasible to get corroborating evidence (See: Jackson Mwakatoka and 2 others Vs. R [1990] TLR 17), the case against the appellant got corroborating evidence from PW.3, the destroyed gun, seized air conditions, PW.3's PF.3 and DW.3. That evidence tells that the appellant had an upper hand in the commission of the two offences. It is well settled position in our law that under normal circumstances appellate courts are bound by trial court's findings as to the credibility of witnesses, save only if there are circumstances on the record which call for a reassessment of their credibility (see: Omari Ahmed v Rep. [1983] TLR 52, Ali Abdallah Rajah v Saada Abdallah Rajah & others [1994] TLR 132, Adventina Alexander v Rep., Cr. Appeal No. 134 of 2002 (unreported). In this case I have not found good reasons to justify my interference to the trial court's findings

on the reliability and credibility of the witnesses it believed. From the foregoing analysis, with due respect to the appellant and Ms. Magambo, I reject the appellant's grounds in support of the appeal. Therefore, the Appellant's appeal is hereby dismissed in its entirety. Page 4 of 5 ,. However, as the trial court did not prescribe how the two sentences should be served, acting under section 366(1)(a)(ii) of the Criminal Procedrue Act, Cap.20 R.E. 2002 I order both sentences to run concurrently. I order accordingly. .FELESHI

JUDGE Delivered in the presence of the Appellant and Ms. As r the learned State Attorneys, for the Republic, the Respondent. ~ right of Appeal explained ----=--- /;__ __,._ ,,, 0GRfo~ ' \ 1\ Ii I • ~~~ I( ,/j 1~)1 ~ !f)j . .FELESHI ~ ___,/1/.i..,l" l UDG E '-..~_*;/ 31/7/2015 Page 5 of 5