eugen john hamis sahayo vs republic 2007 tzhc 372 19 october 2007

IN THE HIGH COURT OF TANZANIA AT MOSHI (DC) CRIMINAL APPEAL N0.24 OF 2006 (C/F CRIMINAL CASE N0.145 OF 2002 DISTRICT COURT OF ROMBO) EUGEN JOHN@ HAMIS SAHAYO......................... APPELLANT VERSUS THE REPUBLIC..................................................... RESPONDENT JUDGMENT HON. S. E. MUGASHA. J The appellant and another person were charged with armed robbery contrary to section 285 and 286 of the Penal Code and unlawful wounding contrary to section 228 of the Penal Code, Cap 16. The particulars of the offences were that the appellant and another person jointly and together on 6th November, 2001 at about 19:20 hours at Urauri Village, Rombo District within Kilimanjaro Region did steal one bicycle make phoenix valued at Tshs.70,000/= the property of one Theobard s/o Sindato and immediately before stealing that bicycle did use violence in order to obtain the said bicycle and did in the same incident unlawfully wound Kawedi s/o of Makundi by injuring on his head and mouth by using a panga. The appellant did not plead guilty. The trial Magistrate relying on the adduced evidence acquitted the second accused and convicted the appellant sentence the same to imprisonment for a term of thirty years and further ordered the appellant to pay compensation of Tshs.50,000/= in respect of the stolen bicycle. The appellant aggrieved with conviction and sentence has appealed to this Court raising six grounds of appeal which are conveniently summarized in to two mayor grounds as follows:- (2) That the Magistrate erred in admitting a cautioned statement which was objected by the appellant. (1) That, the appellant was not properly identified at the scene of crime. The appellant appeared in person and the Respondent was represented by Mr. Maugo, learned State Counsel. The appellant submitted that, he was beaten and forced to sign the confession statement and he did not know the contents of that statement. On the other hand, Mr. Maugo learned State Counsel did not support the appeal and in so far submitted that, as the confession statement which was tendered in Court as exhibit P I” was not objected by the appellant during trial, at this juncture, the appellant’s claim that he was not taken to the Justice of peace is baseless which renders the ground of appeal baseless. A point for determination is whether the confession statement was properly before the Court. It is evident that during trial PW3 D 9445 Dcpl. Christopher who investigated the case, testified to have prepared a cautioned statement after the appellant admitted to have committed the offence. As rightly submitted by the State Counsel, the appellant did not object to the tendering of the statement for he stated and I quote: “I have nothing to say about it” I had an opportunity of reading the cautioned statement. I am satisfied that the appellant did not object to the tendering of the cautioned statement during trial. However, a crucial question is whether that statement was in compliance with the law. I have noted that, the time when the interview was recorded is not indicated as is required under section 57(1)(e) of the Criminal Procedure Act,1985, and that statement was not certified by the appellant at the end of the record contrary to section 57(3) (a) (ii) of the Criminal Procedure Act, 1985. Notwithstanding the cited shortfalls, the trial Magistrate admitted and acted on that statement to convict the appellant. This was fatal as the trial Magistrate ought not to have admitted the cautioned statement which was prepared contrary to the law which imposes mandatory requirements which were not complied with. On the second ground of appeal, the appellant asserts that he was not properly identified at the scene of crime. The appellant contended that, it being that the offence is alleged to have been committed at night, so long as the source of light was moonlight then it was not possible to identify the appellant otherwise those witnesses would have described the attire, physical appearance or other features of the appellant, failure of which the testimony of the prosecution witnesses does not suffice proper identification of the appellant at the scene of crime. Moreover, the appellant asserted that identification parade was not conducted. On the other hand, the State Counsel strongly contended that the prosecution witnesses availed sufficient evidence to the effect that, PW1 and PW2 who were attacked by the appellant, knew the appellant before the incident as moonlight facilitated them to identify the appellant, in that regard. A pertinent point for determination is whether the appellant was properly identified at the scene of crime. It is evident according to the testimony of both PW1 and PW2 that, on the fateful day they were riding a bicycle when they were attacked by the appellant. PW1 and PW2 also stated that they knew the appellant before the fateful day and they identified the appellant at the scene of crime due to moonlight a bicycle flash. However, PW1 and PW2 as asserted by the appellant did not describe the attire or physical appearance of the appellant, and identification parade was not conducted. It is pertinent to note that proper identification of an accused person is crucial in proving a criminal charge for the purpose of eliminating any possibility of mistaken identity and that is why the Court of appeal for the same reason set out guiding principles in considering favourable conditions for identifying the accused as it was held in Amani Waziri vs. Republic (1980) TLR 250. Where it was held:- “evidence of visual identification is of the weakest kind and most unreliable. No Court should act on evidence of visual identification unless all possibilities of mistaken identity are eliminated and the Court is fully satisfied that evidence and the Court is fully satisfied that evidence before it is absolutely watertight In that regard, guidelines in the case of Amani Waziri are not exhaustive as it was held in the case of Juma Shaaban @Juma Vs. Republic. Criminal Appeal No. 164 of 2004 (unreported), which also is relevant to the appeal at hand whereby, the appellant claims not to have been properly identified because details of his identification were not given. It is common knowledge that details of identification of an accused person are required particularly where the witnesses did not know the accused before the incident. Evidence of PW1 and PW2 is to the effect that they knew the appellant before the incident as they were not seeing the appellant for the first time during the incident. In view of that and as it was held in Raymond Francis Vs. Republic (1984) TLR 100, it is not in every situation that description in detail of the identity of the accused is necessary. Where the appellant as in this appeal, was known to the witnesses before the incident, details of identification could be missing without adversely affecting the essence of evidence of witnesses pertaining to identification. As such, I am satisfied that the appellant was properly identified at the scene of crime and the 1st , 2nd, 4th and 6th grounds of appeal have no merit. As rightly submitted by the State Counsel, the trial was flawed with procedural irregularities which vitiated the trial, the State Counsel prayed to this Court to order a retrial because evidence paraded by the prosecution proved a charge against the appellant. The preliminary hearing was not conducted in accordance with section 192(3) of the Criminal Procedure Act, 1985. In the circumstances, the fact that the appellant did not sign the memorandum of undisputed facts which is an indicator that, the memorandum was not read over and explained to the appellant and the possible inference is that, the appellant was not aware of the nature of charges against him in order to prepare for his defence. Furthermore, the appellant was not informed of his right to have the Doctor summoned and cross examined on the contents of PF3 which was tendered in Court as exhibit P”l”. In the case of Kashana Buvoka Vs. R Criminal Appeal 176 of 2004 (Unreported) it was held that, when the report of PF3 is received as evidence, the Court is duty bound to inform the accused of his right under section 240(3) of the Criminal procedure Act, failure of which is an incurable omission as was held in Sultan s/o Mohamed Vs. R Criminal Appeal 176/2003. Apart from the procedural irregularities pointed out by the State Counsel, I have also noted a greater portion of the proceedings were not dated by the Magistrate who conducted the trial. Had it not been a guide by the date inserted in the CORAM, then it would not have been possible to know as to when was the trial conducted. In the circumstances, it is apparent that although the prosecution paraded sufficient evidence to prove a charge against the appellant, yet the trial was flawed with procedural irregularities which occasioned injustice on the appellant as the trial was defective. Thus, it being that the prosecution proved a charge against the appellant, in the interest of justice, I nullify the entire proceedings and order a retrial. S. E. MUGASHA JUDGE 19/10/2007 Judgment delivered in the presence of the appellant and Mr. Rwegerela, State Counsel. 19/10/2007