CRIMINAL APPEAL JACKSON MASOYA

IN THE HIGH COURT OF TANZANIA MUSOMA SUB REGISTRY AT MUSOMA CRIMINAL APPEAL NO. 000026000 OF 2024 REFERENCE NUMBER No. 202409102000026000 (Originating from Criminal Case No. 29 of2023 of the District Court of Butiama at Butiama) JACKSON S/O MASOYA @KIMO@MAYEGA............................. 1st APPELLANT HAMISI S/O KONYE @ FUNDI.............................................. 2nd APPELLANT JUMANNE S/O YOHANA @ MASALU........................................ 3rd APPELLANT JOSE S/O JUMA @ MAGIRI.................................................... 4th APPELLANT VERSUS THE REPUBLIC.......................................................................... RESPONDENT JUDGMENT 12th & 25th November 2024 M. L. KOMBA J.: It was on evening of 16/06/2023 where a victim, also will be referred as PW1 (Butiku Mgamba @ Nokwe) was heading to his home after a whole day long at his place of business. When reached few meters from his home he was stopped by a person whom he identified as 1st appellant and his fellow who demanded for money. They were equipped with machete and attacked PW1 before they took TZS 45,000/ from him. By assistance from Page 1 of 14 good Samaritans including PW2, the victim was taken to Hospital where he was attended by PW5 and who testified that victim has serious injuries on hand, lips and on his neck. Exhibit Pl was admitted. At the scene, victim managed to identify four attackers by names who then, the four named appellants were arrested and two others to make a total of six accused and were charged with offence of armed robbery contrary to section 287 A of the Penal Code, Cap 16 R. E 2022. They all denied the charge hence full trial. The trial Magistrate was convinced that prosecution managed to prove the offence against four above named appellants while two accused were acquitted. All appellants were sentenced to serve 30 years in prison and to pay compensation to the victim. Aggrieved by the conviction, they are here prosecuting their appeal basing on the following grounds: 1. That the trial court erred to collect sufficient evidence. That is to say the identification of the accused was not conducted properly simply there is no identification parade, in consistence witness testimonies and the prosecution side based only on caution statement of the first accused which was obtained through tortured, (sic) Page 2 of 14 2. That the trial court lacked on corroborative evidence. This conviction based only. That the prosecution failed to provide sufficient corroborative evidence Unking the accused to the crime, (sic) 3. That tiie trial court failed to look for prosecution witnesses' testimonies which was totally inconsistencies for both of the prosecution witnesses, (sic) 4. That the trial court erred to produce constitution right to the accused person this is to say there was no right to fair trial. Some of them there forced to sign caution statement but the trial court taken it into consideration, (sic) 5. That the trial court erred illegally in admission of some evidence. Some of evidence illegally obtained, which was without a warrant and under duress, (sic) 6. That tiie trial court failed to consider defenses of the accused persons. 7. That the trial court erred to procedural law. The law is open any procedural error during the trial process in amount for incorrectjury instructions, (sic) When the appeal was fixed for hearing, all appellants stood solo without representation while Republic was represented by Ms. Beatrice Mgumba Mr. Ngowi and Mr. Jonas Kivuyo, all State Attorneys. Page 3 of 14 When given time to defend their appeal, each appellants had short submission, in general they prayed this court to adopt petition of appeal and consider all grounds of appeal while retained their rights for rejoinder. Ms. Mgumba, State Attorney started by registering their position that respondent resist an appeal and started with the combined ground 1 and 2 of Petition of appeal on proving the offence beyond reasonable doubt. She went on submitting that prosecution relied on PW1, PW4 and caution statement of 1st accused which collaborates the prosecution evidence. She noted the complaints of appellants that they were not identified and there was no identification parade. She insisted that respondent relied on caution statement and Exhibit P2. She went on clarified that PW1 explained the 1st appellant went to his shop and he know him as they live in the same village. Then around 21:00 hours while on road with his motorcycle he was stopped by the 1st appellant who was accompanied by three other people and they started to beat him. PW1 managed to recognize them and mentioned the names of four people who robbed him, she insisted. About the light used at the scene, State Attorney clarified that appellants had torch and the motorcycle light was on. She insisted that visual identification was proper as per Makende Simon vs Republic, Criminal Page 4 of 14 Appeal No. 412 of 2017 and Waziri Amani vs Republic, 1980 TLR 250. She went on submitting that victim was given two options; to give robbers money or to die. About time spent at the scene she said the incident took reasonable time as victim was cut with machete and so the distance was short. Still in the combined ground, Ms. Machage submitted that victim told his son when he gains sense that he saw appellants who robbed him and he managed to mention their names as seen at page 15 of the proceedings and the same was testified by PW7 who was investigator. She supported her submission with the case of Makende Simon vs Republic (Supra) that ability of the victim to mention the attacker at the earliest stage is credit. She was firm that identification parade was not important because PW1 know appellants so there was no need of parade while persuaded this Court to be inspired by a similar stance once dealt by the Court of Appeal in Hassan Said Nundu vs Republic, Criminal Appeal No. 126 of 2023 that identification parade is for witness who he don't know accused. Arguing for the 3rd ground about inconsistence of prosecution witness, she denied existence of inconsistence among prosecution witnesses as all witnesses supported that victim was injured. Page 5 of 14 Then she combined the 4th and 5th grounds and submitted that appellants utilized their rights to be heard during trial and all appellants had an advocate during trial, she insisted they were full represented until 05/8/2024 when they informed the trial court that they shall defend themselves in absence of their advocate as they lost communication. About the evidence which was contrary to the law, she submitted that conviction was not based on solely cautioned statement but other prosecution evidence. She insisted that Exhibits were not illegally obtained, for instance the 1st accused objected tendering of his caution statement on ground that he was tortured. However, during inquiry, 1st appellant responded that on 19/06/2023 he was not interrogated but he signed a document. He further said on 25/06/2023 he was beaten by five police. It was her position that 1st appellant was beaten after he signed his statement. She insisted it was procured as per law and was not the only evidence. Ms. Machage went on submitting that appellants defence was considered as seen at page 7 of the judgment and trial Magistrate explained at para 4 why he did not believe what was told by 1st, 2nd, 3rd and 5th accused that was under the 6th ground and in the 7th ground, she submitted that it is not provided by law that when a person admits to commit an offence Page 6 of 14 has to be taken to justice of peace. The submission was made after this court demand clarification form appellants on what they mean on 7th ground. Finally, she prayed this court to uphold decision of the trial court as prosecution managed to prove armed robbery. I will tackle this appeal in line with submission of parties. Before doing so, I wish to restate the salutary principles of law that, one, a first appeal is in the form of a re-hearing and as such, this being the first appellate court, this court is duty bound to re-evaluate the entire evidence on record by reading it together and subjecting it to a critical scrutiny and if warranted arrive at its own conclusions of fact (see Iddi Shaban @ Amasi vs Republic, Criminal Appeal No. 2006). On the part of the first appellate court, the credibility of a witness can be determined in other ways namely, when assessing the coherence of the testimony of that witness and when the testimony is considered in relation to the evidence of other witnesses, including that of the accused person (see - Shaban Daudi vs Republic, Criminal Appeal No. 28 of 2001). The evidence will be evaluated while analyse all grounds of appeal as fronted by appellants, jointly, to find if prosecution manage to prove their case beyond reasonable doubts. Combining of grounds is normal practice Page 7 of 14 as was directed in Firmon Mlowe vs Republic, Criminal Appeal No. 504 of 2020 CAT that; We are aware of the settled position that the first appellate court is not bound and expected to answer the points for determination or issues as framed by the trial court in Criminal and Civil cases respectively. Indeed, it is not expected to deal with the grounds seriatim as listed in the petition of appeal. It may also if convenient, address the grounds of appeal generally or address the decisive ones only or discuss each ground separately.' As indicated earlier, the appellant was charged with the offence of armed robbery contrary to section 287A. The section reads as follows; '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, commite an offence of armed robbery and shall, on conviction be Hable to imprisonment for a term of not less than thirty years with or without corporal punishment.' In cases of these nature, the duty of prosecution has been mentioned in various Courts decision one of them is Shaban Said Aliy vs Republic, Criminal Appeal No. 270/2018 where key elements to be proved were Page 8 of 14 elaborated to be one; Theft, that property was taken, two; the use of dangerous weapon immediately before or after commission of offence and three; the use of weapon must be directed to the victim. See also John Madata vs Republic, Criminal Appeal No. 453 of 2017 It was said that victim managed to identify four robbers at the scene although he was unconscious. Prosecution maintained that when victim gains conscious, he was at the hospital with his son, Joseph Butiku and he told his son who robbed him that night. The said Joseph Butiku was not paraded as witness during trial and prosecution did not explain his whereabouts. If the 1st person to be told by the victim who robbed him was Joseph, it is settled that Joseph was not supposed to keep quiet, he was supposed to say so. See Chacha Jeremiah Murimi & Others vs Republic (Criminal Appeal 551 of 2015) [2019] TZCA 52 (4 April 2019) specifically at page 19. The victim was attended by PW5 who testified during trial that he was at his working station, Butiama district hospital where he received victim who was injured. After he attended the victim, he filled exhibit Pl. I had time to read exhibit Pl and noted that when PW5 provide description of injury sustained and type of weapon used, this witness writes the "injury was Page 9 of 14 caused by machete". Am wondering if PW5 was at the scene or he was shown the said machete by relatives who took victim to hospital. Can exhibit Pl still have the same value and weight which is supposed to be given? The answer is no as maker include information which he had no knowledge of. Exhibit Pl should not be maintained in record for that defect and I hereby expunge it from record. How the crime was committed, it was the prosecution evidence that 1st appellant used motorcycle which was hired from PW4. In his testimony, PW4 described his motorcycle with registration Number MC 708 CUY which was the same number mentioned by PW7 (see pages 35 and 51 of the typed proceedings respectively) and the motorcycle was admitted as Exhibit P4 via certificate of seizure Exhibit P3. Exhibit P3 explain that seized motorcycle bear registration number MC 708 CUY make King Lion black in color and have red cover. PW7 who was maker of the said exhibit when cross examined, he testified that he mentions the motor cycle is black in color but during identification of the said exhibit when court was invited to do so, he confirmed motorcycle has no black color, (See page 76 of the proceedings). What is that mean, PW7 lied in his testimony in chief and Exhibit P3 had wrong information because the motorcycle which was Page 10 of 14 inspected by trial court during its admission was not black or had no black color. Can this witness, PW7, has qualities to be called credible? Let us see another piece of testimony. During trial, PW7 testified that 1st appellant hired a motorcycle from PW4 and he became aware of that fact after he (PW7) interrogate and record statement of the 1st appellant. It was prosecution testimony that 1st appellant was arrested on 19/6/2024 and he record his statement, exhibit P2 on the same date from 11:00 am to 13:00 pm as seen at page 51, 54 and 55 of the proceedings. After he finished recording Exhibit P2 is when PW7 started to look for PW4 who was in use of Exhibit P4 (motorcycle) as reflected in page 66 of the proceedings. It is on record that PW4 was arrested at 10:00 am on 19/6/2024. The question is, if PW7 became aware of involvement of the motorcycle which was used by PW4 when he interrogated the 1st appellant, how did he managed to arrest PW4 at 10:00am while by that time 1st appellant was not interrogated and did not reveal whose motorcycle was used. This is the second scenario in which PW7 who is investigator of the crime gave untrue testimony. Can it be said PW7 was credible witness? Page 11 of 14 I am aware that it is the trial court which is in better position to access credibility of a witness. In Ali Abdallah Rajab vs Saada Abdallah Rajab & Others [1994] T.L.R. 132 as quoted in Toyidoto s/o Kosima vs Republic (Criminal Appeal No.525 of 2021) [2023] TZCA 17305 (5 June 2023) it was said: 'Where the decision of a case is wholly based on the credibility of the witnesses then it is the trial court which is in better placed to assess their credibility than an appellate court which merely reads the transcript of the record.' I know this is the first appeal and the principle is that, first appellate court is entitled to re-evaluate the entire evidence adduced at the trial and subject it to critical scrutiny and arrive at its independent decision. See Mwita Cornel Philimon @ Gaucho vs Republic (Criminal Appeal No. 306 of 2020) [2023] TZCA 17822 (10th November, 2023) and The Registered Trustees of Joy in The Harvest vs Hamza K. Sungura, Civil Appeal No. 149 of 2017. My evaluation of the evidence of PW7 led me to the settled principle that witness who tell a lie on a material point should hardly be believed in Page 12 of 14 respect of other points. See Mohamed Said vs The Republic, Criminal Appeal No. 145 of 2017 and Zakaria Jackson Magayo vs The Republic, Criminal Appeal No. 411 of 2018. PW7 is not credible witness and his evidence led to conviction of appellants. He is the one who record Exhibit P2 in which the exhibit shows the 1st appellant confess to commit the offence and mentioned other appellants. Did he (PW7) record what was told by 1st appellant? If he lies on those material things as mentioned and clarified by this court, how can this court believe him in the rest of his testimony. I find no reason to believe the rest of his testimony including exhibit prepared by him. I had time to read Sultan Omary Kipenzi & 6 Others vs Republic, Criminal Appeal No. 154 of 2017 Aidan Mwalulenga vs Republic, Criminal Appeal No. 207 of 2006; Chacha Ng'era vs Republic, Criminal Appeal No. 87 of 2010 Halfan Ismail @ Mtepela vs Republic, Criminal Appeal No. 38 of 2019, Masoud Mgosi vs Republic, Criminal Appeal No. 195 of 2018 and Syridion Michael vs Republic (Criminal Appeal No. 262 of 2022) [2024] TZCA 365. In all those cases there is one common principle which the Court explain that doubts created by prosecution should benefit accused person. From my analysis I find prosecution testimony is Page 13 of 14 tinted by doubts which is already ruled that doubts created by prosecution has to benefit appellants. In the upshot I find the appeal has merit. The conviction of the appellants is hereby quashed and the sentence of 30 years imprisonment and the order for compensation of TZS 1,000,000= is set aside. I order for immediate release of all appellants from prison unless there is lawful reason to retain them. Given under my hand and seal of the court this 25th November, 2024. M. L. KO MBA JUDGE Judgement Delivered today in chamber in the presence of Ms. Joyce Matimbwi and Mr. Zarubaberi Ngowi for respondent and in presence of appellants who appeared in person. W M. L. KOMBA JUDGE 25th November, 2024 Page 14 of 14