RICHARD MWAKYEMBEVS R

IN THE HIGH COURT OF THE NITED REPUBLIC OF TANZANIA (IN THE SUB-RE ISTRY OF SHINYANGA) AT HINYANGA CRIMINAL AP EAL NO. 40524/2024 (Originating from Criminal Case No.6/. 023 from the District Court of 8ariadi District at 8ariadi) RICHARD 5/0 MWAKYEMBE @ CHA BULIO lOSEPH APPELLANT WERSUS THE REPUBLIC RESPONDENT l DGMENT Date of Last Order: 19.03.2024 Date of Judgment:30.04.2024 MWAKAHESYA, l.: In the District Court of ariadi District at Bariadi, the appellant, Richard Mwakyembe @ Chambu io Joseph, was tried with the offence of Armed Robbery contrary to secti n 287A of the Penal Code. At the end of the trial, he was convicted and s ntenced to thirty years imprisonment. It was the prosecution's c se that on the night of 13.12.2022, the appellant and two others, who id not stand trial, armed with iron bars 1 broke into the house of H. 2520 Cpl. Edward (PW2) and threatened Malugu Juma Wambura (PW3), an occupant of the house, to keep silent and lie down. Having done so the appellant and his comrades made away with a television; a subwoofer; a phone make Tecno; two tin pots; a glass table; and a bed sheet, the property of PW2. The appellant was, on 27.12.2022, arrested by PW2 in possession of the television and subwoofer. Subsequently, he was tried, convicted, and sentenced as alluded earlier. Dissatisfied with the conviction and sentence he has preferred the present appeal couched on five (5) grounds which are to the effect that: 1. The prosecution side failed to prove the case beyond reasonable doubt and the ingredients of armed robbery were not proved and neither were the offensive weapons brought in court as exhibits; 2. The trial court erred in law and in fact to hold conviction despite contradiction in evidence adduced by PW2 and PW3; 3. The learned trial magistrates' court erred in law and in fact to hold a conviction on weak evidence adduced by PW2 because he did not tender in court receipt(s) of his stolen property; 4. The prosecution side failed to parade before the court the bar attendant to prove that, she had the phone which she obtained from the appellant; and 2 5. The prosecution framed the evidence adduced by PW2 which was not corroborated. At the hearing of the appeal the appellant appeared in person, unrepresented, while the respondent Republic enjoyed the services of Ms. Nyamnyaga Magoti, learned State Attorney. The appellant adopted his grounds of appeal as contained in the petition of appeal and asked for the respondent to reply while reserving his right of making a rejoinder. Ms. Magoti, having indicated that she was resisting the appeal went on to respond to the grounds of appeal as they appeared on the petition of appeal. Submitting on the first ground of appeal, the learned State Attorney was of the view that, the offence of armed robbery was proved beyond reasonable doubt. She cited the Court of Appeal decision in Shabani Said Ally vs Republic, Criminal Appeal No. 270 of 2018 (unreported), where the essential ingredients of the offence of armed robbery were set out. The same being: proof of theft; use of a dangerous weapon before or after the commission of the offence; and the weapon should be used against the victim. It was her submission that, the prosecution was able to satisfy all the ingredients. 3 The learned State Attorney made reference to page 19 of the trial court's proceedings where PW3 testified as to how he was ambushed, while at home, and the perpetrators making away with household items. This, she submitted, proved the ingredient of theft. Regarding the use of a weapon, the learned State Attorney submitted that, PW3 also testified that the perpetrators threatened him with an iron bar before the theft. Ms. Magoti submitted further that the evidence of PW3 is corroborated by PW2 who testified that when he got home, he found his property missing, the same being: a television; subwoofer; small table; cooking pots; bedsheets; and a phone. PW2 also testified that he found the items at the appellant's home. As to the identity of the perpetrators, Ms. Magoti submitted that, PW3 who is an eyewitness, identified the appellant because he knew him before, because previously he came to ask for manual labour (mowing the lawn), and PW3 was able to identify him through electrical light. She submitted further that, one Kushaha Ndakama, PW1, also testified that he had seen the stolen items. 4 Responding to the appellant's contention that the weapons were not brought to court, the learned State Attorney submitted that, they were not brought because they were not found. She urged the court to dismiss the first ground of appeal because it lacked merit. On the second ground of appeal, the learned State Attorney briefly submitted that, PW2 and PW3's testimonies do not have contradictions and the appellant has not elaborated the contradictions and how the same have prejudiced him. She urged the court to dismiss this ground as well. On the third ground of appeal which Ms. Magoti submitted that, it is true that, PW2 did not tender receipts to show that he was the owner of the stolen properties, however he proved his ownership when he testified as to how he received a phone call and was told that his items were stolen, PW2 also listed the items and identified them when he went to arrest the appellant. It was her submission that, the third ground of appeal should be dismissed. Replying to the fourth ground of appeal, the learned State Attorney conceded that, the bar attendant was not called to testify. However, she submitted further that, even without the bar attendant the prosecution was 5 still able to prove the offence. She urged the court to dismiss this ground for being baseless. As to the fifth and final ground of appeal, the learned State Attorney submitted that, PW2 testified under oath and his evidence was corroborated by PWS, PW3, PWl and PW4, thus, the prosecution's evidence was not framed. She prayed for dismissal of this ground and the appeal in its entirety. In rejoinder, the appellant reiterated that, the respondents had stated that there was a person to whom he, the appellant, had sold the phone but that person was not brought to court to prove that. He urged the court to allow his appeal since his grounds of appeal were meritorious. Having analyzed the parties' submissions, the evidence on record and the law, this I shall now proceed to determine the appeal. First and foremost, I subscribe to the learned State Attorney's submission that, to prove the offence of armed robbery the key ingredients are proof of theft; use of a dangerous weapon before or after the commission of the offence; and use of the weapon against the victim. This was laid down in Shabani Said Ally vs Republic (supra). u The evidence on record suggests that PW2, the owner of the stolen items, working on a tip from a fellow police officer working at the cybercrimes division, went on to retrieve the stolen phone from one Anna and was subsequently led to the appellant where he arrested the appellant and retrieved the television and subwoofer which were stolen from his house. However, there is nowhere on record that PW2 proved ownership of the stolen items apart from merely stating that the same belonged to him. PW2 did not provide any distinctive marks apart from stating that, the phone was Tecno by make and blue in colour and had a black cover. Likewise, for the subwoofer which he stated that the brand was "Aborder". PW2did not produce even a single receipt to prove ownership of the stolen items. Paradoxically, PW1, one Kushana Ndakama, testified that, on 15.12.2022 the appellant had approached him with a television, a subwoofer and a smartphone make Tecno and offered to sell him the said items. When PWl inquired if the appellant had a receipt and found out that he did not, PW1 opted out of buying them. This shows that, a receipt is important in proving ownership and that is why PW1, in the absence of a receipt, thought it was not safe to buy the items. Now if we are to think 7 r along those lines, then surely it is not safe to take PW2's words by themselves to prove ownership of the stolen items without him adducing further evidence. PW2 was not the investigating officer, however, rather strangely, he was the one who retrieved the phone and arrested the appellant and retrieved more items. PW2 had a vested interest in the matter. It is not clear as to why he usurped the powers of the investigator and decided to take over the investigation himself, and on that note PW2's evidence should be approached with caution, see Joseph Mkumbwa and Another v. The Republic, Criminal Appeal No. 94 of 2007, CAT (unreported) where when dealing with the evidence of a witness whose money was stolen the Court had this to say (page 23): " ..It will be recalled that this is the witness whose money was robbed. and was not therefore free from biss, because of his vested interests in recovering it 50/ his evidence was suspect and prone to exaggeration and should therefore/ have been treated wIth a lot of caution and in practice it should have been corroborated by some other independent evidence.// It goes without saying that, even when PW2 purported to identify the television through its serial numbers when he was testifying in court it 8 r was a mere charade he had been given the property by the storekeeper of Bariadi Police Station in order to take them to court. In the absence of proof that the items were PW2's and in the manner that the said witness interfered with the investigation while clearly, he had interest in the matter, this court finds that the first ingredient of the offence of armed robbery, that is, theft was not proved. Turning to the issues of identification. PW2 gave sworn evidence that, he knew the appellant because he had met him before. It should be stated that PW2 was not at the crime scene and therefore he cannot be in the position to identify the perpetrator of the robbery. It was PW3 who witnessed the robbery. PW3 testified that, on the material day at around OOOOhrshe was invaded by three people who ordered him to lie down, he testified further that, he saw those people because there was electrical light which was bright coupled with the fact that it was the second time he was seeing one of them. Revisiting the guidelines on visual identification as stated by the Court of Appeal in Waziri Amani vs. Republic [1980] TLR 250 the r same being: the time the culprit :as under the witness's observatio witness's proximity to the culprit when the observation was made, the duration the offence was committed, if the offence was committed in the night time, sufficiency of the lighting to facilitate positive identification, whether the witness knew or had seen the culprit before the incident and description of the culprit. PW3 did not specify the proximity between him and the appellant and the amount of time that he had the culprits under observation. When he was re-examined, he testified that the culprits used about twenty (20) minutes to carry out the crime. However; it cannot be taken that the 20 minutes means the period that he had the culprits under observation; what it means is that it took an entire 20 minutes for the robbery to take place. Moreover, PW3 stated that, once the robbers broke into the house he was ordered to lie down. This raises serious doubts regarding identification of the appellant, because if the witness was lying down then it must have been difficult if not impossible to observe the culprit(s) and make proper identification. Also, one would expect that, after the appellant was caught an identification parade would be held in order to ascertain if PW3 could make a positive identification, but that was not done. PW3 only came to identify the appellant when the latter was on the dock. Dock identification being 10 r the weakest form of identification does not in anyway advance the respondent's position that, the appellant's identification was watertight, see Joseph Mkumbwa v. The Republic (supra) where it was held that: " ..dock Identification or identification in police custody without a previous identificationparade is of little or no value...// Thus, regarding the identification of the appellant, the same.leaves a lot of doubts which can only be resolved in the appellant's favour. There is also an issue of the appellant's cautioned statement. It was retracted during trial which made the trial court hold an inquiry. The same was subsequently admitted (Exhibit P4). I am aware of the position that a court may convict on a retracted/repudiated confession even without corroboration, see Dickson Elia Nsamba Shapwata and Another v. The Republic, Criminal Appeal No. 92 of 2007, CAT-Mbeya (unreported). However, I think based on the circumstances of this case, especially the way the investigation was carried out and the conduct of PW2 which verged on vigilantism, I am of the view that corroboration is desirable in this case, and the same is wanting. 11 PWS who witnessed the seizure of the mobile phone, the arrest of the appellant and seizure of various items did not identify the certificate of seizure (Exhibit P1) when she testified during trial, thus it is only her word that she signed the same on 27.12.2022. Even the purported items that were seized at the homestead of the appellant were not shown to PWS and identified by her. This was a rather serious lapse on the part of the prosecution, which also works in the appellant's favour. Suffice to say, in the absence of proof of theft and positive identification that the appellant was amongst the perpetrators, the offence of armed robbery was not proved beyond reasonable doubt. and neither was any offence whatsoever. As a result, I find that the first ground of appeal has merit and I hereby uphold it. Having done so, the said ground is enough to dispose of the appeal in its entirety and covering the remaining grounds only morphs into a futile exercise. I therefore allow this appeal and set aside the conviction and quash the sentence passed by the trial court. The appellant is to be set at liberty unless he is held for another just cause. 12 It is so ordered, DATED at SHINYANGA this 30th day of April, 2024 N.L. MWAKAHESYA JUDGE 30/04/2024 13