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THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA CRIMINAL APPEAL NO. 17075 OF 2024 (Originating from the District Court of Mbozi at Vwawa in Criminal Case No. 11 of 2023) EMMANUEL CHARLES KIAKA…………………………….…APPELLANT VERSUS THE REPUBLIC……………………….….…………………RESPONDENT JUDGMENT Date: 30 December 2024 & 31 December 2024 SINDA, J.: The appellant was charged with and convicted of the offence of armed robbery contrary to section 287A of the Penal Code, Cap 16, R.E 2022 (the Penal Code). The District Court of Mbozi at Vwawa (the Trial Court) sentenced him to serve thirty (30) years in jail. 1 The particulars of the offence are that on 30 January 2023 at Migombani Ilolo area within Mbozi District in Songwe Region, the appellant stole one mobile phone make ITEL valued at TZS 25,000/= and TZS 6500/= making a total value of TZS 31,500/= all being the properties of one TEOFRIDA NTUNJE MGALAH, and immediately before and after stealing he used a spear to threaten TEOFRIDA NTUNJE MGALAH in order to obtain and retain the said properties. The appellant challenges his conviction and the corresponding sentence on the following grounds: 1. That, the learned magistrate erred in law to convict the appellant basing on doubtful evidence of Pw1. That, the arrow injured Pw1 stomach while Pw7 nor PF3 of Pw3 didn’t support this piece of evidence. 2. That, Pw3’s visual identification these assertions are lies because she didn’t tell even Pw1 about her visual identification of the said culprit only she first spoken these in the trial court. 3. That, the learned trial magistrate erred in law and in fact basing the appellant’s conviction insufficient evidence of identification as follows:- (i) Pw3 didn’t tell the trial court the time observed the accused and:- 2 (ii) The distance at which she observed the culprit. (iii) Only she stated it was electric bulb which is big but didn’t explain its intensity of the light. See in the case of:- MASOLWA S/O SAMWEL VS.R CRIMINAL APPEAL NO.348 OF 2016 (CAT) and WAZIRI AMAN VS.R (1980) TLR 250 (iv) PW3’s identification was dock identification. 4. That, no police officer who arrest the appellant came before the trial court or the said citizens to certify the date of arresting the appellant. 5. That, Pw4 stated he signed in the from (seizure note) and the accused and Pw6 while Pw6 himself at his evidence didn’t support this piece of evidence. 6. That, Pw6 stated he signed in the form but didn’t identify the said form before the trial court. 7. That, the trial court erred in law because Pw3 at her evidence no where she stated her phone was black in color but the court assisted her (see in the proceedings page no.9). 8. That, the learned magistrate erred in law to convict and sentence the appellant basing on inadmissible evidence of Pw3 when she was tendered the exhibit P2. instead of exhibit keeper and where she kept it. 9. That, the charge sheet shows the value of the said phone is (Tsh.25,000) twenty five thousands while Pw3 stated the value of the said phone is (Tsh.35,000) thirty five thousands. 10. That, Pw4 stated Pw3 identified her phone at police station but Pw3 at her evidence didn’t support this piece of evidence. 3 11. That, Pw4 stated told by Pw1 and Pw3 they were invaded by two person but Pw1 and Pw3 they didn’t support this piece of evidence at their testimony before the trial court. 12. That, the lower court erred in law to convict the appellant relying heavily on uncorroborated evidence of Pw6, Pw1 and Pw3 about which date exactly the said incident happened. 13. That, Pw3 didn’t bring the sales slip before the trial court in order to certify that the alleged phone is belong to her. 14. That, Pw1 stated the alleged incidence occurred on 30/01/2023 at around 2:00 night while Pw4 stated Pw1 and Pw3 came at police on 30/01/2023 4:00 morning to report the incident and Pw7 stated Pw1 and Pw3 came on 30/01/2023 9:00 morning, hence this is contradictory evidence. 15. That, Pw3 stated that Pw1 fought with the said culprit but Pw1 himself didn’t support this piece of evidence. 16. That, Pw4 stated he inspected the appellant and he found him with the said phone but without to explain which kind of Itel phone, because now a days each body can own phone and phone is an common items. 17. That, the learned trial magistrate erred in law by basing the appellants conviction on the cautioned statement which was recorded in contravention of the law as explained bellows:- (a) Pw5 didn’t tell the court he prepared what and for recording the alleged caution statement. 4 (b) no any witness told the trial count which date the appellant was arrested in order to court the four hours per law from time of arrest until the time Pw5 started to record the alleged caution statement. (c) That, Hon trial magistrate erred when he convicted me without considering my defence. At the hearing of the appeal, the appellant was unrepresented. The respondent was represented by Ms. Rosemary Mgeni, learned State Attorney. The appellant requested the Court to consider his grounds in the petition of appeal as presented in the Court. He opted for Ms. Mgeni to reply to them first so he could rejoin in case such need arose. In her submission, Ms. Mgeni supported the appeal and agreed with the second, third and fourth grounds of appeal in the petition of appeal. Ms. Mgeni submitted grounds number two and three together in relation to visual identification. She argued that, she reviewed the testimony of PW3 from page 8 to 9 of the proceedings of the District Court of Mbozi at Vwawa (the Proceedings) and PW3 stated that when she woke up, she saw the legs of someone standing holding an arrow. She submitted that, 5 this means PW3 didn't see the face of the person who attacked her. She added that, when the appellant turned to take the arrow, PW3 recognized him as Emmanuel as there was sufficient light. Ms. Mgeni was of the opinion that PW3 didn't state the amount of light which was there to enable her to identify the appellant. She added that PW3 also didn't state how long the incident took place. This could have helped the court on identification of the appellant. Ms. Mgeni referred to the case of Benard Thobias Joseph & another vs. R, Criminal Appeal No. 414 of 2018, CAT at Dar es Saalam, at page 14 where it was stated that "the witness must make full disclosure of source of light and its intensity, explanation of the proximity to the culprit and the witness and the time he spent on the encounter, description of the culprits in terms of body build, complexion, size and attire.” Ms. Mgeni contended that PW3 evidence didn't meet the conditions as stated in the Benard Thobias Joseph & another vs. R, and that of Waziri Amani vs. Republic [1980] T.R.L 250 among others. She added that PW1, stated that he didn't recognize the person who committed the crime on that date. She submitted that the evidence of identification did 6 not prove beyond reasonable doubt that the appellant was properly identified. Submitting on the fourth ground, Ms. Mgeni argued that the appellant stated that no police officer or citizens who arrested the appellant were brought to court. She added that this was one of the main witness so as to inform the court on the involvement of the appellant in committing the offence. Ms. Mgeni stated that the evidence of PW4, at page 11 of the Proceedings stated that someone came with someone who stated that they arrested the appellant. The names of the persons who arrested the appellant were not stated. PW4 further stated that the appellant was inspected and found with a phone which belonged to the victim and the victim said it belonged to her. Ms. Mgeni contended that the testimony of PW3 does not state that the appellant was inspected and found with her phone which she identified. Ms. Mgeni refered to the case of Ahmad Salum Hassan @ Chinga vs. R, Criminal Appeal No. 386, 2021 CAT at DSM at page 12 which stated that “it is thus now settled that where a witness who is in a better position to explain some missing links i n the parties case is not called without 7 sufficient reasons being shown by the party an adverse inference maybe drawn against that party even if such inference is only permissible”. Ms. Mgeni argued that the arresting officer could explain on the arresting part and the phone. She further stated that in the cautioned statement of the appellant which was admitted in court the appellant admitted to committing the crime to Mzee Lewini. The charge sheet and the witnesses brought to court did not state the name of Mzee Lewini. Therefore, the cautioned statement was against the evidence given in court. Ms. Mgeni argued for the appeal to be allowed and set aside the sentence and the conviction. In rejoinder, the appellant prayed the court to allow his appeal. I have considered the Trial Court’s record and the parties' arguments. I have scrutinized whether the case against the appellant was proved beyond reasonable doubt. I have analyzed the evidence of the prosecution’s witnesses, I do agree with Ms. Mgeni that the visual identification evidence from PW3 was not watertight. 8 In line with the case of Waziri Amani vs. Republic (supra), it is a settled law on visual identification evidence that such evidence is of the weakest kind which in order to found conviction must be absolutely watertight. Factors that should be considered in determining whether visual identification evidence is water tight or not include; the time the witness had the accused under observation, the distance at which he observed the accused, the conditions on which such observation occurred, if it was day or night time, whether there was good or poor lighting at the scene, whether the witness knew or had seen the accused before. It is also settled that although relevant and admissible, the eyewitness visual identification evidence is still of the weakest kind and most unreliable which should be acted upon with great caution. Before the court can act on such evidence, it must satisfy itself that the conditions were favourable for a proper identification. The evidence must be watertight and all possibilities of mistaken identity must be eliminated. It has to be insisted that the principle applies even in cases of visual identification by recognition as it is in the instant case - see Issa s/ Ngara @ Shuka v. Republic, Criminal Appeal No. 37 of 2005, Magwisha Mzee Shija Paulo vs. Republic, 9 Criminal Appeal No. 467 of 2007 and Shamir s/o John v Republic, Criminal Appeal No. 166 of 2004 (all unreported). In Shamir s/o John (supra) the Court cited the case of Philimon Jumanne Agala @ J4 vs. Republic, Criminal Appeal No. 187 of 2015 (also unreported) in which it was observed, among other things, that "Finally, recognition may be more reliable than identification of a stranger, but even when the witness is purporting to recognise someone whom he knows, the court should always be aware that mistakes in recognition of dose relatives and friends are sometimes made." (Emphasis added) Guided by the above legal principles and pronouncements, I now turn to the evidence given by PW3 relevant to the question of identification. My task is to objectively evaluate and scrutinize the evidence and satisfy ourselves if the said evidence is watertight to justify the Trial Court finding that it was the appellant who attacked and robbed PW3 or not. At page 9 of the Proceedings, PW3 stated that when she woke up, she saw the legs of someone standing holding an arrow. This means that PW3 10 didn't see the face of the person who attacked her. PW3 added that when the appellant turned to take the arrow, she recognized him as Emmanuel because there was sufficient light. Amongst others, PW3 evidence did not a make full disclosure of source of light and its intensity, explanation of the proximity to the culprit and the witness and the time she spent on the encounter, description of the culprits in terms of body build, complexion, size and attire. Looking at PW3 evidence, it is clear that the guidelines on visual identification evidence as set in Waziri Amani (supra) are not met in instant case. The evidence given by PW3 that it was the appellant who attacked and robbed her is not watertight to the required standard. From the evidence given by PW3 the possibilities of mistaken identity or of someone impersonating the appellant cannot be ruled out altogether. Further, I also agree with Ms. Mgeni that the prosecution failed to call a material witness who arrested the appellant and failure to call a material witness leads the court to draw inference adverse to the prosecution. See the case of Masanja Lupilya vs. Republic, Criminal Appeal No. 444 of 11 2017, that cited the case of Aziz Abdallah vs. Republic [1991] TLR 71, the Court of Appeal stated that: “…In the absence of any evidence that the witnesses were not reachable or could not be found, the prosecution was duty bound to call them. Failure to call such material witnesses entitles the Court to draw inference adverse to the prosecution.” In the matter at hand, the arresting officer was very important witness to strengthen the prosecution’s case. This witness could explain and prove on whether he arrested the appellant and found him with the victim phone. As a result, the failure of calling such potential witnesses without sufficient reasons, it becomes rather hard to prove the appellant was arrested with the victim’s phone. See: Masanja Lupilya vs. Republic (supra). As such, I find that the prosecution evidence was not water tight to secure conviction against the appellant and was definitely full of doubts. Therefore, the prosecution has failed to prove its case beyond a reasonable doubt. Sections 110(1) and (2) and 112 of Evidence Act Cap. 6 R.E 2022 (the TEA) states that, he who alleges must prove and the burden of so proving lies 12 on him. See also the cases of Abdul Karim Haji vs. Raymond Nchimbi Alois and Another, Civil Appeal No. 99 of 2004, Nathaniel Alphonce Mapunda and Benjamin Mapunda vs. Republic [2006] TLR 395 and Zombo Rashid vs. Republic, Criminal Appeal No. 7 of 2012 (CAT- unreported). Evidence must therefore be led by the prosecution in proving that, the offence was actually committed and so committed by the accused person. It is also trite law that, in all criminal matters the standard of proof is that of beyond reasonable doubt as provided under section 3(2)(a) of the TEA, as conviction cannot be grounded on mere suspicion. The standard was considered in the case of Nathaniel Alphonce Mapunda and Another (supra), when the Court observed thus: i) “As is well known, in a criminal trial the burden of proof always lies on the prosecution. Indeed, in the case of Mohamed Said vs. Republic this court reiterated the principle by stating that in a murder charge the burden of proof is always on the prosecution, and the proof has to be beyond reasonable doubt. 13 ii) Where circumstantial evidence is relied on, the principle has always been that facts which an inference of guilt is drawn must be proved beyond reasonable doubt. iii) In criminal charge, suspicion alone, however grave it maybe it is not enough to sustain a conviction, all the more so, in a serious charge of murder.” Consequently, I allow the appeal, quash and set aside the conviction and sentence and order the immediate release of the appellant from prison unless held for another lawful cause. The right of appeal was explained. DATED at MBEYA on this 31 day of December 2024. A. A. SINDA JUDGE 14