20060601 TZCA Dar es Salaam 2

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: RAMADHANIJ.A., MSOFFE, J.A., And KAJI. J.A.) CRIMINAL APPEAL NO. 51 OF 2001 1. MOHAMED HASHIMU : I 2. YUSUPH SHABAN! 3. SUDI SALE HE @ BOKA 4. ABDALLAH BAKARI@ WABONDE jl . . . . . APPELLANTS 5. MAULIDI SALUM @ POWER VERSUS THE REPUBLIC ............................................. RESPONDENT {Appeal from the decision of the High Court of Tanzania at Dar es Salaam) (Kimaro, J.) dated the 16th day of July, 2003 in HC Criminal Appeal No. 15 of 2001 JUDGMENT OF THE COURT 5 May & 1 June 2006 l<AJI. J.A.: In the Resident Magistrate's Court of Dar es Salaam at Kivukoni, Mohamed Hashimu, Yusuph Shabani, Sudi Salehe @ Baka, Abdallah Bakari @ Wabonde, Maulidi Salum @ Power, who are the 15\ 2nd , 3rd , 4th and 5th appellants respectively, were jointly charged with, and convicted of the offence of armed robbery, contrary to sections 285 and 286 of the Penal Code Cap 16. They were each sentenced to 30 years imprisonment. . 2 It was alleged by the prosecution that, on 15.8.1998, at about 20.15 hours, at Kibamba area, within Kinondoni District, the appellants, jointly and together, robbed PWl Lucy Shirima of her motor vehicle Registration No. TZF8701 make Toyota Crown valued at 4,000,000/=, and an assortment of property from her grocery which were valued at about shillings 500,000/=. These properties included a weighing scale. PW1 claimed to have identified the appellants to be the ones involved in the crime and that the 5th appellant was armed with a gun which he discharged one shot in the air to scare those who might have come to rescue her. Her grocery attendant PW4 Anthony Elias claimed to have identified the 2nd appellant. Later the motor vehicle was recovered at Korogwe. The record is not clear under which circumstances it was recovered. The weighing scale was also recovered at Manzese at either China's home or at China's brother's home. The appellants were arrested through information which the police gathered in the course of their investigations. In their defence the appellants denied to have been involved in the offence charged. 3 1 The trial court was satisfied with the prosecution evidence. , The i appellants were convicted and sentenced as above. They were ; aggrieved. Their appeal to the High Court was dismissed for want of merit. Still undaunted the appellants pref~rred this appeal. i In their joint memorandum of appeal they preferred six grounds of appeal which basically revolve around identification · and their ! repudiated/retracted caution statements. In elaboration of their grounds of appeal, the appellants! contended that, since the offence I was committed at night, it was imperative for the prosecution to 1 I adduce sufficient evidence to show how they were identified under such conditions, and that such ev[ldence was not forthcoming. They I further contended that since then~ is no evidence on how they were identified at the scene of crime, ,PWl's evidence that she identified i them at the identification parade1 except 5th appellant who was not there, may not be all that true,; The three appellants who were alleged to have admitted in their caution statements denied to have 1 made any and denied the truth of the contents therein. The appellants observed with some reservation why China or his brother were not called as witnesses ih view of the allegation that the 4 weighing machine was found in their possession, alleging it had been taken there by the appellants. On his part Mr. Kaduri, learned Principal State Attorney who appeared for the respondent Republic, did not support the conviction mainly on the ground that the prosecution evidence on the appellants' identification was not watertight, and that the appellants' caution statements left a lot to be desired. It is common ground that the event occurred at night at about 8.15 p.m. The Court has emphasized in its numerous decisions that when an offence is committed at night the question of identification is paramount and no court should act on evidence of visual identification unless all possibilities of mistaken identity are eliminated and the court is fully satisfied that the evidence before it is absolutely watertight. See for example the case of Waziri Amani v. R (1980) TLR 250. In the instant case PW1 claimed to have identified either some or all the appellants. But she did not disclose what enabled her to identify them. She did not say there was light and from what source. 5 PWl was invaded by bandits when she was about to open the door I of her motor vehicle which was pprked about thirteen metres from i her grocery. She did not say whether there was light in the grocery I and whether it was powerful enowgh to illuminate sufficiently where i she was attacked. Under the circumstances it cannot be said with certainty that the condition was favourable for a proper identification and that the appellants were properly identified. Since the evidence of identification at the scene of crime was not absolutely watertight, the idehtification of the appellants at the I identification parade by the sam~ witness PWl cannot be of any . i evidential value. PW4 claimed to have identified the 2nd appellant. But like PWl he did I not disclose how he identified him and whether there was sufficient I I light where he said he saw the 2;nd appellant. This witness was not I I, present at the identification parade. Both PWl and PW4 did not know the appellants before the event. Under the circumstances it would be dangerous to hold that they properly identified the I . • appellants. The appellants were hot properly identified. 6 As far as the caution statements are concerned, the 1st, 2nd and 3rd appellants were alleged to have admitted involvement in the offence charged in the caution statements recorded by PW2 No. C9744 D/Cpl Jordan. But at the ttial the 1st , 2nd and 3rd appellants repudiated them alleging they did not submit any statement to PW2, and that the alleged caution statements were made by the police on their own. A trial within a trial was conducted to determine their admissibility. But for unknown reasons the 3rd appellant was not called upon in his defence. The court ruled all 3 caution statements to be admissible and marked them collectively as Exhibit P3. In convicting the appellants the learned trial Principal Resident Magistrate relied also on the caution statements. However he did not warn himself of the danger of convicting on uncorroborated repudiated caution statements. It is an established principle of law that it is dangerous to found a conviction on an uncorroborated repudiated confession unless the 'court warns itself of the danger of acting upon such a confession and is fully satisfied that such confession cannot but be true. "'Dhere are numerous decisions of the Court emphasizing the point, for example the cases of Ally Salehe 7 Msutu v. R. (1980) TLR 1; Bon1bo Tomola v. R (1980) TLR 254; Hatibu Gandhi v. R (1996) TLR 12. In the instant case where the appellants had repudiated their confessional caution statements it was dangerous for the trial Principal Resident Magistrate to rely on them without warning himself especially that they were not corroborated in material particular. There was also the defence of alibi by the 2nd appellant. We note from the record that when the case was called on for trial the 2nd appellant intimated that in his defence he would raise the defence of an alibi that he was at Songea. He tendered some bus tickets which were taken by the public prosecutor. Indeed he raised it in his defence. But surprisingly both the trial court and the court of first appeal said nothing on the alibi., This was very unfair to the 2nd appellant. It should have been considered even if it would have been accorded no weight. There was an allegation by PW2 that the appellants led him to China's house where the weighing scale was recovered. However China did not give evidence and the record is silent as to why it was so. Had it been proved beyond all reasonable doubt that it was the 8 appellants who took it there the doctrine of recent possession would probably be invoked. All in all the prosecution evidence Was not strong enough to found a conviction for the reasons we have stated above. As observed earlier on the learned Principal State Attorney did not support the conviction, and in our view rightly so. I In the end result, and for the reasons stated, we allow the appeal, quash the conviction and set aside the sentence. The ' appellants are to be released from prison forthwith unless lawfully ' held. DATED at DAR ES SALAAM this 1st day of June, 2006.