ANUARY JACOB KIZO JUDGEMENT 0001

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB REGISTRY AT DAR ES SALAAM CRIMINAL APPEAL NO. 16946 OF 2024 (Originating from Criminal Case No. 435 of 2022 in the District Court of Temeke at Temeke) ANUARY JACOB KIZO ............................................................ APPELLANT VERSUS THE REPUBLIC BH•HH•••••H• RESPONDENT JUDGMENT 0461 & 2501 November, 2024 NGUNYALE, J. Tbe appellant ANUARY JACOB KIZO was arrested, tried and convicted for the offence of Armed Robbery Contrary to Section 287A of the Penal Code Cap 16 R.E 2022. Earlier it was alleged in the charge sheet that the appellant was charged that on 4th July, 2022 at Mwembe Mnofu area within Temeke District in Dar es Salaam Region did steal one mobile phone make Sumsung S8 valued at Tshs. 350,000/=, one mobile phone make Nokia valued at Tshs. 50,000/= and cash money Tshs. 600,000/= and one wallet containing various identity cards all total valued at Tshs. M- 1,000,000/= the properties of one Sixto Gickson Mwenda and immediately before and after such stealing he threatened the said Sixto Gickson Mwenda with a machete in order to obtain and retain the same stolen properties. Upon conviction the appellant was found to be a habitual offender, the trial court sentence him as a habitual offender to serve thirty-five years in prison. The verdict imposed aggrieved the appellant, he preferred the present appeal prernised in eight grounds of appeal which will be paraphrased in order to be understood and make sense. He alleged that the trial court erred in law and fact in convicting the appellant based on; one unsatisfactory visual identification evidence of PWI which lacked detailed description of his assailants two, the evidence of PWI who neither proved to have been hit on his eye by tendering PF3 report nor proving ownership of the alleged stolen phones which raises doubt three, failing to draw an inference adverse to the prosecution failure to trace and parade the said motorcyclist so as to testify in court to prove the veracity of PWI four, the evidence of PWI, PW2 and PW3 were contradictory, weak and unreliable to warrant the appellant’s conviction as charged five, exhibit Pl caution statement which was illegally obtained and tendered in court contrary to law and procedure. Other =M grounds are six, evidence originated from poorly investigated and/or prosecuted case because no search was conducted to the appellants premises to trace the alleged offensive weapon nor establish the appellants apprehension in connection with the case at hand seven, the appellants defence was disregarded eight, the sentence was excessive contrary to law and nine, the prosecution side failed to prove its case against the appellant beyond all reasonable doubts as mandatorily required by law. He invited the court to find merit on the appeal and allow it by quashing conviction and set aside sentence. Hearing attracted the form of written submission upon the prayer by the parties and blessed by the court. Per the order of the court dated 26th August 2024, the appellant submission in chief was to be filed on 09th September 2024, the respondents reply to submission of the appellant to be filed on 23'd September 2024 and rejoinder if any to be filed on 30th September 2024. are appellant timely filed his submission but the respondent could not file the same as scheduled instead they sought leave tO file the same OUt of time. On 4th November 2024 the respondents were given leave to file the same within seven days and the respondent was given chance to file his rejoinder if any within 14 days from 12th November 2024. Unfortunately, the respondents could not file their respective submission as ordered by the court. Failure to file submission in law is as good as failure to prosecute one’s case. The court will proceed to answer the appeal based on the submission of the appellants only. In support of the appeal the appellant opted to argue the grounds of appeal generally basing on the 9th ground of appeal that the prosecution failed to prove its case against him beyond all reasonable doubts as mandatorily required by law. The duty of the prosecution to prove the case beyond all reasonable doubt has been stated in a number of cases including the case of Woolmington vs DPP (1935) AC 462 where the court held that: "The prosecution must prove every fact in issue in the case if they are to secure conviction" Similarly, in the case of John Joseph Makune versus Republic (1986) TLR 44 the court stated: - "The cardinal principle in our criminal law is that the burden is on the prosecution to prove its case, no duty is cat on the accused person to prove his innocence." It was the submission of the appellant that the evidence of PWI the victim was insufficient to prove beyond all reasonable doubts because his evidence is at variance with the charge as to what was stolen from him. The particulars of the offence speak louder that the alleged stolen properties were one mobile phone Samsung S8 valued 350,000/= Nokia @ 50,000/= and cash money the properties of Sixto Gibson Mwenda. But PWI testified about IDs as among the stolen properties which were not mentioned in the charge sheet. He insisted that the offence was not proved beyond all reasonable doubt. Tbe evidence of PWI did not prove how he was threatened with the bush knife to prove armed robbery and he did not explain what the cyclist did when he was assaulted by a bush knife. The witness PWI did not give any graphic description of his assailant’s morphological appearance, attire, voice and height for proof of virtual identification by recognition. Tbe trial court ought to draw inference on the failure to parade the cyclist as a witness because it was not stated as to whether he was present when the event occurred or not. TIe witness PW3 who recorded the caution statement is the same person who recorded the statement of PWI thus it was wrong to base conviction on such caution statement. PW3 was also the investigator of this particular case. He prayed the court to expunge the alleged caution statement in the court record for lack of evidential value. To bolster his point, he cited the case of Shani Kapinga versus Republic, Criminal Appeal No. 337 of 2007 (unreported) where the caution statement recorded contrary to q procedures was expunged. The appellant evidence was not properly considered while there was no independent evidence to corroborate the prosecution case. Ure defence evidence was to be given weight because every witness must be given credence. He concluded by inviting the court to find the appeal merited. After I have perused the record of the trial court, the grounds of appeal and the submission of the appellant I have formed an opinion that the appellants’ appeal is basically about evidence. All the grounds of appeal aim to fault the evidence. Basing on my findings through the perusal of the records I am of the firm view that re-evaluation of evidence is the best option for just and fair determination of this case. Re-evaluation of evidence is a proper approach to be taken by the first appellate court in order to end with its own conclusion. The role of re-evaluation by the first appellate court has been a position is numerous cases of this court and the court of appeal. In the case of DPP versus Josephat Joseph Mushi & Another, Criminal Appeal No. 471 of 2019 Court of Appeal of Tanzania at Mbeya the Justices of Appeal before they accepted re- evaluation of evidence in the second appeal they insisted that the first appellate court had mandate to conduct re-evaluation of evidence in order to end with its own conclusion In the pre ent case I proceed to b conduct re-evaluation of evidence. The appellant has opted to answer the appeal generally without considering each of the grounds of appeal. In my side I prefer to answer the grounds of appeal in seriatim in order not to leave any stone unturned. In the present appeal I will also avoid the temptation to follow the way the appellant submitted generally the grounds of appeal, I will confine to answer the appeal in seriatim though other grounds of appeal may be considered jointly. In the first ground of appeal the appellant complains that visual identification evidence of PWI lacked detailed description of his assailants. We issue here is whether the appellant was correctly identified at the scene of crime by PWI who alleged that he identified him. The evidence is clear that the event occurred on 4th July 2022 at 23:00 which is night time. The law about identification at night is settled that for identification to be relied upon by the court all possibilities of mistaken identity must be eliminated otherwise visual identification is among the weakest kind of evidence. That is the position in the case of Waziri Amani vs R [1980] TLR 250. In the present case PWI testified that he identified the appellant when he invaded him and he was able to call him by name. But in his evidence he did not state what kind of light was used to identify the appellant and which criteria assisted his identification. Coming to case law, they have set criteria or guideline to be followed in establishing as to whether the evidence about identification was watertight or not. Since the victim PWI said that he knew the appellant before, the identification in this kind of identification is called identification by recognition. In the case of Jumapili Msyete versus Republic, Criminal Appeal No. 110 of 2014 Court of Appeal of Tanzania seated at Mbeya it was observed : "Thus in recognition cases, the foundational evidence would be how the victim came to know the suspect. Assistive evidence would include, the time of the day the incidence happened, the type and intensity of the light...which enabled the victim to ascertain the identity of the suspect. Corroborative evidence would consist of say, the suspect being found is possession of the victim’s property stolen in the course of theft, or naming the suspect at the earliest..." In a careful screening of the testimony of PWI, in his evidence beside mentioning that the event occurred at 23:00 hours he said nothing about light which assisted him to identify the appellant though he said that the appellant was well known to him around the street. During cross examination is where he said that the street has electric light but he did not describe the intensity. PWI is the only witness who testified about what transpired at the scene of crime on the fateful date. There is no other direct evidence from the scene of crime to state about nature of the light and its intensity because the victim PWI did not state properly about light. His evidence need corroboration. It was observed by the Court of Appeal of Tanzania that in identification, particularly in unfavourable conditions, evidence about the source of light and its intensity is of paramount importance. In the case of Issa S/O Mgara @ Shuka V Republic, Criminal Appeal No. 37 of 2005 (unreported) it was observed that: "We wish to stress that even in recognition cases where such evidence may be more reliable than identification of a stranger, dear 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 who he knows, as the case here, mistakes in recognition of close relatives and friends are often made." In this case it remains my finding that conditions for favourable identification were not established by the prosecution evidence. The first ground of appeal is found to have merit. The second ground of appeal the appellant tends to fault the absence of the PF3 and the 3’d ground is about failure to call the cyclist as a witness. It has been ruled that the appellant was not properly identified at the scene of crime by PWI. The PF3 is a relevant document to prove that the victim was injured at the scene of crime by the appellant. It was an important document to assist in proving the ingredients of armed 9 @@ robbery because one of the important ingredients of armed robbery is use of force in obtaining a stolen property and for retaining the same. In the case of Yosiala Nicolaus Marwa and Others v. Republic, Criminal Appeal No. 193 of 2016 (unreported) the Court of Appeal held that: "...an Important element of the offence of armed robbery is Indeed the use of force against victim for the purposes of stealing or retaining the property after stealing the same." Emphasis added The fact that the victim PWI said that he was injured by the appellant, tendering a PF3 was necessary document to corroborate the complaint that he was injured. Indeed, I find no reason to consume more time with this point because it has been already ruled that the identification of the appellant at the scene was controversial because there was no evidence about light which assisted him to identify the appellant. I therefore avoid to detain long. Ttle evidence of the appellant about the circumstance of the scene of crime needed corroboration unfortunately the cyclist who was at the scene of crime was not called which is the complaint of the appellant in the third ground. The testimony of the cyclist was necessary, the fact that he was not called leaves the court to conclude its findings basing on the testimony of PWI about the circumstance of the scene of crime In the fourth ground of appeal the appellant has complained that the testimony of PWI, PW2 and PW3 was contradictory weak and unreliable. In support of this ground of appeal the appellant said that the testirnony of PWI was to the effect that among the stolen items were the ID cards, but those cards were not mentioned in the charge sheet. PW2 it the person who enabled the arrest of the appellant on 24th July 2022 and PW3 is the person who recorded the caution statement of the appellant. After having screened the testimony of PWI, PW2 an PW3 1 did not note any direct contradiction between the witnesses as alleged by the appellant instead there is discrepancies in that prosecution evidence to the extent that it cannot ground conviction. Tbe argument that the identity cards were not mention in the charge sheet is not true. I have already ruled about the testimony of PWI on the key point of identification that, such evidence is wanting about source of light. The evidence of PWI needed corroboration from other independent piece of evidence. The only evidence which was necessary to corroborate the testimony of PWI was of PW3 who tendered a caution statement exhibit Pl which was retracted and repudiate. The accused in his defence complained that the person who recorded caution statemen was the same person who was investigating the case and he recorded the statement of PWI. Considering the circumstance of this case the testimony of PW3 also needed corroboration. The evidence which also needs corroboration cannot corroborate other evidence. In the case of Tuamoi Vs Uganda (1967) EACA 67 the court insisted about corroboration of the repudiated and retracted confession when the court warns itself on the possible dangers of basing conviction solely on that kind of confession. In this case after taking into account of the doubt in the defence case that the PW3 was also the investigator of the case this confession cannot by itself ground conviction. It is not in dispute that the witness PW3 is the one who also recorded the statement of PWI. From that view, the fourth and fifth grounds of appeal are reduced into nothing. The six and seven grounds of appeal are just a repetition of what has been considered while answering other grounds of appeal, I will not reconsider them. The last ground of appeal the appellant has raised a complaint that the sentence imposed was excessive contrary to law. I will answer his complaint by considering Section 287A of the Penal Code Cap 16 R.E 2022. The provision provides: - '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 ;M the stolen property, commits an offence of armeArobbery and shall, on conviction be liable to imprisonment for a term of not less than thirty years with or without corporal punishment." Ure above provision gives a minimum of 30 years imprisonment but the trial Magistrate imposed thirty-five years on ground that the appellant was a habitual offender. Tbough the punishment is legal per the above provision, but it was not proved that he was a habitual offender. No case against the appellant was cited as an example of previous conviction. Tberefore, 30 years imprisonment was enough for him. In the last ground of appeal he complains that the offence was not proved beyond all reasonable doubt. From what I have endeavoured to discuss, I am also satisfied that the offence was not proved beyond all reasonable doubt the standard required in criminal justice. Appeal allowed, conviction is hereby quashed and sentence set aside, I order immediate release of the appellant Anuary Jacob Kizo unless lawful held with another lawful cause. Order accordingly. Dated at Dar es Salaam this 25th day of November, 2024. D. P. lnyale' JUDGE 13 Judgement delivered this 25th day of November, 2024 in presence of the appellant in person and the respondent represented by Clement Kato learned State Attorney. [g-unyal JUDGE 14