Judgment Criminal Appeal No 18911 of 2024 new tanzlii

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA

DAR ES SALAAM SUB REGISTRY

AT DAR ES SALAAM CRIMINAL APPEAL N0. 18911 OF 2024 (Appeal from the decision In the District Court of Kinondoni at Kinondoni given before (Hon. R Rugemalila -PRM) dated on 24th day of October,2023 Originating from Criminal Case No. 250 of 2021) ASHIRAF ALLY @SUPERDOLL ............................ 1ST APPELLANT JACKSON MARWA @CHACHA ............................ 2ND APPELLANT

VERSUS THE REPUBLIC ...................................................... RESPONDENT

JUDGMENT MKWIZU,J The appellants were charged in the District Court of Kinondoni with armed robbery, contrary to Section 287A of the Penal Code [Cap 16 R: E 2019]. The appellant was convicted and sentenced to serve thirty (30) years in prison following a full trial. They are dissatisfied with the trial’s decision and have raised four grounds of appeal, as follows: 1. That the Appellant was incorrectly convicted based on visual identification evidence of PW1, which was not credible and probable enough to eliminate the reasonable possibility of 1 mistaken identity and or recognition ofthe Appellants.

2. That the learned trial magistrate erred in law and fact to convict the appellants based on invalid confessional statements (Exhibit P4 and P6), which were illegally recorded by PW2 and PW4 and unprocedural tendered in court exhibits.

3. That the learned trial magistrate erred in law and fact to place reliance on the prosecution evidence without the same being assessed in line with the defence evidence, which cast a reasonable on the prosecution on case ought to have been used in favour of the appellants.

4. That the learned trial magistrate erred in law to convict the appellants in a case which was not proved beyond reasonable doubt by the prosecution side against the appellants. When the matter came for a hearing on 23/9/2024, the court ordered that the appeal be resolved through written submission. Both parties filed their submissions. In response, the respondent supported both, the convention and sentence, opposing the appeal. In their submission, the appellants condensed grounds 1,2 and 4 into a central issue: the appellants were wrongly convicted based on the unproved case. They argued that, according to the trial court's judgment, the appellants' conviction hinged on the evidence of police officers PW2 2 and PW4, as well as the cautioned statements, Exhibits P.E4 and PE6, which were allegedly made by the appellants confessing to robbing PW1 but admitted in violation of the law. The first appellant's statement was accepted without any inquiry into its voluntariness despite being repudiated. In contrast, the second appellant's cautioned statement was recorded in contravention of section 50(1) of the CPA without the trial court's resolution on the issue of timing. They relied on Twaha Ali And Others V.R, Criminal Appeal No.78 of 2004 (unreported), Seleman Abdallah And 2 Others V.R, Criminal Appeal No.384 of 2008 (unreported), Rashid Et Another V.R [1969] E.A, Kinyori Kariutu

V.R, [1956] 23 EACA480 and Ezekia Simbamkali V.R, HCD No. 192 asking this court to find the evidence of Pw2 and Exhibit P.E4 as invalid and liable to be expunged from the record Attacking PW1’s credibility, they claimed that, according to PW1's evidence, she was assaulted by more than six individuals at 05:30 hours while she was in the bushes urinating, suggesting that it was still dark early. They cited John Jacob V.R, Criminal Appeal No.92 of 2009; Kurubone Bagirigwa And Others V.R, (Criminal Appeal No.132 of 2015) (unreported) in support of their arguments that Pw1 evidence regarding the identification or recognition of the appellants was neither credible nor probable enough to eliminate a reasonable possibility of mistaken 3 identification and/or recognition. They urged the court to find the case against the appellants unproven, allow the appeal, overturn the conviction, quash the sentence, and release the appellants. In response to the first, second, and fourth grounds of appeal, the State Attorney Ms. Mossi Kaima acknowledged that the trial magistrate erred in convicting the appellants based on PW1's visual identification, the invalid confession statements from PW2 and PW4, and the improper tendering of the respective exhibits. She partially concurred with the appellants regarding the caution statements (Exhibits PE.4 and PE.6), noting that after the first appellant

repudiated his statement, an inquiry should have been conducted. She relied on Jumapili Mysyete v Republic, Criminal Appeal 110 of 2014 (Unreported). She noted the ambiguity surrounding the timing of the second appellant's arrest, which resulted in the inference that the caution statement may have been procured outside the legal timeframe stipulated in Section 50(1) of the Criminal Procedure Act. She implored the court to expunge the caution statements from the record. The state attorney quickly asserted that even if the caution statements are disregarded, the prosecution has strong evidence supporting PW1's testimony. PW1 identified the accused as robbers and detailed the incident, noting the lighting, her proximity to them, the duration of the encounter, 4 and her prior acquaintance. Her testimony shows recognition, not just identification, as she understood each appellant's role and aided in their arrest. During both examinations in chief and cross-examination, PW1 exhibited remarkable confidence in recounting the events and specifying the actions of each individual involved. PW3's visit to the crime scene, as described on pages 38-39, revealed PW1's underpants in an unfinished house, which supports her account and reinforces the appellant's culpability. Additionally, PW5 indicates that PW1 actively identified and apprehended the appellants. Testimonies from PW2 and PW4

corroborate that the appellants confessed. This evidence supports the credibility of PW1's testimony and underscores the strong case against the appellants. She contended that the contradiction between PW1 and other witnesses pertained only to the arrest of the appellants, which is not the subject matter of the armed robbery accusations against them. She also insisted that the appellants' conviction did not rely solely on the evidence of PW2 and PW4. Citing the decisions in Kaimu Saidi v. Republic, Criminal Appeal No. 391 of 2019, and Siza Patrice v. Republic, Criminal Appeal No. 19 of 2010 (both unreported), she invited this court to re-evaluate the entire evidence and reach its own conclusion. The rejoinder submissions are essentially a repetition of the appellant's submission in chief and, therefore, will not be reproduced in this judgment. 5 After considering the submissions from both parties and the court records, the main issue at hand is whether the appeal has merit. In deciding this appeal, I will also seek guidance from the Court of Appeal of Tanzania in Mapambano Michael @ Mayanga vs. Republic, Criminal Appeal No. 258 of 2015, which noted that the first appellate court must subject all the evidence on record to a fresh evaluation to reach a decision that may align with the trial court or differ altogether. On the validity of the Cautioned statements (Exhibits PE4 and

PE6) , the record on pages 23 and 54 of the proceedings clearly shows that when PW2 and PW4 wanted to tender the cautioned statements, the 1st appellant objected to it. His concerns were that: “I object the tendering of the statement, there is no proof that this is my statement, there is no proof that my statement was recorded, I don’t know the law but this is not my statement” In other words, the first appellant repudiated his statement. The practice has been that after the appellant's objection, the trial court should have halted proceedings and conducted an inquiry to determine the voluntariness of the cautioned statement. This position was expressed in Twaha Ali and Five others vs Republic (supra), where the Court reiterated the necessity to conduct an inquiry or trial within a trial to satisfy 6 itself regarding the voluntariness of the cautioned statement after the accused had repudiated or retracted it. It said. “If that objection is made: after the trial court has informed the accused of his right to say something in connection with the alleged confession, the trial court must stop everything and proceed to conduct an inquiry or a trial within a trial into the voluntariness or not of the alleged confession. Such an inquiry should be conducted before the confession is admitted in evidence." Since the learned trial magistrate did not conduct an inquiry after an objection

was raised, I agree with the learned State Attorney that it was improperly admitted into evidence. The second appellant's statement contains issues. Although it is evident that the statement was recorded on 31 May 2021, the court records do not provide any evidence specifying the exact date of the appellant's arrest. PW2 asserts he was arrested on 31 May 2021; however, PW5, who brought the suspects to the police station on that date, does not identify the second appellant as one of those he apprehended.PW5's testimony on page 73 of the proceedings record reveals that he did not recognize the second appellant among the accused he arrested, noting that he first saw him in court. The differences between the accounts of PW1 and PW5 cast doubt 7 on their credibility. In his own words, on page 73 of the proceedings, the arresting officer was recorded to have said “On that day I arrested 3 people. It was 2nd accused, 4th accused and 5th accused. “ The second appellant in this case appeared as the third accused; therefore, he was not among those arrested on 31 May 2021. Consequently, I agree with both the appellants and the learned State Attorney that the appellants’ cautioned statements were admitted in contravention of the law. I thus expunge them from the records. The second important issue is the identification of the appellant by the victim,visual identification. The law on visual

identification is well established. Numerous decisions emanating from the Court of Appeal have underscored that visual identification evidence constitutes one of the least reliable forms of evidence; such that no court should place reliance on such evidence unless all potential avenues for mistaken identity have been thoroughly considered and exhausted eliminated and the court is completely satisfied that the evidence presented is watertight. See Waziri Amani v. Republic (1980) TLR 250; Raymond Francis v. Republic (1994) TLR 100; Issa Mgara @ Shuka v. R., Criminal Appeal No. 37 of 2005 (unreported); Mengi Paulo S. Lihana & Another v. R., Criminal Appeal No. 222 of 2006 (unreported); and Boniface s/o Siwinga v. R., 8 Criminal Appeal No. 42 of 2007(unreported). I have examined the evidence. It is undisputed that the victim knew the appellants. She identified them at the shop veranda, where they were seated, ten of them, at 5:00 a.m., with the help of an electric light, before the complained invasion. While she mentioned the presence of daytime light, she did not clarify its significance in her identification. She identified around ten boys in total, including the appellants. No connection was made between the ten boys seen seated at the shop veranda and the five who attacked her. Again, despite her claims of prior acquaintance, the victim didn’t identify the accused immediately

after the incident. Mwajuma and Mama Mwajuma, whom she met afterwards, did not testify. PW3, the police officer, reported that the victim named the accused, but the victim herself did not confirm this before the court. The alarming issue would be, if the accused was indeed named to PW3 at the police on 23/5/2021, why was it necessary for the victim to call in additional forces, the JWTZ officers, on 31/5/2021 to arrest a well-known accused who had already been identified to the police almost seven days prior. In addition to the above, PW5, the arresting officer, could not inform the court whether he was ever made aware of the suspects' names or descriptions. Instead, he was categorical that the victim did not mention 9 the culprits to anyone after the incident. In the case of Chacha Jeremiah Murirni and 3 Others vs. the Republic, Criminal Appeal No 551 of 2015, which cited with approval a decision in Swalehe Kalonga & Another v. Republic, Criminal Appeal No. 45 of 2001, the Court of appeal observed: “The ability of a witness to name a suspect at the earliest possible opportunity is an all-important assurance of his reliability. " In Marwa Wangiti Mwita &. Ahother v. Republic [2002] TLR 39; the court said: "The ability of a witness to name a suspect at the earliest opportunity is an important assurance of his reliability, in the same way as unexplained delay or complete failure

to do so should put a prudent court to enquiry". Again, in the case of Yosiala Nicholaus Marwa and 2 Others v.Republic, Criminal Appeal No. 193 of 2016 [2019] TZCA 147 (9 April 2019), while discussing the issues of visual identification, the Court stated thus: "1. In every case in which there is a question as to the identity of the accused the fact of there having been given the description are matters of the highest importance of which 10 evidence ought always to be given, first ofall ofcourse by the person who gave the description or purports to identify the accused and then by the person to whom the description was given.” The principles that govern visual identification hold significant importance in this case. Although PW1 claimed to be familiar with the appellants, the circumstances surrounding her identification during the incident do not adequately eliminate the risk of mistaken identity. Her failure to promptly name and describe the suspects to the first person she encountered, as well as to the police and the arresting officer, casts significant doubt on her credibility, raising serious questions about the accuracy of her identification. In a criminal case, the foundation of justice firmly relies on the prosecution's burden of proof enshrined under section 3(2)(a) of the Evidence Act, Cap 6 RR 2022 as elucidated in a plethora of authorities, including Ahmad Omari vs

Republic, Criminal Appeal No. 154 of 2005 (unreported) and John Makolobela Kulwa Makolobela & Another @Tanganyika vs Republic (2002) TLR 296, to name just a few. In the present matter, the absence of the cautioned statement, coupled with the frailties of the identification evidence, leaves the court without a solid foundation to uphold the appellant's conviction. Therefore, the 11 prosecution has not met the stringent threshold required. For the foregoing reasons, I find this appeal to be meritorious. The prosecution failed to prove its case to the required standards. The appeal is allowed with an order to release the accused person from prison unless held therein for another lawful cause. DATED at DAR ES SALAAM, this 14th MARCH 2025 E. Y Mkwizu Judge 14/ 3 / 2025 12