Judgment CHARLES MACHAGE

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY AT MWANZA CRIMINAL APPEAL NO. 9497 OF 2024 (Arising from Criminal Case No. 102 of 2023 in the District Court of Nyamagana) CHARLES S/O MACHAGE @ PANDEE ……………………..………1st APPELLANT AMRI S/O HAMISI @ DD @ MKOME…………….……………….2nd APPELLANT VERSUS THE REPUBLIC………………………………………………..….…………RESPONDENT JUDGMENT 12th August & 11th September, 2024 ITEMBA, J. The appellants were arraigned before the District Court of Nyamagana District in Criminal Case No. 102 of 2023 for the offence of Armed Robbery, contrary to Section 287A of the Penal Code Cap 16 RE 2022. They were convicted and sentenced to 30 years in prison. Before the trial court, it was alleged that on 30/07/2022 at Butimba area within Nyamagana District, the appellants did steal one wallet with TZS. 280,000/= and one mobile phone makes Infinix Smart OS the properties of one Nyaki John, herein the victim. That, immediately before and after stealing they threatened and assaulted the victim with a knife in order to retain the said properties. Following 1 conviction and sentence, the appellants were aggrieved and preferred this appeal. The first appellant had six ground of appeal that; 1. That, the trial magistrate erred in law and fact to convict the appellants relying and acting upon unfavorable identification circumstances; 2. That, the charge was not proved to the hilt as it states the offence to have took place on 30/7/2022 whilst the victim nd PW2 alleged it to be on 30/8/2022; 3. That, albeit the cautioned statements of the accused persons were not relied and acted upon to pass conviction, but they were repudiated/retracted and needed corroboration; 4. That, the trial magistrate relied and acted upon inconsistence and contradictory evidence of PW8 who alleged to have referred the victim to Sekeu Toure and not Bugando contrary to the evidence of PW5, PW6 and PW7; 5. That, the victim failed to establish his ownership of the alleged stolen properties, and prosecution failed to call reliable witness who are fellow group members of the victim; and 6. That, the prosecution failed to prove the offence beyond reasonable doubt. On his part, the 2nd appellant presented eight grounds of appeal as follows; 2 1. That the Hon. Trial Magistrate erred in law by relying on cautioned statements of the 2nd appellant which was not read after admission. 2. That, the Hon. Trial Magistrate erred in law and fact when she held that the 2nd appellant was properly identified. 3. That, the victim did not mention the 2nd appellant to any witness whom he come across at first earliest time after the incident. 4. That, the Hon. Trial Magistrate erred in law and fact for failure to correctly evaluate and consider evidence on records and consequently reaching into a wrong finding. 5. That, the Hon. Trial Magistrate erred in law and in fact for failure to draw adverse inference because the prosecution failed to call the complainant fellow group member. 6. That, the Hon. Trial Magistrate fatally misdirected herself to convict the 2nd appellant on such weak evidence without any exhibit found in possession. 7. That, the Hon. Trial Magistrate erred in law and in fact for failure to consider the defence. 8. That, the Hon. Trial Magistrate erred in law and fact in convicting the appellants with the offence not proved to the standard required by the law. During hearing the 1st appellant was unrepresented, the 2nd appellant was represented by advocate Angelo James whereas the respondent had 3 the service of Japhet Ngusa State Attorney. The 1st appellant being a layman, only prayed for his grounds in petition of appeal to be considered. On his part Mr. James submitted that, the trial court relied on the cautioned statement (Exhibit P2) of the 2nd appellant as an exhibit which was not produced properly, it was neither cleared for admission nor read before the court. That, at page 17 of typed proceedings, there is no record as to how exhibit P1 was received, the court jumped to exhibit P2 without following any procedures. I was referred to the case of Robinson Mwanjisi and 3 others v R TLR [2003] 218 where it was held that a document must be cleared for admission and read. Regarding the 2nd and 3rd grounds it was submitted that, the court must warn itself before relying on evidence of visual identification as stated in the case of Waziri Amani v R [1980] TLR 250. That the evidence of the victim was too general as she mentioned the light without stating the gravity of light, no physical appearance of clothes which were explained, neither identification parade nor dock identification was done to identify 2nd appellant. That, the victim regained conscious at the hospital and the doctors came to testify but they did not tell the court that they were informed by the victim that the appellants are the one who attacked her. 4 Mr. James submitted on the 5th ground that, the court did not draw adverse inference against the prosecutions for failure to bring the victim’s friend named Mary who is alleged to have been with her at the scene. That, prosecution evidence was to the effect that, the victim and the said Mary stayed at the bar up to 2:00 am. That, the said friend knew that the victim had money from their social group (chama). That, since there was no other evidence to show that the victim was at the scene and she had money, the said Mary was the key witness and there are no reasons as to why she was not brought as a witness. I was also referred to the case of Omar Hussein and another v R Criminal Appeal No. 547 of 2017 (unreported). As to the 4th, 6th and 8th grounds he submitted that, the trial court did not asses the evidence properly. That, PW2 testified to have picked the victim from the scene of crime while unconscious and took him to Butimba hospital. At the same time, PW8 who treated the victim stated he attended the victim who was referred from at Sekou Toure hospital but there are no records of the patient being taken to Sekou Toure. That, at page 26 of proceedings, PW5 told the court that the victim was referred from Nyamagana hospital. Lastly, Mr. James submitted on the 7th ground that, 5 the trial court did not consider the defence of the 2nd appellant. That, the 2nd Appellant defend himself that the source of grudges between him and the victim was a woman, and even when he was summoned at the police on 7/8/2022, he was charged with having an affair with someone’s wife. That, this issue was supported by the victim, who testified to had relationship with the wife of the 2nd appellant before she got married to the 2nd appellant. In reply, Mr. Ngusa had a joint submission in respect of all grounds of appeal. Starting with identification, he argued that the appellants were identified by the victim according to page 7 of typed proceedings. That the victim explained that he knew the appellants before, they live in Mkuyuni they were in the the chama group and they were together that day. That, the source of light was good enough as the victim mentioned electric lights from the street and nearby shops. He insisted that, if the victim knew the appellant before there is no need for identification parade or any other identification because visual identification is enough as stated in the case Jumapili Msyete v R, Criminal Appeal 110 of 2024 (unreported) where the court explain categories of identification which is visual identification and identification by recognition. 6 He went further that, page 19 of the proceedings show that Exhibit P2 was read loudly before the court. That, it is not mandatory to call all witness in terms of section of section 143 of the Tanzania Evidence Act, Cap 6 R.E 2022. That, PW2 says she took the victim to Butimba District Hospital which is also known as Nyamagana hospital, and that contradiction with regard to Bugando or Sekou Toure if any, does not go to the root of the case because basically it shows that, the victim was injured and was treated. That, there is nowhere in the records showing there was another case against the 2nd appellant. He finalized his submission by stating that, the defence was considered by the trial and the ingredients of armed robbery were proved in line with the case of Shaban Said Alli v. R Criminal Appeal 270 of 2018 (unreported). In rejoinder, Mr. James submitted that, the law requires the victim to state immediately as to who attacked him. That, the cited case of Jumapili Msyete v R explains the principle of identification but it does not say if the victim knew the assailant before there is no need for identification parade and dock identification. Further, that there are no proceedings showing the cautioned statement being introduced and admitted in court. That, the evidence with regards to the hospital goes to 7 the root of the case because it is about whether the the victim was actually injured or not. I have considered the grounds of appeal and submissions of both parties. I find that the grounds of appeal by the appellants interrelate; for the purpose of consistency and brevity the fourteen grounds of appeal are combined into three main grounds that; 1. The trial magistrate erred in law and fact by relying on a cautioned statement which was repudiated, retracted, improperly admitted and not read after admission. 2. The trial magistrate erred in law to convict the appellants while the charge was not proved beyond reasonable doubt; and 3. The trial magistrate failed to consider the 2nd appellant’s defence. Starting with the first ground, the 1st appellant contends that the cautioned statements (exhibit P1 and P2) were retracted and repudiated therefore they could not be acted and relied upon without corroboration. On his part the counsel for the 2nd appellant argued that, the cautioned statement of the 2nd appellant was not properly admitted and it was not read after being admitted. I have read the whole judgement of the trial court. The cautioned statements were not relied in deciding to convict the appellants. Mainly the conviction was based on testimony of PW1 who is 8 the victim, the evidence of medical doctors (PW5, PW6 and PW7) and the PF3 (exhibit P3). Nevertheless, I will answer all contentions by the appellants. Starting with the argument by the 1st appellant, he was of the view that when the cautioned statement is retracted and/or repudiated it needs corroboration. I agree with this position. In the case of Geofrey Kitundu @ Nalogwa and another v. R, Criminal Appeal No. 96 of 2018 (unreported); the court re-affirmed the position when it said; We are alive that in the case of Abubakari Hamis and Another (supra), the Court underscored the need of looking for corroboration in support of the confession which has been retracted or repudiated. Yet, in the case of Festo Mwanyangila's case (supra) in which the case of Tuwamwoi (supra) was adopted with approval, it was emphasized that the court could enter conviction based on repudiated or retracted statement even if it is not corroborated, if the court is satisfied that such confession must be true. Therefore, it is a settled principle that, retracted or repudiated confession of the accused person requires corroboration or it can be relied upon without corroboration if the court is satisfied that such confession is nothing but the truth. In this matter at hand, I will not delve on 9 determining whether the cautioned statements of the appellants required corroboration because as I have mentioned, they were not relied by trial court in reaching its decision. With regards to whether the cautioned statement of the 2nd appellant was properly admitted and read after admission, it was the submission of the counsel for the 2nd appellant that exhibit P2 was not cleared for admission and read before the court. He was of the view that, there is no record as to how exhibit P2 was received the court jumped to exhibit P2 without following any procedures. It was the submission for the respondent that, the said exhibit was read after admission. I agree with the counsel of the 2nd appellant that, at page 17 and 18 of the typed proceedings there are no records showing how exhibit P2 was tendered and cleared for objection. Page 18 only shows that it was received and marked as exhibit P2. However, reading the handwritten proceedings of the trial court, the said exhibit was tendered by PW4 it was cleared for admission from both appellants, admitted and read loudly after admission. Logic dictates that, handwritten proceedings are most reliable on what transpired at the court as compared to typed, certified proceedings 10 which basically are made out of a second hand. My brother Hon. Mbagwa J. in the case of Shadrack Ambakisye vs Republic, Criminal Appeal No. 63 of 2021 had the following to say at page 9 and 10 of the judgment; ‘it is a settled practice and indeed cardinal principle of practice that whenever there is a dispute or impeachment of court record, it is hand written proceedings that must be resorted to ascertain the veracity of the court document to meet the ends of justice. I am also persuaded by the holding of my fellow learned Judge Tiganga in the case of Joseph Nyigana @ Baba Bhoke Appellant versus the Republic, High Court Criminal Appeal No. 218 of 2019, High Court of Tanzania at Mwanza when he held that; ‘I think I should go to the hand written original, because even the typed proceedings are certified from the original hand written’’’ (emphasis added) Likewise, in this matter at hand, reading the handwritten proceedings, I see no fault was made by the trial court in admission of the exhibit P2. There was a prayer from PW4 to tender it, both appellants were given an opportunity to challenge it and it was admitted and read loudly after admission. The first rephrased ground thus, lacks merit. With regards to the second ground, both parties contend that, the charge against the accused persons was not proved beyond reasonable 11 doubt for the reasons that one, the appellants were improperly identified; two, the charge read 30/7/2022 while the evidence of the victim and PW2 states the incidence to have occurred on 30/8/2022; three, there was contradiction with regards to whether the appellant was taken to Sekou Toure or Bugando hospital; four, the victim failed to prove ownership of the stolen properties; five, the trial court was supposed to draw adverse inference against the prosecution for failure to call material witness; six, no exhibit was found in possession of the 1st accused person; and seven, the victim failed to name the 2nd appellant at the earliest opportunity. Starting with contention that the appellants were improperly identified, I have considered the evidence on record. It is undisputed that, the victim knew the appellants before the incidence. It was the evidence of the victim that he managed to identify the appellants with the assistance of electric lights located at the road and shops near the crime scene. The victim stated in his evidence that, he knows the appellants’ residence as the 1st appellant is living at Mkuyuni and 2nd appellant is living at Chake Chake. Also, it is in record that the victim once had sexual relation with the 2nd appellant’s wife. Therefore, the evidence of the victim that he knew the appellants before the incidence was unchallenged. 12 The settled law is that, distinction need be drawn between identification and recognition. In this matter, the victim did not identify the appellants rather he recognized them at the scene of crime by the aid of electric lights. Recognition is more reliable than identification although mistakes in recognition of close relatives or friends are sometimes made as stated in the case of Abdul Ally Chande vs. Republic, Criminal Appeal No. 529 of 2019 (unreported) In the case of Baya s/o Lusana vs. Republic, Criminal Appeal No 593 of 2017 the Court of Appeal cited with approval the case of Issa s/o Mgara @ Shuka vs Republic, Criminal Appeal No. 37 of 2005 (both unreported), where it was held that; ‘We wish to stress that even in recognition cases where such evidence may be more reliable than identification of a stranger, clear evidence on sources of light and its intensity is of paramount importance. This is because, as occasionally held, even when the witness is purporting to recognize someone whom he knows, as was the case here, mistakes in recognition of close relatives and friends are often made.’ ( emphasis added) In the famous case of Waziri Amani v. Republic [1980] T.L.R 250 the Court of Appeal held inter alia that, all possibilities of mistaken identity 13 shall be eliminated before relying on evidence of identification. The Court of Appeal went further to outline facts to consider to see whether there was proper identification were outlined which are; i. the time the witness had the accused under observation; ii. the distance at which he observed him; iii. the conditions in which such observation occurred, for instance, whether it was day or night-time, whether there was good or poor lighting at the scene; and iv. whether the witness knew or had seen the accused before or not. In consideration of the above factors, in this matter, the incidence occurred at night at around 01:00hrs. There is no dispute that the victim knew the appellants before. The time which the appellants were under the observation of the victim was long enough. I say this because before the victim’s properties were stolen, it is in evidence that he was stubbed by the appellant on his ribs and forehead and the 2nd appellant was holding the victim’s hands. These incidences must have taken considerable amount of time to allow visual recognition. In respect of light condition at the scene, I am of the firm opinion that; light intensity is not an issue when the source of light is electricity. It may be an issue if the source of light is depending on other factors. 14 Examples are the moonlight which might be full moon or half-moon depending on the seasons. Also, the light of torch, solar and lamp may vary depending on fuel used. Therefore, I find that the electric light at the scene was enough to enable proper identification of the appellants. As regards the proof of stolen properties, looking at the elements of the offence of armed robbery it is not necessary for the suspect to be found in physical possession of the stolen property. Words of the victim were enough to stablish he owned the stolen properties as he was a reliable and competent witness. Under section 287A of the Penal Code, the law states that: A person who steals anything, and at or immediately before or after stealing is armed with any dangerous or offensive weapon or instrument and at or immediately before or after stealing uses or threatens to use violence to any person in order to obtain or retain the stolen property, commits an offence of armed robbery and shall, on conviction be liable to imprisonment for a term of not less than thirty years with or without corporal punishment. Therefore, the key elements there must be proof of stealing and there must be use of a dangerous weapon against the victim. The evidence of the victim, who was a competent witness, was enough to establish that 15 there was theft with or without the said properties being found. I have also noted from the testimonies of the medical doctors from different specialities; PW5 PW6 and PW7 and the medical report (exhibit P3). That, the victim was seriously injured and was in critical condition. That, the victim was stubbed with a sharp object, he had internal bleeding whereas following a surgery which involved opening his abdomen, 800mls of blood was sucked out of his stomach. That, his face was injured, tongue swollen and more blood was drained from his chest. Based on this evidence, there is also no dispute that the victim was injured by a dangerous weapon. I find that the element of the offence of armed robbery were met. In the same contention I disagree with the counsel for the 2nd appellant that one Med who is mentioned by the victim was material witness. The said person only met with PW1 at Butimba Sokoni and left at 22:00 hrs. There was no evidence from the victim suggesting that he revealed to ‘Med’ that he had money or that he saw the wallet or phone. Hence the said Med was not material witness. The next contention is that the victim failed to name the appellants to the medical doctors who attended him at the earliest opportunity when he regained consciousness. This issue will not detain me because 16 considering the critical health condition of the victim and that he was fighting for his life, naming the appellant to the doctors, would not have been a priority at that stage. The duty of PW5 PW6 PW7 was to prove that they medically attended the victim who was injured. Thus, they were not supposed to interrogate him on the attackers’ identity. The second ground therefore has no merit. As to the last issue, it was contended by the counsel for the 2nd appellant that the trial court failed to consider the evidence of the 2nd appellant that the victim had an affair with the 2nd appellant’s wife. I have read the judgement of the trial court. The evidence of the 2nd appellant was considered by the trial court but it was found to be of no value. At page 7 of the trial court’s judgment, it says; “With regards to the second accused defence that the case was fabricated by PWI because he took the victim’s wife also this court finds their defence to lack merit even the said wife was not called to testify on his side.” The trial court found that the 2nd appellant’s wife was supposed to be called as a witness to substantiate the appellant’s evidence. I agree with the trial court but with a different reasoning. There was no need for the 2nd appellant to call his wife because during cross examination the victim 17 confessed to had an affair with the said wife. That matter was undisputed. However, I disagree with the second appellant’s counsel on the argument that the said affair would have triggered the victim to frame a case against the 2nd appellant because the said relationship ended seven years before incidence and upon being probed by the court the 2nd appellant said the victim was his client in pool table business. In other words, the affair was no longer an issue between the victim and the 2nd appellant. And if that was the case why would the 1st appellant who has no such affair be involved? The third ground of appeal has no merit. In final analysis, the appeal is dismissed. The trial court’s decision is upheld. This being criminal proceedings, I order no costs. It is so ordered. Right of Appeal fully explained to the parties. DATED at MWANZA 11th Day of September, 2024. L. K. J. ITEMBA JUDGE 18 Judgment delivered under my hand and seal in the presence of both appellants, Mr. Japhet Ngusa State Attorney, Ms. Martha Mbosoli learned counsel holding brief for Mr. Angelo James for the 2nd appellant and Ms. Glady Mnjari, RMA. L. K. J. ITEMBA JUDGE 19