Ricardo Severine

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO SUB REGISTRY) AT MOROGORO CRIMINAL APPEAL NO. 28885 OF 2024 (arising from criminal case no.100 OF 2023 AT MOROGORO DISTRICT COURT) RIKADO SEVERINE @ MCHONDDE MOMO 1®^ APPELLANT HOLES CLIFF 2"^° APPELLANT versus; REPUBLIC RESPONDENt Date of Last Order: 14.02.2025 Date of Judgement: 07.03.2025 JUDGEMENT MAGOIGA,J. The appellants, RIKADO SEVERINE @ MCHONDE @ MOMO and HOLES CLIFF (and two others not In this appeal) were jointly charged before Morogoro district (the trial court) for gang robbery contrary to sections 285 (2) and 287C of the Penal Code,[Cap T6 R;E.2021]. It was alleged in the particulars of the charge that on 25^*^ day of June, 2023 at Bigwa area near Magereza-FFU, within Morogoro district in Morogoro region, the appellants and the tyyo others not in this appeal jointly stole a mobile phone made Infix Flot 9 valued at Tshs.350,000/- the property of one Michael Francis and immediately before such stealing assaulted the said Michael Francis in order to obtain the said stolen property. 1 1 The appellants denied the allegations hence, full trial was conducted. The appellants' trial ended up on being convicted and sentenced to serve thirty years imprisonment. The substance of the evidence on which the trial court found sufficient to mount conviction was identification of the appellants by PWl because they were facing each other at the scene of crime, it was at 10:00 am and there was enough light as heavily testified by PWl. Also was the reason that in the course stealing said mobile phone from PWl, the victim sustained injuries, was given PF3, treated and admitted for 2 days and concluded that in the circumstances, there was actual use of violence immediately before or after stealing to the person or property in order to obtain or retain the stolen thing. Further, it was the testimony of PWl that he heard the 2"^ accused person telling the appellant that ''Rikado changamka" and because there is an accused person in this by the name "Rikado" as such coupled with identification parade concluded that prosecution proved their case beyond reasonable doubt, Aggrieved and still fighting for their innocence, the appellant faults the trial court findings armed with 14 grounds of appeal yvhlch can be redugep and summarized into the following language: - V H "■ i . 1. The charge was defective for containing variance between evidence and the number of peopie invoived in the commission of the offence; 2. Evidence ofidentification was too weak; 3. No description ofthe appeiiants before arrest; 4. Identification was fraught with unprocedurai conduct, faiiure to caii peopie who participated to testify and exhibitPEl was fiouted; 5. Adverse inference be drawn to prosecution forfaiiure to caiimateriai witnesses; 6. Reiying on PF3 which was admitted without recaiiing the DR after re-start ofthe fresh triai; , 7. The case started afresh unprocedurai to aiiow prosecutions to fHiin ofgaps and caused miscarriage ofjustice; 8. Wrongiy reiied on evidence ofPW4 and PWIO who unsuccessfuify introduced cautioned statement ofthe first accused person; 9. No evidence for existence ofthe mobiie phone aiiegediy stolen; , 10. The prosecution witnesses were not credible, unreiiabie and contradictory; /v 11. Faiiure to consider defence evidence; 12. The case for prosecution vyas not proved to the required standard in criminal cases. A On the strength of the above grounds of appeal, the appellants prayed that their appeal be allowed and this court be pleased to set them free. When this appeal was called on for hearing, the appellants appeared in person and unrepresented, and the Respondent, Republic was represented by Mr. Josbert Kitale and Daipa Londo, learned State Attorneys. The appellants prayed that the learned State Attprney to start and then they will reply back. Mr. Kitale readily told the court that based ^ '' " . • - - V. on the grounds of appeal, he supports the appeal, and in particular on grounds numbers 2 and 11 of the petition of appeal which were On identification and whether the case was proved beyond reasonable doubt, which according to him, suffices to dispose of this appeal In favour of the appellants. The learned State Attorney arguing ground number 2 on identification told the court that going through the testimony of PWl, no time used to observe his attackers was stated but what was stated-was that, PWl upon being robbed his phone, he tried to protect it but suddenly fallen down from the Bajaj and sustained injuries which necessitated,to be hospitalized for two days. Witfi the Bajaj and rnotor cycle rnoving same direction, PWl did not tell the court that he had no prior notice of his attackers and concentrated for their correct identification. Mr. Kitale ; • ' .. , • ■ ' ' -r ■■ thrv ('x, ha had no ;:.a ■ r^aiao-aor'Th!;, . l aa:/^: i'drd'h-d oof:Odo oooidticdd :d;d •diidd; pointed out that though the incident occurred in day time but time which the victim used to observe and crammed the attackers leave a lot to be desired in this case. Not only -that but also that PWl did not know the appellants before. On the totality of the above reasons, according to the learned State Attorney, identification was not watertight to ground ^ ^' ' conviction and guided by the case of Sprian Mtungilei Vs. Republic, Criminal Appeal No.244 of 2021 CAT at Efukoba and at Tanzlii, ip which it discussed at length the issue of identification and factors to consider and at the end held that critically looking at circumstances at issue will give a correct and not mistake identity. The learned Attorney when grobed by the court if the identification parade was properly done, he was brief and to the point that identification parade was fraught for being done by while the appellant had bandages(POP) which was easy to identiiy him because np other perspn had similar dressing. The appellants had nothing useful to submit other than thanking the learned State Attorney to support their appeal and urged this cpurt, to allow their appeal and set them free. Having heard the submissions by the learned State Attorney supporting the appeal on the second ground of appeal ^and ha^^^ carefully scanned through the trial proceedings, in particular that of PWl I which is at pages 54 to 59, I noted that as correctly submitted by Mr. Kitale, learned State Attorney, no time was used to observe the appellants as stated at page 55 of the typed proceedings, PWl had this to say: "» I saw a motorcycle and in front of us, there was a car which was movingsiowiy.Idid notsuspectanything butafter a whiie,Isaw a person taking my phone andI wasshocked. Itried to protect myphone butIfeit on the tarmac roadfrom the Bajaj and my phone was robbed. I got injuries on my head, thigh andpain on the shoulder. The person who had the motorcycle ran away with their motor cycie after robbing my phone." In my own view and reading the above excerpt, nowhere PWl told the court the time he took to observe the appellants regards being that they were not known to him before. In the farnous and celebrated case on identification of Waziri Amani Vs. Republic [1980] TLR 350 one of the conditions is the time the incidence took place and tjme of observation. This is wanting in this appeal. This brings to one conclusion that the identification of the appellants was not watertight but vyas too general to constitute a correct identificqtion of the appellant?. ^ Moreover, PWl when he described the two appellants had this to say: .6- ^'The people with motorcycle were beside us. Among the three men who robbed me,Ionly recognized two men.I recognized them because before they robbed me, we were facing each other.It wasaround10:00am- One was wearing Yanga T-shirt with yellow and green colour and the other one was wearing a T-shirt with triangle marks. The one who was wearing Yanga T-shirtis white then, taii and his hair were cut. The one who was wearing a T-shirt with triangle (kashata)in colour wasa bitfat, roundface. The one who robbed myphone is the thin one(1^^accusedperson). One was saying "Rikadoo changamka''and the accused was the one who said so. There are more questions than answers. One, the people In the motor cycle were seated, then, how PWl was able to say thi? person is tall while he was seated on the motorcycle. Again, is the Rikadoo rnentioned hqre by one name the same Rikadoo mentioned in the charge sheet: with four names. On the totality of the above reasons, I agree with the learned State Attorney that, indeed, identification was not watertight and this has to be resolved in favour of the appellants. Another ground argued wa? that the case for the prosecution was not proved to the required standard in criminal case i.e beyond reasonable doubt. Mr. Kitale argued that, in this appeal, the direct evidence of PWl was too general for failure to give distinctive particulars of the stolen mobile phone apart frorn stating.that the stolen mobile phone was Infinix Hot 9 without giving better particulars differentiating it from other phones. The learned State Attorney's arguments were cernented by the decision in the case of Ally Said @ Tox Vs. Republic, Criminal Appeai No. 308 of 2018 at Tanzlii in which it was held that the complainant failed to furnish particulars of her mobile phone distinct from any other mobile phones and also failed to produce any receipt creating doubts to prosecution to prove stealing as an essential ingredient in the offence of armed robbe^ and robbeiy,with violence. . 4. ^ Guided by the above decision, the learned Attorney concluded and urged this court to find and hold that, in this appeal no proof of the stealing which is essential ingredient in gang robbery that was facing the appellant. On the totality of the above stance, he urged this court to find that, indeed, the case for prosecution was not proved to the standard required in criminal cases. - I have carefully scanned through the testimony of PWl, indeed as correctiy argued by the learned State Attorney, no description of the mobile phone stolen was ever given. No receipt was tendered and one cannot teli exactiy which phone was stolen. Aii these in their totaiity creates doubts to the prosecution case. Any doubt has to bp resolved in favour of the accused person or appeilants for this matter. Without much ado, I am hereby inclined to find and hoid that the second ground of appeai argued has merits that the prosecution case was not proved to the standard required in criminal case. That said and done, this appeai is hereby ailpwed for being merited. The appeilants are hereby set free and should imrnediately be released from prison unless are held for another lawful cause. 5 red. -1, LU X li l! r- z oro this 7^^ day V- SfH. S. M. MAGdli^A JUDGE 07-03-2025