SHIKINGWA JUDGMENT

IN THE HIGH COURT OF TANZANIA (MWANZA SUB-REGISTRY) AT MWANZA CRIMINAL APPEAL NO. 5196 OF 2024 (Arising from Criminal Case No. 55 of 2023 in the District Court of Ilemela at Ilemela) LUCAS S/O MUSSA SHIKINGWA……………………………………….APPELLANT VERSUS THE REPUBLIC……………………………………………………………RESPONDENT JUDGMENT 30th September & 21st October, 2024 KAMANA, J. Before the District Court of Ilemela, Mr. Lucas Mussa Shikingwa, the appellant, was charged with armed robbery contrary to section 287A of the Penal Code, Cap. 16 [RE.2022]. He was also charged with rape contrary to section 130(1) and (2) of the Code. Concerning armed robbery, the facts were that on 21st February, 2023 at Kahama, Ilemela in Mwanza, the appellant stole Tshs.20,000/-; a TV set make Admiral valued at Tshs.250,000/-; a subwoofer make Rising valued at Tshs.150,000/-; and a mobile phone make Tecno Spark 5 valued at Tshs.270,000/-, the property of Ms. Josephina Leonard. According to the particulars of the offence, immediately before the stealing, the appellant threatened to stab Ms. Leonard with a knife to obtain and retain the stolen property. 1 As regards rape, facts had it that on 21st February, 2023 at Kahama, Ilemela in Mwanza, the appellant had unlawful sexual intercourse with Ms. Leonard without her consent. Ms. Leonard (PW3), who was robbed of the property and raped, testified that the incident took place at 0030 Hrs. She gave evidence that while slumbering, she was awakened by a man whom she identified as Lucas (the appellant). She evidenced that she easily identified the appellant as the electric light was on. Further, she stated that the appellant stood close to her bed and was familiar with him as she used to see him at Kahama Stand when she heard people calling him Lucas. When she was awakened, she wanted to scream but the appellant told him to remain still. He threatened to kill him with a knife he had. The witness evidenced that the appellant ordered her to surrender to him her phone which was Tecno Spark valued at Tshs.270,000/-. Having taken a mobile phone, the appellant asked her for amorous congress. She refused on the grounds of her being gravid. That did not dilute the appellant’s lecherousness. The appellant took PW3 to the other room where she raped her. After quenching his lust, the appellant asked her for money. When he was told by PW3 that she had no money, the appellant threatened to employ his knife on her. The threat worked as PW3 gave her 2 Tshs.20,000/-. Thereafter, the appellant took the TV Set and the subwoofer which he kept in his two plastic bags. Then, he vanished in thin air. Left alone, PW2 raised an alarm. Mr. Michael Nghoya (PW1) was amongst the first persons to respond to the raised alarm. He recounted that after arriving at PW3’s house, she narrated to him what happened to her including how she was awakened by a man, robbed of her property and raped. She mentioned to him that the man who did the evil was Lucas. The witness evidenced that he did not know a person who was mentioned by PW3. Being a ten-cell leader and neighbour, PW1 took PW3 to the police station and later to Buzuruga Health Centre. Assistant Inspector Edward (PW2) evidenced that on 27th February, 2023 while walking the beat at Mkolani, he was tipped off by an informer that a person who was accused of committing various crimes at Buswelu known as Lucas had rented Mama Martha’s house. Having received the hush-hush information, PW2 and his squad rushed to Mama Martha’s house. Thereat, they entered the appellant’s room and found him. Amongst the things they found in the appellant’s room were the TV Set make Admiral and the subwoofer make Rising. The things were marked “M”. They seized them in connection with the crime committed at Kahama, Ilemela in Mwanza. The certificate of seizure was admitted as 3 Exh.P0-1 and the TV Set and subwoofer were collectively admitted as Exh.P-02. In his defence, the appellant ardently denied having a hand in the alleged crime. He maintained that the seized property was his. The trial court weighed the evidence and concluded that the prosecution managed to prove the offence of armed robbery. Concerning rape, the trial court held the view that the said offence was not proved to the required standard. In convicting the appellant, the trial court was satisfied that PW3 identified the armed robber as there was an electric light. Further, it was satisfied that PW3 knew the appellant before the incident as she used to see him around Kahama Stand. Likewise, the trial court was satisfied that the seized property was of Ms. Leonard as she identified them through the mark “M” which was put on the property. Its stance was further solidified by the fact that PW3 tendered a receipt (Exh. P-03) that reflected the items that were stolen. The appellant now appeals before this Court against conviction and sentence armed with the following grounds of appeal: 1. The trial court erred in convicting him based on the receipt (Exh.P- 03) bearing the name of the PW’s husband who was not called to testify and that PW3 did not testify to have the husband. 4 2. The trial court erred in convicting him based on the identification evidence while PW3 did not state the intensity of light and its colour. 3. The trial court erred in convicting him based on Exh. P-04 which was admitted contrary to section 28 of the Tanzania Evidence Act, Cap. 6 [RE.2022]. 4. The trial court erred in convicting him based on the items seized from his house while PW3 failed to identify them and further she did not bring any other item marked “M” from her possession to corroborate the evidence. 5. The trial court erred in convicting him without allowing him to see the PF3. 6. The trial court erred in convicting him as all possibilities of mistaken identity were not eliminated. When the matter was set for a hearing, the appellant added the following grounds of appeal: 1. The trial court erred in convicting him based on Exh.P-01 (Certificate of Seizure) which was procured without issuing a search warrant and receipt. 2. The trial court erred in convicting him based on Exh.P-02 which was not positively identified by unique mark. 5 3. The trial court erred in convicting him based on the cautioned statement (Exh.P-04) which was wrongly admitted as the appellant was not allowed to peruse it which made him not to object. Further, the cautioned statement was involuntarily made. 4. The trial court erred in convicting him based on the identification evidence, as PW3 did not state the intensity of light or his features. The appellant had no representation at the hearing. He adopted his grounds of appeal. Mr. Benedicto Ruguge, learned State Attorney, appeared for the respondent. On the first ground in which the appellant complained about the admission of the receipt (Exh.P-03), Mr. Ruguge briefly contended that when PW3 tendered the receipt, the appellant did not object to its admissibility. He further argued that the appellant did not cross-examine any fact relating to the receipt which entails that he had no qualms with such a receipt. In such circumstances, the learned State Attorney held the view that admission of the receipt was correctly made by the trial court. Mr. Ruguge cited the case Damian Mhele v. Republic, Criminal Appeal No. 501 of 2007 to buttress his views that a failure to cross-examine on the important matter amounts to admission of the alleged fact. 6 Concerning the argument that the appellant’s husband was necessary to testify on the receipt, Mr. Ruguge contended that section 143 of the Evidence Act stipulates that there is no number of witnesses that are required to testify on a certain fact. Given that, he held the view that PW3’s evidence in respect of the receipt was sufficient enough. Coming to the second and sixth grounds of appeal which were argued together with the fourth additional ground, Mr. Ruguge contended that the appellant was properly identified by PW3. Amplifying, he submitted that in her evidence, PW3 stated that she identified the appellant as an electric light was on and the appellant did not cover his face. The learned State Attorney argued that PW3 testified that the appellant was close to her and he was familiar to him as she used to see him at Kahama Stand. The learned State Attorney argued further that the conditions of identification evidence as stated in the case of Waziri Amanai v. Republic [1980] TLR 250 were met. On the third ground which faulted the admissibility of the cautioned statement, Mr. Ruguge’s contention was that section 28 of the Evidence Act does not apply to confessions made to the police officer. He amplified that section 28 applies to confessions made to the magistrate. Further, the learned State Attorney added that the said cautioned statement was recorded within the time as evidenced by PW2. 7 On the fourth ground and the second additional ground in which the appellant questioned the identification of the stolen property, Mr. Ruguge briefly contended that PW3 identified the TV set and the subwoofer which were marked “M”. On the fifth ground in which the appellant faulted a trial court for not showing him the PF3, Mr. Ruguge contended that in convicting the appellant for armed robbery, the PF3 was not necessary. He argued that the PF3 could be of use so far as rape was concerned. On the first additional ground in which the appellant faulted the admissibility of the certificate of seizure, Mr. Ruguge contended that the search that led to the seizure of a TV set and subwoofer was conducted in an emergency. He amplified that the said search was conducted after the police officers were tipped off about the appellant’s involvement in criminal activities when they were at Mkolani. On the third additional ground which also challenged the admissibility of the cautioned statement, Mr. Ruguge contended that the cautioned statement was admitted as per the requirements of the law. He argued further that the appellant did not object to the admissibility of the cautioned statement which was read to him after admission. Fortified by the said reasons, Mr. Ruguge beseeched this Court to dismiss the appeal in its entirety. 8 Having gone through the grounds of appeal and Mr. Ruguge’s submission, the issue for my determination is whether the prosecution proved its case beyond a reasonable doubt. In so doing, I am mindful that this is the first appellate court that is necessitated to reevaluate the evidence adduced during the trial and come to its conclusion. See: R.D. Pandya v. Republic [1957] EA 336. In determining the appeal, I start with the propriety or otherwise of the search and seizure. According to section 42(1)(b) of the Criminal Procedure Act, Cap. 20 [RE.2022] (CPA), a police officer may enter into any premise to conduct an emergency search if the search meets two conditions. One, if the search is inevitable to prevent the loss or destruction of anything connected with an offence. Two, if the search is precipitated by the seriousness and urgency that justifies non-observance of the requirements of the law as to the order of the court or search warrant. The two conditions must be met cumulatively. The section reads: ’42.- (1) A police officer may— (a) search a person suspected by him to be carrying anything concerned with an offence; or (b) enter upon any land, or into any premises, vessel or vehicle, on or in which he believes on reasonable grounds that anything connected with an offence is 9 situated, and may seize any such thing that he finds in the course of that search, or upon the land or in the premises, vessel or vehicle as the case may be— (i) if the police officer believes on reasonable grounds that it is necessary to do so in order to prevent the loss or destruction of anything connected with an offence; and (ii) the search or entry is made under circumstances of such seriousness and urgency as to require and justify immediate search or entry.’ From the records, PW2 testified that while in patrol at Mkolani he was tipped off by his informer that a person by the name of Lucas who engaged himself in criminal activities at Buswelu had rented a room at Mama Martha’s house located at Mkolani. Having received the information, he and his colleagues went to the appellant and found him with the TV set and subwoofer alleged to have been stolen from PW3. The stolen property was seized under a certificate of seizure issued under section 42. I understand that section 42 of the CPA dispenses with the requirements of a search warrant or search order in the circumstances I have alluded to. However, I am of the considered view that the 10 circumstances that led to the seizure of the alleged stolen property do not fall within the ambits of section 42. I take that position for a reason that PW2 did not testify that his informer told him that there were stolen properties in the appellant’s room that were about to be lost or destroyed or disposed of in any way. This means that PW2 had no information that made him reasonably believe that in the appellant’s room, there were things that were connected with an offence that were about to be disposed of. In such circumstances, there was no urgency that warranted the search made by PW2 and his colleagues. Further, in my view, to have information that a person suspected of involving himself in criminal activities lives in a certain house is not a sufficient reason to warrant an emergency search in the person’s house. To condone that amounts to permitting intrusion into people’s right to privacy for flimsy reasons. See: Samweli Kibundali Mgaya v. Republic, Criminal Appeal No. 180 of 2020-CAT (Unreported). The certificate of seizure (Exh.P-01) is expunged from the records as the search was illegal. Having concluded that the search was illegal, it follows that exhibits P-02 (stolen items) were illegally seized warranting this Court to expunge them from the records, as I hereby do. 11 I now proceed to determine whether or not the identification evidence eliminated all possibilities of mistaken identity. It is an established principle that the evidence of identification is a fragile one especially when the alleged identification is done at night hours. Given the fragility, courts have developed factors to consider before convicting an accused based on identification evidence. The factors were well restated by the Court of Appeal in the case of Daudi Loti Mollel @Masai v. Republic, Criminal Appeal No. 306 of 2021-CAT (Unreported) as follows: ‘Thus, in cases entirely depending on identification, the Court has enunciated some factors, among others, to be considered by the trial court before concluding that the victim properly identified the assailant at the scene of crime. These are: One, the time the witness had the accused under observation; two, the distance at which he observed him; three, the conditions in which such observation occurred, for instance whether it was day time or night time, whether there was good or poor lighting at the scene; four, whether the witness knew or had seen the accused before or not; and five, all factors of identification considered, it should also be plain whether there were any material 12 impediment or discrepancies affecting the correct identification of the accused person by the witness.’ In her evidence, PW3 testified that the appellant awakened her around 0030 Hrs. She testified that since the electric light was on, she identified the appellant who was also familiar to her. According to PW3, the appellant stood close to her bed and asked for a mobile phone. When she handed over her mobile phone to him, the appellant asked for a lay. Despite her refusal, the appellant took her to another room where he raped her. Thereafter, he ordered her to give him money. When he received the money, he took the TV set and subwoofer and disappeared. I have considered the evidence of PW3 and found it wanting for the following reasons. One, PW3 by insinuating that she was raped by the appellant suggests that she spent some time with the appellant hence she identified him. However, it does not occur to my mind that the armed robber could have time to the extent of taking PW3 from her bedroom to another room within the house to rape her. I wonder what precluded him from raping PW3 in her bedroom in which she was with her child. Two, in her evidence she stated that after raping her, the appellant asked for money. When she told him that she had no money, the accused threatened to kill her. The threats were pronounced when they were in the other unfished house. Given that, PW3 gave in and told the appellant 13 that she had Tshs.20,000/-. They returned to the house where she gave the appellant Tshs.20,000/-. In my view, this evidence is so wanting. I do not understand how an armed robber could take the victim from her house to the unfinished house only to threaten her. Normally, money is not kept outside the house let alone in the unfinished buildings. It is very strange in this case for an armed robber to take his victim away from her house where there is a likelihood that there was money to the unfinished building. Three, in her evidence, PW3 said nothing about the intensity of light. She only stated that there was an electric light. Trite law is that when the witness testified that he identified a person as there was a light, such a witness is expected to testify on the intensity of the light. This is because different sources of light have different intensities. Likewise, a source of light has different intensities. That being the case, the Court of Appeal insisted on the importance of evidencing the intensity of light in the case of Hassan Said v. Republic, Criminal Appeal No. 264 of 2015- CAT (Unreported). It was stated: ‘It is however, now well settled, that if a witness is relying on some source of light as an aid to visual identification such witness must describe the source and intensity of such light in details. The Court has repeatedly in its various decisions 14 in this respect, emphasized on the importance of describing the source and the intensity of the light which facilitated a correct identification of the appellants at the scene of crime; See Waziri Amani v. Republic (supra), Richard Mawoko and Another vs. Republic, Criminal Appeal No. 318 of 2010 (CAT) at Mwanza and Gwisu Nkonoli and 3 others vs. Republic, Criminal Appeal No. 359 of 2014 (CAT) at Dodoma; (both unreported). Further, the apex Court had the opportunity to amplify the issue of the intensity of light in the case of Issa S/O Mgara @Shuka v. Republic, Criminal Appeal No. 37 of 2005-CAT (Unreported) as follows: ‘It is our settled minds, we believe that it is not sufficient to make bare assertions that there was light at the scene of the crime. It is common knowledge that lamps be they electric bulbs, fluorescent tubes, hurricane lamps, wick lamps, lanterns etc. give out light with varying intensities. Definitely, light from a wick lamp cannot be compared with light from a pressure lamp or fluorescent tube. Hence the overriding need to give sufficient details on the intensity of the light and the size of the area illuminated.’ 15 In his submission, Mr. Ruguge tried to impress me that PW3 testified on the intensity of light. I perused the records and found nothing suggesting that PW3 uttered a single word as to the intensity of light. Four, PW3 stated that the appellant was familiar to him as she used to see him at Kahama Stand. She testified that she used to hear people calling him Lucas. This evidence suggests that PW3 knew the appellant before the incident. However, I find it difficult to agree with the evidence adduced by PW3 and Mr. Ruguge’s arguments that the evidence was of recognition. I say so because, in her evidence, PW3 did not state the intensity of the light. The fact that PW3 alleged to have known the appellant before the incident does not erode the possibility of mistaken recognition. In our normal life, people sporadically make mistakes as to the recognition of persons, including family members, even in day times. That being the case, to erode any possibility of mistakes in recognizing suspects, the witness must state the intensity of the light to convince the trier of facts that he really recognized the suspect. In this, I find solace in the case of Issa S/O Mgara @Shuka (Supra) where the Court of Appeal had this to state: ‘.... even in recognition cases where such evidence may be more reliable than identification of a stranger, clear 16 evidence on source of light and its intensity is of paramount importance. This is because, as occasionally even when the witness is purporting to recognize someone whom he knows, as was the case here mistakes in recognition of dose relatives and friends are often made.’ Further, in my view, for the recognition evidence to be considered watertight, the witness must mention some features of the recognized person. These include appearance, colour, height or any unusual marks of identity. The features must be mentioned to the persons who first received the information as to the commission of the offence and before the complainant sees the recognized person. It is an established principle that the person who was the first to receive the information about the offence and the description of the accused person must testify on that. Likewise, if possible, the first information report to the police ought to be tendered to prove whether the description of the accused person was relayed when the matter was reported. In this, I am fortified by the position taken by this Court in the case of Bushiri Amiri v. Republic [1992] TLR 65. In the said case, this Court was guided by the position of the defunct East African Court of Appeal in 17 the case of Rex v. Mohamed Bin Allui (1942) 19 E.A.C.A. 72 where it was stated: ‘This Court has previously pointed out and we wish to repeat, that in every case in which there is a question as to the identity of the accused, the fact of there having been a description given and the terms of that description are matters of the highest importance of which evidence ought always to be given; first of all, of course, by the person or persons who gave the description and purport to identify the accused, and then by the person or persons to whom the description was given ....... If the description is recorded at the time in an Occurrence Book, Diary or in any other form of writing such book or writing should be put in evidence, if admissible ...’ Looking at PW3’s evidence, she did not describe the armed robber in terms of his features. She only stated that she knew his name as Lucas. For those reasons, I hold that PW3's recognition evidence did not eliminate the possibility of mistaken recognition. Despite the fact that I have already expunged Exh.P-02 (stolen property from the records), I would like to say a word or so regarding the identification of the alleged stolen property. The settled law is that when 18 a person complains to the police that his or her property has been stolen, such person must describe salient features of the said property. These include the brand name, size and colour of the stolen property. In the case of Boniface Sichone v. Republic, Criminal Appeal No. 180 of 2019, this Court had this to state: ‘The pre-trial step/procedure for identifying stolen goods was underscored by this court in the case of Fadhili Mohamed vs. Republic [1974] LRT. 5, following Republic v. Morris Fabian, High Court Bulletin No.5 of May 1963 (by Spry, J. as he then was). The court guided that, the desirable practice to be followed on identification of such goods is, inter alia, this; that when a person reports a theft to the police, he should be called upon to describe the goods fully. The description should include the make of goods, manufacturer's number, quantity and any distinguishing features such as size, colour, defects, reparation etc. Moreover, a person should normally not be asked to identify property suspected to be stolen unless he has first reported on his loss as shown above.’ Having scanned the records, I found nothing suggesting that mark “M” which was alleged by PW3 to be on the TV set and subwoofer was 19 mentioned by her to the police when she reported the matter. What is reflected in her evidence is that on 3rd March, 2023 she was summoned by Afande Maiga to the police station to identify the stolen property. Thereat, PW3 testified to have identified the TV set and subwoofer as they were marked “M”. In the absence of any evidence by PW3 that the peculiar mark “M” on the stolen property was mentioned to the police when she reported the matter, it is inexplicable to appreciate that the seized property was robbed from her. It is further incomprehensible how PW2 jumped to conclude that the seized property was of PW3 in the absence of the evidence that she mentioned mark “M” to the police. It should be noted that identification of the stolen property during the trial had no effect if, at the time of making the first information report to the police, its features were not recorded. In such circumstances, if I had not expunged Exh.P-02 from the evidence, still I would not have been convinced that the seized property was properly identified by PW3 before the trial. Turning to the cautioned statement, I hasten to state that the same was recorded within the time. However, I understand that when the cautioned statement is not objected to, it does not mean that the trial 20 court should consider it as telling the truth. The court must satisfy itself that what is stated in the cautioned statement is the truth. Further, it is my view that when the prosecution relies on the cautioned statement, the statement must reflect what is contained in the charge sheet in terms of the particulars of the offence. When the cautioned statement contains different particulars from those stated in the charge sheet, such a statement is worthy of no consideration. In essence, a confession that is not direct and positive as far as the charges are concerned is not a true confession. Further, when there is a difference between the prosecution’s witnesses and the cautioned statement, such a statement is considered not to be true. See: Afolabi v COP (1961) All NLR 654 In this case, according to the particulars of the robbery, the appellant was alleged, among other things to steal, Tshs.20,000/-. This was also cemented by PW3 in her evidence. However, looking at the cautioned statement, it is clearly recorded that the appellant stole Tshs.10,000/-. That, in my view, is the contradiction that goes to the root of the case which makes me find that the appellant’s cautioned statement was not true. Since I have found that the identification evidence in respect of the appellant and the stolen property was in shambles, I find it difficult to 21 sustain a conviction of the accused based on the cautioned statement that is materially differing from the particulars of the armed robbery. The established principle is that the evidence must prove what is alleged in the charge sheet. Given that, the cautioned statement does not prove what is alleged in the charge sheet. In his evidence, the appellant categorically denied having a hand in the commission of the offence. Further, the appellant alleged that the seized property was his. Likewise, he testified that he was beaten before being forced to sign the documents which turned out to be his cautioned statement. Trite law is that an accused person bears no duty to prove his innocence. What he is required to do is to dent the prosecution’s case. For the reasons supplied above, the appeal is allowed as the prosecution failed to prove the offence of armed robbery beyond a reasonable doubt. Hence, the trial court’s proceedings, judgment and orders are hereby quashed and set aside. I order Mr. Shikingwa’s immediate release from custody unless he is held for a lawful cause. Order accordingly. Right To Appeal Explained. DATED at MWANZA this 21st of October, 2024. 22 KS KAMANA JUDGE 23