IDDI MSAMI MAGOMA VS REPUBLIC

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA MOSHI SUB REGISTRY AT MOSHI RM CRIMINAL APPEAL NO. 21574 OF 2024 (Originating from Criminal Case No. 6144 of 2024 of the Resident Magistrate’s Court of Moshi at Moshi) IDDI MSAMI MAGOMA…………………………………. APPELLANT VERSUS REPUBLIC ……………………………………………......RESPONDENT JUDGMENT 19/02/2025 & 17/03/2025 SIMFUKWE, J. Before the Resident Magistrate’s Court of Moshi at Moshi (the trial court), the appellant was charged with the offence of Armed robbery contrary to 1 Section 287A and Grievous harm contrary to Section 225, both of the Penal Code [Cap 16 R.E. 2022]. It was alleged that on the 26th day of February 2024, at Bomambuzi area within Moshi district in Kilimanjaro Region, the appellant and two others, did jointly and together, steal cash money TZS 60,000 and one mobile phone, make Infinix, valued at Tshs 250,000, the property of Mustapha Seif Abdallah. It was further alleged that immediately before and after the stealing, they used a bush knife (panga) to obtain and retain the stolen properties. On the second count, it was alleged that on the same date and place the appellant and two others attacked one Mustapha Seif Abdallah by using a bush knife on different parts of his head, and caused him to suffer grievous harm. The appellant and his fellows pleaded not guilty to the charge. The prosecution called a total of eight (8) witnesses and tendered one (1) exhibit in support of its case. On the other hand, the accused persons defended themselves. 2 Briefly, the prosecution's evidence was to the effect that on the material day at around 23:45 hours, PW1, Mustapha Seif Abdallah, whom shall be referred to as the victim, was returning home from his business. When he was approaching his homestead at one alley, he was attacked by three men who were armed with a bush knife. They grabbed his TZS 60,000/ and mobile phone make infinix valued at TZS 250,000/=. The victim was injured oh his head and cheek. The victim raised an alarm which was responded by PW2 and other neighbours. The appellant was said to had been apprehended by the alarm people. Due to such incidence, the victim lost consciousness and found himself at Mawenzi Hospital, where he was admitted for two days. PW3, Nestory Babere Mangyagu, a Clinical Officer at Pasua Health Centre, attended the victim (PW1). He testified that PW1 had a bleeding head wound and bruises on his cheek and was semi-conscious. That, the victim was referred to Mawenzi Hospital due to the severity of his injuries. PW3 confirmed that the injuries were caused by a sharp object and classified them as grievous. 3 PW4, Mwajabu Juma, a longtime resident of Bomambuzi, also heard the victim’s screams and saw three men attacking PW1 from her window. She joined PW2 in chasing the suspects. PW5, Emmanuel Ally Mgonja, the street chairman, was awaked up by an alarm of one person who was complaining that he was dying. Upon reaching at the scene, he found that PW1 had been injured. He ensured that the suspect captured by civilians was not harmed. He then informed the Police Officers who interrogated the appellant. The appellant mentioned his accomplices, leading to the arrest of one Rajabu Said at Bomambuzi. Efforts to apprehend the third suspect, one Michael Massawe, at Pasua Sokoni were unsuccessful that night. PW6, G2655 D/CPL Gikalo, a police officer, when arrived at the scene, he found that the appellant had already been arrested. Also, one Rajabu Said was arrested. They interrogated them, the suspects admitted to had robbed the victim and mentioned Michael Massawe as their accomplice. PW6 and his team attempted to trace Michael in vain. PW7, Mohamed Saban Bige, another neighbour, witnessed the aftermath of the attack and assisted to take PW1 to hospital. PW8, WP 10683 D/SGT 4 Rhoda, the investigator, confirmed that the accused persons were involved in the armed robbery. In their defence, DW1, Rajabu Mohamed Said, denied to had committed the offence, stating that he was asleep at home when a mob accused him of robbery. DW2, Idd Msami, the appellant herein alleged that he was arrested while intoxicated and falsely charged with robbery. DW3, Michael Donart Massawe, claimed that he was arrested in June 2024, months after the alleged incident and wrongly accused due to personal grudges. After consideration of the adduced evidence, the trial magistrate was satisfied that the prosecution had successfully proved the charges against the 1st accused and the 2nd accused (now the appellant) beyond reasonable doubt. Both of them were convicted and sentenced to thirty (30) years' imprisonment on the first count and two (2) years' imprisonment on the second count. The sentences were ordered to run concurrently. However, the 3rd accused was acquitted, as the trial court found him not guilty. 5 Aggrieved with both the conviction and sentences, the appellant filed this appeal on the following grounds: 1. That, the case for the prosecution was not proved beyond reasonable doubt. 2. That the trial resident magistrate erred in law in upholding the appellant conviction on the count of armed robbery despite there being no elements establishing the offence. 3. That the trial resident magistrate erred in law and fact by not establishing the fact that there was no proper identification parade done to PW1 to establish identification of the appellant. 4. That the trial resident magistrate erred in law and fact in basing the appellants conviction on weak, incredible, inconsistent, uncorroborated and unreliable evidence from the prosecution witnesses which lack collaboration (sic). The appellant prayed his appeal to be allowed, the conviction to be quashed, and the sentences to be set aside. At the hearing of the appeal, which proceeded by way of written submissions, the appellant was represented by Ms. Diana Solomon, 6 learned counsel while the Republic was represented by Mr. Henry Kasiano Daudi, learned State Attorney. Supporting the first ground of appeal that the case was not proved beyond reasonable doubt; Ms. Diana argued that it was the prosecution’s duty to prove the case beyond doubt. She referred to the case of Ryoba Mariba @ Mungare v. Republic, Criminal Appeal No. 74 of 2003 to support her contention. She contended that PW8, a police officer with three years of experience, arrested and interrogated the appellant and the victim, contrary to the Police General Orders (PGO). She argued that under the PGO, a police officer is permitted to interrogate only one person to avoid bias. In respect of the evidence of PW6, the appellant’s counsel asserted that PW6 admitted to had conducted both interrogations and confirmed that the appellant committed the offence without tendering the cautioned statement as evidence. On the second ground of appeal, the learned advocate argued that the prosecution failed to establish the essential elements of the offence. She contended that under Section 287A of the Penal Code, for the offence of armed robbery to be proved, the person committing theft must be 7 armed with a dangerous or offensive weapon or instrument. To support her argument, she relied on Yosiala Nicholaus and 2 Others v. Republic, Criminal Appeal No. 193 of 2016, which cited the case of Salum Joseph @ Tito and Two Others v. Republic, Criminal Appeal No. 131 of 2006 (Unreported) in which the Court said that: “It is a rule of law that in a charge of robbery the nature of violence used on the victim/or threat of it must be specifically mentioned therein and eventually specifically proved by the prosecution.” Ms Diana asserted that the prosecution failed to demonstrate the nature of violence allegedly used by the appellant and did not tender any evidence that was used by the appellant during the commission of the offence. She also argued that there was no evidence of money or a mobile phone being stolen which was adduced to substantiate the charge of armed robbery. She referred to the testimony of PW1, who admitted that he did not see any object at the scene. Concerning the third ground of appeal, Ms. Diana contended that no identification parade was conducted to establish identity of the appellant. To support her contention, she cited Francis Majaliwa and Two Others vs Republic, Criminal Appeal No. 139 of 2005 (Unreported). 8 The learned counsel continued to submit that there was a need for a proper identification to be conducted, as PW1’s identification, which was based on morphology, was insufficient. She asserted that, PW1 should have described the accused persons based on the clothing they wore and through identification parade. In addition, the learned advocate relied on the testimony of PW4, who stated that he could not recall what the assailants carried in their hands and was unable to identify any of them, as the incident occurred at night. She elaborated that the same indicated that no witness was able to identify the accused persons, making an identification parade essential. She cemented her argument with the case of Omari Iddi Mbezi and 3 Others vs Republic, Criminal Appeal No. 227 of 2009 (Unreported) which held that: “The witness should describe the culprit or culprits in terms of body build, complexion, size, attire, or any peculiar body feature, to the next person that he comes across and should repeat those description at his first report to the police on the crime, who would in turn testify to that effect to lend credence to such witness’s evidence…..ideally, upon receiving the description of the suspect(s) 9 the police should mount an identification parade to test the witness’s memory, and then at the trial the witness should be led to identify him again.” Furthermore, Ms Diana referred to Section 60(1) of the Criminal Procedure Act, and to PGO 232 which emphasizes the requirement of conducting an identification parade, and compliance to the procedures. Lastly, regarding the argument that the evidence leading to the conviction of the appellant was weak, Ms. Diana reiterated that there was no evidence of the machete allegedly used to commit the offence, nor of the phone or money purportedly stolen from the victim. The learned counsel pointed out inconsistencies in respect of the number of people alleged to have committed the offence, noting that while some witnesses testified that there were three accused persons, PW4 failed to identify them. Regarding the location where the appellant was arrested, the Ms Diana highlighted contradictions between PW5, who stated that the appellant was arrested near a bar while PW1 testified that three men assaulted him at the alley near his home. 10 The appellant’s counsel concluded that the conviction was based on weak, incredible, inconsistent, uncorroborated, and unreliable evidence. The argument was buttressed with the case of Immanuel Adam vs Republic, Criminal Appeal No. 577 of 2019 [2023] TZCA 17679 (29 September 2023). Ms. Diana prayed that the appeal be allowed, the decision of the trial court be quashed, and the sentence be set aside. In his reply submission, the learned State Attorney consolidated the first, second, and fourth grounds of appeal. Prior to addressing the grounds, he reminded the Court of the established principle in criminal cases, of the prosecution's duty to prove the case beyond reasonable doubt. He made reference to Section 3(2)(a) of the Evidence Act. Concerning the offence of armed robbery, the learned State Attorney submitted that in order to prove it, the prosecution must establish three elements, as set out in the case of Shaban Said Ally vs The Republic, Criminal Appeal No. 270 of 2018. First, there must be proof of stealing; second, there must be proof that a dangerous or offensive weapon or robbery instrument was used immediately after the commission of the offence; and third, the dangerous or offensive weapon or robbery 11 instrument must have been directed at the victim. Mr. Henry cited the case of Kashima Mnadi vs The Republic, Criminal Case No. 78 of 2011, in support of the legal principle. Regarding the first element, Mr. Henry noted that, based on the testimony of PW1, he was robbed of Tshs 60,000/= cash and a mobile phone made Infinix) worth TZS 250,000/=. As for the second and third elements, it was pointed out that PW1 testified that while on his way home through an alley (kichochoro), he was blocked by three young men, including the appellant. One of them was armed with a bush knife, which he used to strike PW1 on his head, before ordering him to surrender all his money. PW1 gave them TZS 60,000/=, and the robbers also took his Infinix mobile phone. Mr. Henry referred the typed proceedings of the trial court at page 2. Mr. Henry submitted further that PW1’s testimony was supported by PW2 and PW4 as reflected at pages 8 and 18 of the proceedings respectively. The learned State Attorney argued that during the trial, neither the appellant nor his co-accused cross examined the facts that they had robbed PW1 and injured him or by presenting counter-evidence. He emphasized that failure to cross-examine a witness on a crucial fact is 12 tantamount to admitting that fact. He fortified his argument with the case of Kanaku Kidari vs The Republic, Criminal Appeal No. 326 of 2021, CAT. The learned State Attorney insisted that all elements of armed robbery had been proved beyond reasonable doubt, as the evidence was strong, credible, consistent, and reliable to justify conviction of the appellant. Addressing the appellant’s argument that PW6 and PW8 interrogated more than one person; Mr. Henry was of the view that no law prohibits a police officer from interrogating multiple witnesses. In response to the appellant’s claim that the prosecution failed to tender his cautioned statement, Mr. Henry stated that there is no law requiring the prosecution to present evidence or exhibits that are not useful to its case. He found that the appellant’s counsel had failed to demonstrate how the raised concerns undermined the prosecution’s case. On the third ground of appeal which concerns failure to conduct identification parade, the learned State Attorney rejected this argument, stating that it was baseless, as the appellant was properly identified at the crime scene by PW1 and PW2. He further noted that the appellant was 13 not a stranger to the witnesses. Hence, an identification parade was unnecessary. Mr. Henry acknowledged the legal principle that dock identification without corroborative evidence of identification parade cannot be given credence. However, he distinguished the present case from that principle on the reason that PW1 explained that he was familiar with the appellant and his co-accused. Similarly, PW2 testified that he had known the appellant by face before the incident and was the one who arrested him. Furthermore, the learned State Attorney elaborated that PW1 and PW2 described factors that enabled them to identify the appellant on the fateful night. That, there was light at the scene of crime and the distance between them and the appellant. Thus, the trial court had properly adhered to the conditions set out in the case of Waziri Amani vs The Republic [1980] T.L.R. 280. It was remarked that even if conditions of identification were unfavourable, the evidence of PW2 and PW5 established that the appellant was arrested following a mob chase, which prevented him from distancing himself from the crime scene and the offences. In conclusion, Mr. Henry submitted that the appeal should be dismissed. 14 I have considered the grounds of appeal, evidence in the trial court’s record and the submissions for and against the appeal. The issue for consideration is whether the advanced grounds of appeal have merit. On the first ground of appeal, the appellant’s counsel argued that the prosecution failed to prove its case beyond reasonable doubt. She stated that PW8 and PW6 were both involved in the investigation and arrest of the appellant. That, PW8 interrogated the victim and the appellant contrary to the Police General Orders. Moreover, the learned counsel contended that the prosecution’s failure to tender a cautioned statement weakened its case. In response, Mr. Henry submitted that there is no legal provision prohibiting a Police Officer from interrogating more than one witness. Regarding failure to tender a cautioned statement, it was replied that there is no law which compels the prosecution to do so. With due respect to Ms. Diana, her assertions are misconceived. The evidence on record clearly establishes that PW6 merely arrested the appellant, whereas PW8 was responsible for the investigation and interrogation of the appellant. 15 Even if it is assumed, for the sake of argument, that such contentions existed, as rightly stated by the learned State Attorney, there is no legal provision prohibiting a Police Officer who interrogated the accused from interrogating the victim. Similarly, no law prevents the same officer who arrested an accused person from subsequently interrogating him. Ms. Diana failed to cite any legal authority to support her claim. Furthermore, the learned counsel did not explain how the said actions prejudiced rights of the appellant or affected the fairness of the trial. On the allegation of failure to tender a cautioned statement, I concur with Mr. Henry that there is no law requiring the prosecution to tender documentary evidence or exhibits if oral evidence is sufficient to prove the offence charged. The circumstances of this case did not necessitate the tendering of a cautioned statement to establish that the offence was committed. Having considered the above, it follows that the first ground of appeal is without merit. Next for consideration is the second ground of appeal. Under this ground, the learned counsel for the appellant argued that elements of the offence of armed robbery were not proved. That, the prosecution failed to 16 establish the nature of the violence allegedly used by the appellant and to tender the weapon used during the commission of the offence. Mr. Henry, in his reply, argued to the contrary, stating that all the elements of armed robbery were duly proved through the evidence of PW1, the victim, which was further corroborated by the testimonies of PW2 and PW4. He also contended that the appellant and his fellows failed to cross-examine the prosecution witnesses on the fact that they robbed and injured the victim, which weakened their defence. Before determining whether the elements of armed robbery were proved, it is prudent to outline the essential elements of armed robbery. The elements of armed robbery are provided under section 287A of the Penal Code. Also, in the case of Mshewa Daudi vs Republic (Criminal Appeal No. 50 of 2018) [2020] TZCA 368 (30 July 2020), Tanzlii at page 13, the Court of Appeal stated that: "…armed robbery is committed when the accused who, at or immediately after the time of stealing, is armed with dangerous or offensive weapon or instrument and uses the same to threaten violence on the person of the complainant or is in company of one or more persons. On that account, 17 where stealing/theft is not proved, like in the present case, the offence of armed robbery cannot stand." On the strength of the above authority, in the case at hand, I am of the opinion that the offence of robbery was committed by the appellant. The element of stealing was duly established by PW1, the victim, who testified that the appellant, along with another accused persons, threatened him with a panga and stole his money amounting to TZS. 60,000 and mobile phone make Infinix. According to PW1, immediately before the theft, the assailants did cut him on the head with the sword, causing grievous harm to the victim. That fact was corroborated with the evidence of PW3, the Clinical Officer who treated the victim and tendered a PF3. Furthermore, the testimonies of PW2 and PW4, who responded to PW1’s alarm, provided additional support on the prosecution's case. PW2 specifically stated that they pursued the robbers and successfully apprehended the appellant. With due respect to Ms. Diana, the prosecution’s failure to tender the stolen property, whether money or the phone, does not weaken the prosecution case, as the essential elements of armed robbery were duly established. The law does not prescribe production of the stolen property 18 as a prerequisite for proving the offence of armed robbery. What is essential is proof of stealing, among other elements, which was clearly established through the testimony of PW1. I do not see any justifiable reason to discredit the victim’s testimony regarding the act of stealing. On the allegation of failure to conduct an identification parade, the learned counsel expressed her dissatisfaction with the manner in which the appellant was identified. She argued that, conducting an identification parade was necessary in the circumstances. In his reply, the learned State Attorney strongly disputed the argument, although he acknowledged the general legal requirement for conducting an identification parade. I am mindful of the legal significance of conducting an identification parade. The primary purpose of identification parade is to enable witnesses to identify an accused person whom they had not seen or known prior to the incident. This principle was also discussed in the case of Joel Watson @ RAS v. Republic, Criminal Appeal No. 143 of 2010 (unreported) in which it was stated that: 19 “The purpose of an identification parade is inter alia, to enable a witness identify his/her assailant whom he/she has not seen or known before the incident.” Guided with the cited authority, this Court observes that the circumstances of this case did not warrant the conduct of an identification parade. This is because the victim testified that he knew the appellant prior to the incident, having seen him in the streets before. Moreover, the appellant was pursued by a mob, including PW2 and PW4, who successfully apprehended him. Given that the appellant was arrested immediately after the commission of the offence, there was no need for an identification parade. The fact that PW4 did not initially identify the appellant when responding to the victim’s alarm does not negate the identification of the appellant, as he was pursued, apprehended, and his arrest facilitated the apprehension of his co-accused persons. On the last ground of appeal, Ms. Diana argued that the prosecution’s case was weak because the prosecution failed to tender the alleged machete or any stolen money or phone. Without delving further into this issue, it has already been discussed under the second ground of appeal. The failure 20 to tender the stolen properties or the weapon used to threaten the victim does not negate the fact that the offence was committed. Regarding the claim that there was inconsistency in the number of accused persons, as some witnesses stated that there were three accused persons while PW4 allegedly failed to prove the exact number of the accused persons. I find the argument devoid of merit. The witnesses consistently testified that the accused persons were three. Particularly, PW4, during his testimony, stated: “I looked outside to see what is happening. I saw one young man (sic) downward, two among them bowed to him while searching him and one of them stood...” The above testimony corroborates the account of testimonies of other prosecution witnesses regarding the number of accused persons. On the allegation that there was an inconsistency regarding the location of the incident, with due respect to the learned counsel for the appellant, no such discrepancy exists. According to the evidence of PW1, the incident occurred near the alley/uchochoro of his home. Thereafter, people, including PW2, pursued the appellant and apprehended him. PW5 testified 21 that the appellant was arrested near a bar. The fact that the appellant was arrested near the bar does not contradict the fact that the robbery occurred at the alley. The two locations refer to different aspects of the incident: one being the place where the crime was committed and the other being the place where the appellant was ultimately apprehended. In the upshot, I find all the grounds of appeal devoid of merit to disturb the findings of the trial court. Thus, the appeal is hereby dismissed in its entirety. Dated and delivered at Moshi this 17th day of March 2025. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 17/03/2025 22