malanjabu so shimbi another vs republic 2007 tzhc 115 13 december 2007

IN THE HIGH COURT OF T A N Z A N IA A T TAB O R A (Tabora R egistry) (DC) CRIM IN AL APPEAL NO. 143 CF 144/2007 O RIG INAL CRIM INAL CASE NO. 38 OF 1998 OF THE DISTRICT COURT OF B AR IAD I DISTRICT A T BARIADI BEFORE. D.D. MALAMSHA,Esq; DISTRICT M AG ISTRATE) 1. M ALANJABU s/o S H IM B f^ U ..................... APPE LLAN T 2. D A M IA N I s/o CHARLES — ( Ori gi ns] A ccu sed) VERSUS (O rigin al Prosecutor) JUDGMENT 19th N o v .0 7 & I 31,1 Dec, 07 MUTULIZL I. This is a consolidated appeal. The l sr and 2nd Appellant herein, were arraigned before the District Court o f Bariadi as 3rd and 1st accused together with two others, on one count of, “robbery with fire arms” (sic) c/s 285. Three o f the accused; the 1st, 2nd and 3rd accused were convicted and each sentenced to thirty (30) years imprisonment, plus 12 (tw elve) strokes l corporal punishment on 26/5/98. The 2nd accused has since passed away. The appeal is against both conviction and sentences. Both appellants appeared to argue their respective appeals. The Respondent Republic was represented by Mr. Rweyongeza, learned State Attorney, who supported the conviction. At the trial, it was alleged that the appellants were '"jointly charged on 4"' day o f February, 199S at about 1.30 hrs at Region, did steal two m otor vehicles batteries valued at Tshs. 100,000/= the property o f Lugurv Co-operative Society and at o r immediately before or immediately after the rime o f such stealing did use firearm in ordi-i To obtain o r retain the stolen property.” To prove its case the prosecution had called four (4) witnesses. P.W.l Hamis Ludono was the night watchman at the co­ operative society. He alleged that he was invaded and overpowered by a gang o f six people, who; he claimed to 2 identify by face only, and that one o f them whom he later identified to be the 2nd appellant was holding a gun at the time. P.W.2 Gideon Maduhu was the secretary to the Co­ operative society. He testified that he learnt about the theft of the two batteries from an unnamed turn-boy o f the vehicle, and that, upon reaching the scene, at 8-00 am on 4/2/98 in the company o f the driver, P.VV.3 Masuka Shirinda, he found the batteries missing, the watchman’s clothes torn, and Ms weapons broken. Then he went on to narrate the story as told to him by P.W .l. - - * 11 > - n -------- lead them to the place were the bandits had sold the batteries, which were found to be with one Sayende, P.W.4. P.W.4 alleged that the batteries had been left with him by the l sr appellant accompanied by 5 other persons, as security for money lent to them, allegedly to service their vehicle which had broken down. The Appellants who were arrested 10 days after the alleged theft, denied the charge. They challenge the conviction on grounds inter alia that; 3 1) The identification testimony o f a single witness-P.W.l was not credible to sustain a conviction. He did not describe his assailants to any body. 2) That the testim ony o f P.W.2 and P.W.3, was m ainly hearsay, and was wrongly admitted; and w rongly relied upon by the trial Court. 3) The alleged stolen batteries were recovered from or allegedly found in possession of P.W.4, who was therefore a possible suspect and therefore an treated with caution; in any even it was not credible. 4)' That the learned district magistrate m isdirected himsell on the question o f the credibility o f P.WM and P.W.-J; after it was proved that they had falsely testified against the 4th accused who was discharge; he ought not to have believed the rest o f their testim ony in relation to the appellants. Mr. Rw eyongeza, learned State Attorney, did not address him self to the above specific grounds o f appeal, but addressed the Court generally arguing that; 4 There is sufficient evidence on record to prove the. charges beyond reasonable doubt. P.W. 1 the night watchman said that he was able to identify them because the electric lights were on. The 1st accused who is the 2nd appellant is, (according to P.W .l) the one who w7as armed and kept guard over him. He was therefore able to identify him. Later he identified him while they were at the bar on 13/3/98. ' it is argued further that according to the evidence; they admitted com m itting the crime and lead to the place were they had sold the batteries. It was his contention therefore, that this evidence was corroborated by the testim ony o f P.W.2 Gidion s/o Maduhu (at page 6 o f the typed proceedings), h is also supported by the evidence o f P.W.4 Samwel Sayenda - page. 8 He therefore concluded, that these were credible witnesses and on the authority o f DPP .V. NURU MOHAMED GULAM RASUL (1988) T L R 82 - adm ission made before many people is admissible, . as it lead to the discovery o f the batteries.- 5 In answer to theses arguments, the 1st appellant argued that, the contention by the learned State Attorney was not tenable, because it is based on unproved assumption that the accused were arrested together. This is not true. The 2nd accused who has since passed away, had been arrested and beaten up by the time the 1st appellant was arrested. It is also not true that he, (1st appellant) admitted the offence, and that it is the 2nd accused who lead the group to a.. j.o nwL cj. a iL ia u ic Liiai an atLUbcu. auiiinieu. or lead to the discovery o f the stolen batteries. The r r appellant in turn argued that he was not arrested with any o f the others while at the bar, but he was arrested alone while at a “restaurant” and taken to the place where the theft was alleged to have taken place-on 01/2/1998. He was beaten up. In m y considered opinion, the appellants have raised serious grounds o f appeal which merit serious consideration. On the issue of' identification and the need for early description o f the iden tified suspect the law is well settled. In MOHAMMMED ALHUI V. REX 9 EACA, 72, it was held; 6 “In eveiy case in which there is a question as to the identity o f the accused, the fact o f there being a description given, and the terms of that description given, are matters of the highest importance o f which evidence ought always to be given; first o f all, o f course, by persons who give the description and purport to identify the accused, and then the persons Co whom the description is given" This early description o f a suspect, prior to identifying iiiiii, mu^i ut: as iu pnyMLtu iiictiKs, uuiiu, weigiu, neigni uress etc: ABUSHIRI AMIRI V.REP (1992) T.L.R. 178; RAYM O ND FRANCIS V. REP. (1994) T.L.R. 100. Now, according to P.W.l all that he said; and what P.W.2 and P.W.3 heard from him; was only the allegation that he could identify his assailants by face. That evidence was therefore weak from the beginning; it could not on its own, sustain a conviction. There was nothing to corroborate. Secondly, as held in JAMES BULOLO & AN O TH ER V.R. (1981) T LR 283, it is the duty o f the court; first o f all, to collect analyse, and assess the evidence; and see how far, if at all, it touches upon every accused as an individual. The court 7 is not to lump the accused persons together and wrap them up generally is the blanket of the prosecution evidence. There is therefore a need to re-evaluate the evidence on record. The most critical testimony on the charges was that of P.W.l. At page 4 o f the typed proceedings his testimony is recorded thence; “1 remembered (sic) on 13/2/98, 1 saw the l sr to 3rd accused at a certain (sic) Bar at r unnvi, *-■*» ji t^fjunea to tne secretary and the accused persons were arrested. They were interrogated and they denied to he responsible with the incident. They (sic) 3rd accused before he was arrested he knew (sic) and absconded. Therefore the 1st and 2nd accused were first arrested. Later the 3rd accused was arrested and interrogated and admitted to have stole (sic) the batteries and he volunteered to take the people to the place where they sold the two batteries stolen. It was found at Sayenda. The 2nd accused on the next day led the people to Sayenda again and the 2nd battery was recovered. This was on 14/3/98 ” This piece o f evidence is contradictory. If we m ay try to make sense o f it-only the 1st and 2nd accused were arrested first and interrogated - but denied. Later the 3rd accused who is the 1st appellant adm itted after his arrest, leading to the discovery o f one o f the batteries. Then we are told the 2nd accused also adm itted meaning, he changed his m ind on the next day! But this witness when cross exam ined by the 2nd accused said “You were arrested together on 4 /2 /9 8 what I have told But, was he telling the truth? According to P.W.2 (page.6). “ 3rd accused said that he should not be beaten and told us that the batteries were at Bariadi at one person called Sayenda where they sold it there and he has not yet paid. We came to Sayenda and found one battery with could be identified. The second battery was mentioned by 2nd accused But, during cross examination, P.W.2 said that the 2nd accused lead them to Sayenda, so did the 3rd accused. 9 If I may ask, if one o f the accused had already lead to the recovery o f the batteries, why w ould it require, a second accused to lead the same people to the same person for the same purpose? This brings us to the testim ony o f P.W.4 Sayenda himself. I f he is to be believed, he testified that six people including the accused brought two batteries which he checked and found them to be OK. He gave them Tshs.55, 000/= with the condition that he w ould return the batteries to them upon the accused repaying the m oney on a date and tim e which he the company o f the 3rd accused on 13/2/98, he did not have all the two batteries because the 2nd battery “was in town at night.” Com m on sense tells us then, that; if this was indeed the case, then why, I ask; was the 2nd accused taken to Sayenda’s place the next day fo r the 2nd accused to have to say: that he had gone fo r the second battery which P.W.4 had already acknowledged to the same police officers the previous day? It occurs to m e that this story; as m ade up by the prosecution witnesses, does not tally w ith the natural and probable consequence o f things in the circumstances painted by the witnesses. 10 The Appellants therefore, have a point: when they challenge the credibility o f these witnesses. In his judgm ent, the trial district magistrate, held that there was no doubt that the 4th accused was by 5/2/98 in police custody, yet P.W.l, and P.W.4 had stated on oath to; have seen and iden tified him at the scene o f the crime on 4/2/1998, (P.W .l) and at Sayenda’s (P.W.4) on 5/2/1998, respectively! It is th erefore clear, that they had not been quite right in T O S T e s p e c I * . v r .* * w i M m m r u iu iiu v l . — — - in broad day light it was not even mistaken identity, but outright falsification o f testimony!! Indeed as argued by the appellants, this witness ought not to have been believed at all. He had his own skin to spare. He was an accomplice; and the explanation given would not, had the police been m inded to pursue the truth, saved him from being charged, on the basis o f recent possession. For, if I may ask, why: i f the batteries were received by him for security, w h y w ould they be kept in separate locations? 11 A nd if P.W.3, the driver identified the batteries, was there any need for the 2nd accused to be taken to iden tify the same battery already adm ittedly in the possession o f P.W.4” In the foregoin g circumstances, the trial m agistrate erred in law in failing to analyse the evidence adduced before him, leading to a m anifest failure o f justice. There w ere sim ply to many holes in the prosecution’s case. For the above reasons, I allow the appeals. Consequently the conviction o f the appellants on the charged offen ce is hereby quashed and substituted w ith an acquittal o f b oth appellants on the charged offen ce o f armed robbery c/ss 285 and 286 o f the Penal Code (Cap.16 R.E.2002) As a result they are set at liberty. They should be released im m ediately unless they are held for other law ful custodial orders. A.K. MUJULIZI JUDGE 7/ 12/2007 12 Judgment delivered in the presence o f the appellants and Mr.Mokiwa learned State Attorney fo r the respondent Republic. JUDGE 3/ 12/2008 Right o f appeal explained. A. K. MUJULIZI JUDGE 13/ 12/2007 13