araymond so abeid others vs republic 2008 tzhc 304 5 february 2008

IN THE HIGH COURT OF TANZANIA AT TABORA APPELLATE JURISDICTION (Tabora Registry) (DC) CRIMINAL APPEAL N0.60 CF 61 CF 62 OF 2007 Original Criminal Case No.22 of 1999 of the District Court of Kigoma AT KIGOMA BEFORE; S.N. MAFURU - Esq. SENIOR RESIDENT MAGISTRATE ARAYMOND S/O ABEID AND OTHERS................... APPELLANT VERSUS THE REPUBLIC........................................................... RESPONDENT JUDGMENT 19lh November, 07 - 5'1' February, 08 KIHIO. I. Appeal No.60 of 2007, 61 of 2007 and 62 of 2007 have been consolidated. The appellants, Araymond s/o Abeid, Bienven s/o Mali In and Fari s/o Achembo were convicted of Armed robbery contrary to section 285 and 286 of the Penal Code, Cap.16 Vol.l of the Laws and were each sentenced to thirty (30) years imprisonment and twelve strokes of cane. and took out Yamaha 25 HP boat engine and they assisted him to take it out of the boat. He (PW2) further stated that they gave the appellants porridge and hot water to revive them and thereafter they handed them (appellants) to the area “Kitongoji” Chairman and they (PW1 and others) left. In cross - examination by the 2nd appellant, he told the trial court that he (2nd appellant) took a broken thermos, a plastic containing twenty litres of petrol and a boat engine from the canoe where they (PW1 and others) rescued them and he (PW1) handed them to the area - “Kitongoji” Chairman. Kessy s/o RashidJFW2)jtoldw the trial court th a tjie was a > f — — m w i ............ ' ■■ ............ ........... ............................. 7 iungu sungu at Karago and that on 21.01.1999 at 16.00 hours the area - “Kitongoji” Chairman, one Amani s/o Songoro handed the appellants and Yamaha 25 HP boat engine to him to take them to Central Police Station. He (PW2) further told the trial court that he met one Mzee Juma s/o Sadiki at Maragalasi river looking for his engine boat. He (PYV2) stated that the said Juma s/o Sadiki introduced himself to him (PW2) and identified the boat engine handed to him (PW2) as his (Juma s/o Sadiki’s) stolen boat engine. In cross - examination by the 3rd appellant he stated that he was present when they (appellants) were brought from the water and he did not interrogate them. Juma s/o Sadiki (PW3) told the trial court that he was a fisherman and peasant and that he had one Yamaha 25 HP engine, two boats, fishnets, Anchor, 12 pressure lamps six ropes, canvas and thermos. He (PW3) further told the trial court that he had hired the fishermen, one Ayubu s/o Ismail, one Sanza s/o Juma, one Haruna s/o Charles, one Maulidi s/o Ibrahim and others and on 16/1/1999 at 18.00 hours the said fishermen went towards Kangamoja area to fish while having all the instrum ents. He (PW3) stated that at around 04:00 hours the fishermen came back and told him (PW3) that they had been invaded by bandits who robbed everything leaving only one canoe. He (PW3) further stated that they reported the VI O ■V“» t trace the stolen properties. He (PW3) added that after he received information from one youth that the bandits were at Central Police Station he went there and he found his boat engine which had a broken handle and a wood fixed using rubber (Exhibit PI). He (PW3) further added at the trial court that he also identified his boat engine because of it’s numbers as he had a receipt after he bought it from one Ramadhani s/o Iddi. Ramadhani s/o Rajabu (PW4), Chairman of the Village defence and Security Council, told the trial court that on 18/1/1999 he instructed the area Chairman to take the appellants to the Police Station after the said area Chairman told him (PW4) that they were bandits. No. C.4322 - Detective Corporal Makani (PW5) told the trial court that he was stationed at Central Police Station, CID Section and that on 18/1/1999 he received the Police case file in respect of the Armed robbery which took place at Katonga area at Lake Tanganyika. He (PW5) further told the trial court that the boat engine (Exhhibit.Pl) was stolen at gun point and was found while in possession of the said appellants. He (PW5) informed the trial court that the complainant identified the boat engine (Exhibit PI) by Serial num bers and had a no m nnm nn Tm nwn*)n- examination by the 2nd appellant, he (PW5) informed the trial court that he got information that the bandits were not identified by the victims. He maintained that they (appellants) were found with the property (Exhibit PI) recently stolen at gun point. Ayoub s/o Ismail (PW.6) told the trial court that on 17/1/1999 he was in the Lake fishing and at 00.01 hours they were invaded by three people who were armed. He (PW6) further told the trial court that the three people did not fire the gun but they pointed it to them and they took their (PW’s) fishnet, six pressure lamps, engine, four ropes and a tank. He (PW6) informed the trial court that the 3rd appellant was the one who was rowing the boat and came to t h e i r (PW6*s) boat and the 2nd appellant was the one who was holding the gun. He further informed the trial court that he identified the stolen engine because of it’s colour and Horse power and that the engine (Exhibit PI) shown to him in court was the one stolen during the commission of the Armed robbery. In cross - examination by the 1st appellant he (PW6) told the trial court that it was his first time to see them (appellants) at the scene of crime but he identified them because the light from the Pressure Lamps lighted in the water. He (PW6) further told the trial court that it was after he saw them at court house he identified them. erupted in D.R.C they boarded a boat and started their journey to Ujiji but when they were in the middle of the lake there was wind and the boat which was by then leaking capsized. He further told the trial court that in the course of saving themselves he held the said boat and he discovered that they were three people out of the six people who boarded the boat in the said boat. He informed the trial court that they stayed in the water until they were rescued when he (1st appellant) was unconscious. The 2nd appellant told the trial court that when he was at his home area at Kalemie a Civil war started and he fled to the next Village where he could easily escape to Tanzania. He (2nd appellant) further told the trial court that he (2nd appellant), four men, a woman and a child boarded a boat and traveled to Tanzania. He (2nd appellant) stated at the trial court that when they were in the lake in the midnight there was wind and the boat they boarded capsized and only three of them were saved. He (2nd appellant) further stated that they were rescued when the 1st appellant and 3rd appellant were in bad condition. In Cross-examination by the Prosecutor, he told the trial court that the engine was inside the water and he had to tell the people who rescued them that there was an engine in the water. Sfcaw-1, ' i ft HUASS&ttiRtP' ivyrfrrfif',iV•• '~r" ~ ■ « = S B B = ! S 3 = S a * B * 1f f J y I II ...... i .I — — — — — ^ — w ; t — I I „ I " .1 1 11 , 1 .... . ................. — — — — ■ ^■ ^— ■— — — — <^ .4 1 mmmmmmmmm The 3 appellant toldthel:narcourtthat‘'on^l8/l/1999 •""**— *■“ *— - while he was atKalemie a Civil war occurred and he fled to the other side of Congo. He (3rd appellant) further told the trial court that he (3rd appellant) and other six people boarded a boat and started the journey but in the midnight the boat capsized and they fell in the water. He (3rd appellant) stated at the trial court that in the morning .they were rescued and taken to Karago for treatment and thereafter he found himself at Central Police Station were they were charged. The 1st appellant raised nine grounds of appeal in his Petition of appeal while each of the 2nd and 3rd appellants raised eight grounds of appeal in their Petition of appeal. However, their grounds of appeal are mainly two, namely, 1. that the Learned trial magistrate erred in convicting them on insufficient identification evidence. 2. that the learned trial magistrate erred in law in invoking the doctrine of recent possession when the boat engine found in their (appellants) possession was not properly identified by the complainant (PW3) as his stolen boat engine. The appellants are unrepresented while the Republic is represented by Mr.Mokiwa, learned State Attorney. The appellants have nothing material to submit in support of m£imrQunds*of-appeal. ^ ■ .I— » li.„ Mr. Mokiwa supported the conviction. He submitted that there was no identification at the scene of Crime and the trial magistrate did not base the conviction on the identification evidence at the scene of crime. He further submitted that the appellants were rescued by PW1 when they were drowning and they were found while in possession of PW3^s stolen boat engine. He argued that PW3 identified the said boat engine because of the broken handle and the registration numbers as shown in the receipt (Exhibit PI) and so there was proper identification of the boat engine. He further argued that in the light of the evidence available there is sufficient evidence which proved beyond reasonable doubt the guilt of the appellants and so the trial court correctly convicted them. The 1st appellant submitted that PW1 did not give the description of the boat engine which was in the boat which drowned. The 2nd appellant submitted that the complainant (PW3) did not identify the engine allegedly found in the boat which drowned as his (PW3’s) engine. He (2nd appellant) further submitted that PW6 did not identify them at the scene of crime. The 3rd appellant submitted that PW3 did not give the description of the engine (Exhibit PI) at the Police Station but gave the description of the said Engine in court after ten months. The first issue for determination is whether the appellants were identified as the robbers at the scene of crime. PW6 is the only identifying witness in this case. Apparently this witness contradicted himself in his evidence. In his examination in chief he testified that the 3rd appellant was the one who was rowing the boat and came to their (PW6’s) boat and the 2nd appellant was the one who was holding the gun. In cross - examination he formerly testified that although it was his first time to see the appellants at the scene of crime but he identified them because of the light from the Pressure lamps lighted in the water but later on he said that it was when he saw them (appellants) at court house he identified them. Detective Corporal Makani (PW5) told the trial court that he got information that the bandits were not identified by the victims. From the evidence available I am satisfied that the vv^i n u -1 - cri appellants. Their identification is doubtful. As rightly held by the learned Resident Magistrate, it cannot be said that the appellants were identified at the scene. The second issue for determination is whether the boat engine found in the possession of the appellants was properly identified as the complainant’s stolen property. The complainant testified that he identified his boat engine (Exhibit PI) because of broken handle and the numbers. He did not mention the numbers which were at his boat engine (Exhibit PI). D e t e c t iv e Corporal Makani (PW5) gave ev id en ce at th e t r i a l court to the e f f e c t t h a t th e com plainant i d e n t i f i e d h i s 10 stolen boat engine at the Police Station by it’s serial numbers. Apparently, PW5 did not tell the court the serial numbers on which the complainant identified his stolen boat engine. From the evidence available the identification of the boat engine found in the possession of the appellants as the complainant’s stolen boat engine was such that it leaves much to be desired. The identification evidence of the boat engine recovered in the possession of the appellants is doubtful. The trial court was wrong in invoking the doctrine of recent possession when there was no sufficient identification From the foregoing, I am satisfied that the guilt of the appellants has not been proved beyond reasonable doubt. Consequently, I allow the appeal, quash the conviction and set aside the sentence imposed against the appellants. It is ordered that the appellants be released from prison forthwith unless otherwise lawfully held. S.S.S. KIHIO IUDGE 5 /2 /2 0 0 8 COURT; - Judgement delivered in the present of the appellants and the learned State Attorney, Miss. Ndavveka. S.S.S. KIHIO fUDGF. 5 /2 /2 0 0 8