hakizimana emmanuel vs republic 2007 tzhc 470 7 may 2007

IN THE HIGH COURT OF TANZANIA AT BUKOBA (HC) CRIMINAL APPEAL CASE NO. 18/2001 (Arising from Criminal Case No. 9/2000 at Ngara District Court) (Before: M. Paul, Esq. DM) HAKIZIMANA EMMANUEL ======= ====APPELLANT VERSUS THE REPUBLIC ================RESPONDENT JUDGMENT Mussa. J. In the District Court of Ngara, the appellant, a Rwandese, was arraigned for Robbery with violence contrary to section 285 and 286 of the penal code. The particulars were that on the 23rd day of January, 1999 at Nyakiziba village, within the District of Ngara, the appellant did steal cash and an assortment of items totally valued at a sum of Shs:324,600/= the property of one Mathayo Paulo. The particulars further alleged that immediately before such stealing the appellant used physical violence, on the person of one Magdalena Mathayo in order to obtain or retain the said properties. The case for the prosecution was comprised of the three witness. On the alleged day and place, Magdalena Mathayo (PW2), a peasant of Nyakiziba village had been sleeping when around 11.00p.m. a huge stone banged on the front door and opened it. Moments later, four bandits entered into her bedroom and set upon collecting items. Magdalena who had a machete bravely confronted one of the thugs and chopped a finger off him. The bandits also cut her on the head and then left but took with them a bicycle two radios, a bag with clothes, shoes and cash Shs: 123,000/=. Next, Magdalenas' husband Mathayo Paulo (PW1), who was away on duty as a security guard was informed of the incident and took his wife to hospital. Meanwhile, as he was re-arranging things back home, Mathayo saw a chopped off human finger close to their bed. He reported the incident to the police station and was advised, ironically though, to himself keep custody of the chopped off finger. Mathayo said that his wife Magdalena had indicated to him that she had not identified any of the bandits. But Magdalena produced in court the finger she allegedly chopped off from the bandit. In cross examination, Mathayo revealed that on the 29th day of January, 1999 he was informed that some of the refugees have been caught in possession of property suspected to having been stolen. He said he did identify his bicycle make phoenix and his radio make Panasonic. He further said that when those in possession was asked as to how they came by the properties, they said that they bought them from one Emmanuel Kotanyi who is without a finger. The prosecution then featured an interpreter, one Didas Ndahinze (PW3) who said he was requested by the police to interpret while the appellant was having his statement recorded. He said that the appellant was asked if he participated in the theft to which he admitted and explained further that he was with three others and that in the course of the struggle he had his finger chopped off. Then, after fielding this witness, the prosecution, paradoxically, closed its case. Somehow, without details as to how, the appellant was arrested. From the memorandum of the undisputed facts, it comes to light that the appellant was a refugee at Lukole Camp and was arrested at the camp on the 13th day January, 2000, that is, about a year later. As I said, the prosecution did not wish to allude to the circumstances of his arrest. In his defence, the appellant did not quite dispute the allegation that he was without a finger but his explanation was that the finger was chopped off in Rwanda at war. He said he was arrested at the camp and told of a Tanzania complainant who had claimed that he was the bandit who stole his items and who had a finger chopped off at the scene. But when the appellant was shown to Mathayo, the latter is said to have failed to identify him. The appellant otherwise flatly denied that the produced finger was his and protested innocence. On the totality of evidence, the learned trial Magistrate was impressed by the version as told by the prosecution and made a finding of guilty. The trial courts' reasoning is apparent from the following extract of the judgment:- ...when the accused was arrested she (PW2) did identify him as the one who was among her assailants and she did verify so by producing the cut finger (exh.Pl) and really the accused small finger of the left hand is cut. This evidence of Magdalena (PW2) has been cemented by the evidence of Didas Ndalinze (PW3) who confirmed that to know the accused before the incident that he had his aii lingers but that he saw him with no one finger after the incident. Upon conviction, the appellant was sentenced to a term of 15 years imprisonment. He now appeals setting the points of which he complains in a verbose petition comprised of seven grounds of appeal. Before me, the appellant, unrepresented adopted the grounds of appeal without more. For the respondent Republic Mr. Kweka fully supported the conviction and sentence. He said that PW2 did not identify any of her culprits but she was forthright that she chopped a finger off one of them. Learned state attorney then submits, consistent with her evidence, PW2 that is, the appellant upon arrest had one of his fingers chopped off to which he did not give a satisfactory account on how he got into the predicament. To begin with, I must, express my disappointment that this case was poorly officiated. No evidence was called by the prosecution to explain how the appellant was arrested and there was not a shred of evidence to link the appellant to the crime apart from the finger. Mathayo (PW1) tried to provide the link in his evidence relating to some of his properties being recovered from refugees who allegedly bought them from one Emmanuel Kotanyi who, incidentally, was also without one of his fingers. One would have expected the prosecution to explore this revelation and, perhaps link it to the appellant but; the prosecution was simply unconcerned and adduced no further evidence relating to it. It was not established, then, that the appellant also answers to the name of Emmanuel Kotanyi just as the details of the retrieved properties were not availed. It seems to me while the prosecution desired to have the appellant convicted, it was also anxious, for whatever purpose, to conceal the details of the incident. If I may so express it, there is a price for it much as the prosecution cannot have it both ways. There was then evidence from Didas, the interpreter who said that he was requested by the police to interpret while the appellant was having his statement recorded. The irony is that the officer who recorded the statement was not called as a witness and neither was the statement produced. Obviously, the evidence of the recording officer and the statement itself was essential to establish, if at all, the statement was made. No explanation was offered whatsoever by the prosecution to account for this disturbing aspect of the case. That being so, without the statement and the evidence of the recording officer, the testimony of the interpretor cannot, in my view, be relied upon. There was yet another misnomer at the level of investigations. It was out of the ordinary for the police officers to let Mathayo keep custody of the chopped off finger instead of it being in the custody of the police. No wonder, no meaningful action was taken to link the finger to the appellant. In such a serious case as the present, one would have expected the police officers and; certainly it was in the best of their interests to have the finger submitted to the Chief Government Chemist for a DNA test. That said, and dealing with the petition and the rival submissions of the learned state attorney; there was insufficient material to link the appellant with the robbery. The learned trial Magistrate was, perhaps, carried by Magdalena's claim that upon the appellants' arrest, she verified that he was the one whom she had his finger chopped off. In truth, there was not a shred of evidence to indicate how, if at all, Magdalena made this verification. She did not identify any of the suspects and it would have been impossible for her to make such a verification. The learned trial Magistrate went so far as taking into account extraneous material of a very damaging nature. Didas, for instance, did not testify that he knew the appellant before the incident and that the appellant had all his fingers intatt before the incident. What actually Didas testified was this:- ...Iknow the accused he is called Hakizimana. I saw him for the first time at police station Ngara. The brief and obvious fact from this extract is that Didas met the appellant for the first time after the latters arrest. It is unfortunate that the learned trial Magistrate strayed away from the record of his own making. All factors considered, there is merit in this appeal. With respect to the learned state attorney, the appellant certainly had his finger chopped off but, whatever was his predicament, on the evidence adduced at the trial, is a matter of mere speculation. That is really all that one can say with certainty. The appellant had no burden to account for his missing finger and, to me, his account that the finger chopped off at war in Rwanda is a possibility that was discounted without due regard and consideration. In the light of the foregoing, I will allow this appeal. The appellant is to be released from custody forthwith unless held there for some other lawful cause. Order accordingly. X.M. Muss; 'DGi JUDGE 7/05/2007 13/7/2007 Coram: Before: K.M. Mussa, J. Appellant: Present For the Republic: Mr. Ndjike Judgment delivered in open court in the presence of the parties. K.M. Mussi JUDf/E 13/7/2007 ATBUKOBA 13/7/2007