mussa so jacob maloda others vs republic 2008 tzhc 260 3 october 2008

IN THE HIGH COURT OF TANZANIA AT DODOMA (APPELLATE JURISDICTION) (DC) CRIMINAL APPEAL NO. 19 C/F 38 and 41 OF 2008 (Original Criminal Case NO. 645 of 2006 Of the District Court of Dodoma District at Dodoma Before E. Mrangu, Resident Magistrate) 1. MUSSA S/O JACOB MALODA\ 2. BATHOLOMEO S/O MGAZA 3. MICHAEL S/O TOIBA 4. TUMAINI S/O SILAMU 5. SYLIVESTER S/O SILAU > APPELLANTS 6. HAMISI S/O RAMADHANI @ MAFUNGUO 7. SAMWEL S/O LANGWA J VERSUS THE REPUBLIC ..... RESPONDENT JUDGEMENT 27/8/2008 & 03/10/2008 KWARIKO, J, The Seven appellants namely Mussa s/o Jacob ) Mgaza, Michael s/o Toiba, Tumaini s/o Silua, nisi s/o Ramadhani @ Mafunguo and Samwel l Langwa were originally jointly and together Charged with the offence of Armed Robbery Contrary to Section 287 A of the Penal Code Cap. 16 Vol. 1 of the Laws as amended by Act No. 4 of 2004. They were Charged along with one Peter Joseph @ Babu Seya who was the Second accused at the trial and who was acquitted thereafter. The seven appellants were all Convicted and Sentenced to thirty (30) years imprisonment each. On being dissatisfied with the conviction and Sentence the appellants filed this appeal. Before I embark to decide the appeal, I shall hereunder recapitulate the facts of this case. They are as follows; On 15/12/2006 past mid night some thugs-invaded St Gabriel College at * Veyula area within Dodoma Municipality. The thugs found a watchman one Clemence Chebua, PW1 at the trial, tied him with ropes and threatened him with a gun where they managed to rob various properties including sewing machines, rolls of Clothes, welding machines, tins of paints, door locks and drilling machines all valued at Tshs. 20,407,500/=. In order to ensure that the robbery was smoothly undertaken, the thugs also were alleged to have poisoned the dogs that were assisting in guarding the area. The dogs were found unconscious after the thugs had left. PW1 did not identify any thug. After the incident, information was sent to the Police who started investigation. After about three weeks of investigation by the Police, things started to unfold. Several stolen items were found from different people within the municipality. Most importantly about seven sewing machines, parts of a wedding dress, three welding machines, rolls of clothes, electrical wires and sofa cushions’ material were found in possession of either the appellants or other people who stated that they bought the same from some of the appellants. The properties were identified by PW3 Sister Rozalia Maguzo at the Police and later they were tendered in Court by PW4, Anna James. I will show later in the Course of this judgment who was found with what and who sold what to whom. In their defence, the appellants denied the allegations and attacked the prosecution evidence to the effect that it did not prove the case against them beyond reasonable doubts. The appeNnts, each filed his memorandum of appeal raising several grounds of appeal. The appellants are essentially complaining that the prosecution case was not proved beyond reasonable doubts. I shall therefore decide the appellants’ appeals together albeit by looking into each appellant and what evidence implicated him and in which way. When the appeal came for hearing, except for the 6th appellant Hamisi Ramadhani @ Mafunguo who was represented by Mr Wasonga Learned advocate and argued the appeal on his behalf, the rest of the appellants each argued his grounds of appeal. On the other hand, Mr Kirumbi Learned State Attorney argued the appeal on behalf of the respondent, Republic. The first and second appellants share a similar fate, they argued that the evidence by the prosecution especially PW19 who investigated the case was not free from doubts as it did not fill many gaps in it. That, PW19’S evidence was not corroborated even by his colleagues he mentioned they were together when they allegedly saw them in a car that its number was not mentioned. Mr Kirumbi Learned State Attorney did not support the Conviction and Sentence against these two appellants. It was Mr Kirumbi’s submission that PW19 did not prove that he identified the first and second appellants whom he stated he saw them in the bush. That, the trial Court did not satisfy itself that there might have been a mistaken identity. That, PW19 did not give a detailed description of the people he alleged to have identified if they were really the two appellants. He referred this Court to the case of W AZIRIAM ANI VR [1980] TLR 250 and BUSHIRI AMIR VR [1992] TLR 95 in respect of visual identification. He also Charged that if the second accused at the trial was arrested together with the 2nd appellant then the latter also should have been acquitted since their circumstances of the case were similar. I agree with both parties that the evidence at the trial against the first and second appellant did not prove the case beyond reasonable doubt. These two were not found in possession of any stolen property and the prosecution did not prove that they are the people who were seen at Veyula area about 50 metres away in a taxi. The alleged two Sewing Machines that they were carrying in the taxi were not tendered in Court or that they were found in their Possession. PW19 spoke it all when he stated that he knew these two before as they were involved in Criminal activities. Seemingly, they were implicated with this incident since they were known before to the Police. However, PW19 at a latter stage stated that he did not know the second appellant very well hence the possibility that he identified him at Veyula area is not^here. PW19 testified further that the second appellant who was the third accused at the trial was arrested at the second accused’s home and Charged with a different offence. It is my opinion that the two appellants were charged with the present incident as an afterthought and the trial Court erred when it did not see that before it convicted them. For the foregoing, I find that he prosecution case against the 1st and 2nd appellant was not proved beyond reasonable doubts and I hereby allow their respective appeals. As for the third appellant, he submitted that the property, Parts of a wedding dress that he was found in Possession with, he had bought it from second hand clothes’ market as he was preparing to legalise his marriage. Mr Kirumbi Learned State Attorney also did not support the third appellant’s conviction and sentence. I agree with both parties • that the third appellant’s conviction was not justified. I agree with Mr Kirumbi Learned State Attorney when he submitted that the alleged parts of a wedding gown were not extinguishably identified by PW2 who said was the one who made it at the college. PW2 stated that, she could not distinguish Exhibit P.14, parts of a wedding gown put together with similar items. This means that Exhibit P14, Parts of wedding gown put together with similar items. This means tha,t Exhibit P14 could be made by any other person and be in possession of any other person apart from the complainant. In this case I agree with Mr Kirumbi that, the trial Court ought to have accepted the 3rd appellant’s defence. There is another piece of evidence against the third appellant. That, he is said to have sold three welding machines to PW6, Grayson Mtae. These machines were identified to be complainant’s stolen property. Just like Mr Kirumbi Learned State Attorney submitted, PW6 was also a suspect as he had stayed in Police lock­ up for days before he was released, therefore he was an accomplice and his evidence needed corroboration. The Court of Appeal Case of Pascal Kitigwa VR [1994] TLR 65, Mr Kirumbi cited is relevant in this Case. There is no independent evidence to corroborate PW6’S evidence against the third appellant. It was not proved that the third appellant sold the Machines to PW6 since firstly it was stated that the same were found in PW9’s place of business which is neighbouring the third appellant’s area of business. As rightly submitted by Mr Kirumbi, PW9’s evidence is an accomplice’s which needed corroboration as he was also a suspect. PW9’s evidence also is doubtful as he contradicted himself as regards the dates the third appellant brought the welding machines to his place of work between 24/12/2006, 4/1/2007 and 2/1/2007. Therefore, his credibility was doubtful. The Prosecution Case against the third appellant was also not proved beyond reasonable doubt and therefore I allow his appeal. The fourth appellant submitted that PW10 did not prove that he bought two Sewing Machines from him. That, since he was the one who was found in possession of the stolen property, he was the right person to have been Charged with the present offence. This submission is not different from what Mr Kirumbi Learned State Attorney had to say. I agree with both parties that PW10 was a suspect who was found in possession of stolen property. He was arrested and stayed in Police lock-up for three days before he was released. PW10 was an accomplice whose evidence ought to have been corroborated. PW11 could not independently corroborate PW10’s evidence since he had interest to save, that is, he was PW10’s friend. The prosecution did not state why they preferred to charge the fourth appellant and leave PW10 free since there was no proof that the latter bought the two Sewing Machines from the former. PW5’s evidence also is doubtful since he did not prove which car the fourth appellant had hired* for the purposes of carrying his co­ appellants. I also allow the fourth appellant’s appeal since the evidence against him did not prove the case beyond reasonable doubts. The firth appellant submitted that the Police did not testify the truth when they said that they searched his house in his absence and in the presence of his wife. That, the Police ought to have paraded his wife to prove their assertion because on the alleged date he was there at home and no Police came. Further that, no local area leader was summoned to witness the search in his home. Either PW13 did not prove that he bought the sewing Machines from him (the fifth appellant) As for PW18’S evidence, the fifth appellant submitted that the same was pure lie since he was not interrogated at the Police and have his cautioned statement taken. Mr Kirumbi Learned State Attorney supported the conviction and Sentence against the fifth appellant for reason that he was found in possession of stolen property. That, though the fifth appellant was not home during the search but his wife was there and other witnesses. That, Exhibit P9 that was found there was amply identified by the complainant as their stolen property. The fifth appellant was the dismissed employee of the complainant. Lastly, PW13 was found in possession of stolen property which he said had bought the same from the fifth appellant. On my part, I found that the first limb of evidence against the fifth appellant is that by PW13 who. stated that he bought a sewing machine from him. I find that this is an accomplice’s evidence since there was no proof that PW13 bought Machine from the fifth appellant. PW13 could have implicated the fifth appellant to save his skin since he was also a suspect. His evidence was not corroborated by an independent evidence. The other evidence against the fifth appellant is that, he was found in possession of properties which the complainant amply identified as stolen ones. I do not disagree that the complainant identified the Sewing Machine that is alleged to have been found in the fifth appellant’s home. What is doubtful to me is that when the alleged search was conducted the fifth appellant was not at home. It is said that, his wife was at home, but she was not called to testify. The trial court’s record shows that, the prosecution did not even want to follow legal procedure to secure the 5th appellant’s wife and her svidence. When the court denied the Prosecution to tender her statement since they had not complied with the law, that was the end Df it. They did not send her summons so that she could come to Court, whether or not she could testify against her husband, this was a question that could be considered once she came to court. She was not summoned. This creates doubt in relation to the search exercise. There is also Exhibit P6, a Certificate of Search by Police Officer that listed items that were alleged to have been found in the :ifth appellant’s home. It is indicated in the certificate that the wife of the fifth appellant one Matilda w/o Sylivester was present during the search. But then, this alleged wife of the fifth appellant was mentioned by PW13, during preliminary hearing of the Case and the fifth appellant himself that her name was Happy Kasinde. The Prosecution did not elaborate well about this contradiction. It was not proved that Matilda and Happy Kasinde are the same and one person. There was no local area leader to witness the search so as to eliminate any doubts as the ones under consideration. PW15 Jema Chitambi who stated that the ten cells leader was not around hence she stood in his place to search the fifth appellant’s home, testified that it was Julius Chimage’s house that were searched in the presence of his wife, Mama Jully only, since Julias Chimage was not home. This point me to one thing; that, the properties that are said to have been found in the fifth appellant’s house were actually found in possession of PW 13 along with the other Sewing Machine that was found at his place of work and which he stated that he bought it from the fifth appellant. PW14 had interest to save since he said was PW13’s cousin. His evidence could not be free. Hence could not corroborate PW13’S evidence. PW13 testified that after Police found a Sewing Machine at his place of work and after he implicated the fifth appellant, he led them to his (fifth appellant’s) home where they searched in his absence but in his wife’s presence. Why wouldn’t any one conclud that since Exhibit P6 is doubtful because even the dates are altered and serial number of the said ERICA typed Sewing Machine seem to have been added later, the properties that are alleged to have been found in the fifth appellant’s house were also found in the possession of the PW13? I hold that belief. But then, there is another evidence against the fifth appellant. This is his confession. Mr Kirumbi did not specifically refer to it. The fifth appellant submitted that he' did not make any statement at the Police. The trial Court admitted the fifth appellant’s cautioned statement despite of him objecting it. The fifth appellant objected before the trial court that he did not make that statement. According to the legal procedures, the trial court ought to have inquired into the admissibility of the appellant’s cautioned statement in evidence. The trial court magistrate did not inquire about the cautioned statement’s admissibility after it was objected to. He simply admitted it and promised to consider it along with other evidence. The cautioned statement greatly influenced the trial court magistrate to convict the fifth aopellant. Since the trial court did not follow legal procedure when it admitted the fifth appellant’s cautioned statement, the same ought not to have been used to convict the appellant since it was no good evidence. [See the case of Emmanuel Joseph @ Gigi Marwa Mwita VR, Criminal Appeal No. 57 of 2002, Court of Appeal of Tanzania, Mwanza Registry (Unreported)]. For the foregoing, I also find that the prosecution case against the fifth appellant was not proved beyond reasonable doubts and I hereby allow his appeal. • As for the sixth appellant, I agree .with Mr Wasonga Learned Advocate whose submission was seconded by Mr Kirumbi Learned State Attorney that he was convicted on the basis of the evidence that his co-accused mentioned him as his accomplice. PW19 testified that the third appellant mentioned the 6th appellant as his accomplice. However, the third appellant denied that allegations and there was no any statement that was tendered to prove the same. Even if there was such statement from the third appellant then it could be a co­ accused or eccomplice’s evidence which needs corroboration. There is no such corroboration against the 6th appellant. The Cases Mr Wasonga Learned Advocate cited of TUWAMOI V UGANDA [1967] EA Pg 54 and R V MELA MELANYI [1971] HCD NO. 398 are relevant in this respect. As rightly submitted by both counsels, the 6th appellant was not found in possession of any stolen property or identified at the scene. Therefore, there was no enough evidence to convict him. The allegations that he was expert in making keys was not enough proof that the 6th appellant committed the offence. The Prosecution did not prove how his expertise in making keys was involved in the commission of this offence. For the foregoing, Ihold that the Prosecution case against the 6th appellant was not provedbeyond reasonable doubt and I hereby allow his appeal. Lastly, the 7th appellant submitted that the prosecution did not prove in court that he confessed to the allegations. That, there was no evidence that implicated him with the offence since the complainants testified that there was no property which was stolen from the place he was guarding, as he was their watchman. Mr Kirumbi Learned State Attorney also rightly submitted that there is no evidence that proved that the 7th appellant committed this offence. I agree that his cautioned statement was admitted in court as evidence contrary to what the law requires. Since the 7th appellant objected his cautioned statement that he did not make it at all, the trial court magistrate ought to have inquired into its admissibility. This was not done and therefore the cautioned statement that was illegally admitted was not good evidence to have been used to convict the 7th appellant. My findings find Support in the Court of Appeal Case of Emanuel Joseph @ Giqi Marwa Mwita VR (Supra). Finally, j find that, though the alleged Armed Robbery incident was proved to have happened, but the evidence did not prove that any of the appellants committed the same. Consequent to the above, having been allowed the appellants’ appeals, I hereby quash the conviction against them and set aside the sentence of thirty (30) years imprisonment they have been serving.'All appellants are ordered to be released from custody unless otherwise lawfully held. It is so held. Appellant: All Present/Mr Wasonga Learned Advocate for 6thj appellant present. For Respondent: Absent. C/c: Mr Masinde.