ABDUL RAMADHANI VS R

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MWANZA SUB REGISTRY) AT MWANZA CRIMINAL APPEAL NO 117 OF 2023 (Arising from the Judgement of the Resident Magistrate's court of Geita, original Criminal case 309 /2021) BETWEEN ABDUL S/O RAMADHAN............................................................. APPELLANT VERSUS THE REPUBLIC........................................................................ RESPONDENT JUDGEMENT 30™ & 30™ August, 2024 A. MATUMA, J. The appellant herein stood charged in the Resident Magistrate's court of Geita at Geita for attempt Armed Robbery contrary to section 287B of the Penal Code, Cap. 16 R.E 2019. He was alleged to have attempted to steal a Motorcycle with Registration No. Me 795 CYT, make SANLG valued at Tshs. 2,250,000/= from one Erick s/o Deus on the 2nd any of November, 2021 at Chibingo village within the District and Region of Geita. It was further alleged that in the course of such attempt to steal, the appellant and one who is at large wounded the victim with a machete. At the trial the prosecution brought Erick Deus as PW1, G3404 DC Alfred as PW2, D6356 D/Sgt Moris as PW3 and Tuntufye Abraham Mwakaje as PW4. The appellant stood for his own defense with no any other witness or exhibit. The trial court finally found that the prosecution case was proved beyond any reasonable doubts and thus convicted the appellant and sentenced him to suffer a custodial term of fifteen years. The appellant is aggrieved hence this appeal with six grounds all of which revolving around a single complaint to the effect that the prosecution case was not proved against him beyond any reasonable doubts. In it the complaints are; that the cautioned statement was wrongly relied as it was procured involuntarily, his identification was not well established for want of arresting officers to clarify on the manner of his arrest, reliance on hearsay evidence of police officers, failure to tender PF3 of the victim and failure to tender the weapon allegedly used in the commission of the offence. At the hearing of this appeal, the appellant was present in person while the respondent was represented by M/S Brenda Mayala learned State Attorney. / 2 The appellant had no more explanations on the grounds of appeal. He reiterated them as written and prayed this court to consider such grounds and allow the appeal. On her part the learned state attorney opposed this appeal and called for its dismissal. She responded to each ground stating that the Cautioned statement was admitted in evidence without objection and therefore taken to have been proved against the appellant. She cited the case of Nyerere Nyague versus The Republic, Criminal Appeal no. 67 of 2010 (ZKV) to the effect that if the accused intends to object authenticity of the Cautioned statement must do so before it is admitted in evidence. About failure to call some witnesses as complained by the appellant supra, the learned state attorney argued that under section 143 of the Evidence Act there is no particular number of witnesses which is required to prove a certain fact. She also disputed that police witnesses gave hearsay evidence. About the failure to tender the PF3 of the victim and the weapon alleged to have been used in the attack, the learned state attorney argued that it is not the requirement of the law that in proving the offence which the appellant stood charged there must be a PF3 and the weapon used as exhibit. She then concluded that the prosecution case was proved beyond any reasonable doubts and called this court to dismiss this appeal. The appellant in rejoinder repeated his arguments that he trusts the strength of his grounds of appeal against the submission of the learned state attorney. Having heard the parties for and against this appeal, I now determine it as follows; It is undisputed fact that the victim in this case being a bodaboda was hired by two unidentified people to carry them to Chibingo. That was night time and he did not identify then by face or name. The two robbers attacked the victim who ended in losing consciousness and when he gained his consciousness, he found some people beating the appellant. It was those people who told him that they found the appellant assaulting him in an attempt to steal his motorcycle. The victim PW1 did not however confirm that such person (the appellant) was one of his passengers who attempted to rob him at the time he was still conscious. In that respect the evidence of the victim that the appellant was found assaulting him at the time he was unconscious is nothing but hearsays. Only those people who told the victim such a story ought to have testified to that effect and accord the appellant an opportunity to cross examine them. / 4 In that respect the appellant's complaint that failure of the prosecution to parade the witnesses who arrested him for them to clarify the manner in which he was arrested holds water and accordingly allowed to the effect that the identification of the appellant to the crime is questionable. The argument of the learned state attorney that under section 143 of the Evidence Act they were not obliged to call many witnesses does not stand in the circumstances of this case. In this case those people who are allegedly found the appellant assaulting the victim were material and necessary witnesses in the prosecution case because without their evidence the appellant cannot be held to have been identified as the perpetrator of the crime. Samwel Japhet Kahaya Versus Republic Criminal Appeal No. 40 Of 2017 the Court of Appeal held that the prosecution cannot take refuge under section 143 of the Evidence Act supra when it fails to summon the material witnesses. As I have said the arresting witnesses were material and necessary witness for the prosecution case because them alone could give evidence relating to the identification of the appellant. That, being the case, the only remaining evidence which incriminates the appellant is his own cautioned statement exhibit P3. Such exhibit as rightly argued by the learned state attorney was admitted in evidence without objection and as such it is presumed to have been voluntarily procured. It is however the fact that such statement despite the fact that it was not objected during admission, the same is problematic as to what time it was recorded. At the front page it discloses that the recording of the statement started at 06:12 hours and the time of finishing the records was at 17:15 hours. This means the appellant was subjected to an interrogation for more than eleven hours without a break. On this the appellant is complaining that this statement was procured without his voluntariness. This complaint cannot be overruled out in the circumstances that he was subjected to the interrogations for unreasonable period of time and without indication that the police offered him a break but he was willing to continue. In the circumstances I cannot rely on such statement to uphold the conviction of the appellant. With all these deficiencies in the prosecution case, I find that the prosecution case was not proved to the required standard against the appellant and thus he was wrongly convicted by the trial court. I thus allow this appeal on the ground that the appellant was not identified by the victim and those who are purported to have arrested him at the 6 crime scene were not called to testify. That having been said, I quash the conviction of the appellant, set aside the sentence of fifteen years which was meted against him and order his immediate release from custody unless otherwise lawfully held for some other lawful use. It is so ord Judge 30/07/2024 7