crispin exavery othman malenga vs republic 2009 tzhc 142 12 march 2009

IN THE HIGH COURT OF TANZANIA AT MTWARA CRIMINAL APPEAL NO. 15 OF 2008 ORIGINAL NAC H IN'GWE A DISTRICT COURT CRIMINAL CASE NO. 2 2 0 F 2007 HB^ore^DrB^!dungurcr^ksq: RM CRISPIN EXAVERY OTHMAN @ M ALENG A ....... APPELLANT VERSUS THE REPUB LIC ............. ..................................... RESPONDENT Date of Last Order - 27/11/2008 Date of Judgment - 17/02/2009 JUDGMENT MIPAWA, J. In the District Court of Nachingwea seven accused persons were charged with Armed Robbery c/s 287 of the Penal Code Cap. 16 [R.E 2002] as amended by Act no.4 of 2004, their names appears on ■;lhe charge as follows: Crispin Exavery Othman 1st accused, Taji Hassan Lilawe 2nd accused, Issa Rashidi Mzee 3rd accused, Saidi Rajabu 4th accused, Saidi Issa 5th accused, Lazaro Seko 6th accused and Dominic Michael Robert 7th accused. I will in this judgment nomenclature them as the 1st, 2nd, 3rd, 4th, 5th, 6th and 7th accused person. At the close of the prosecution case the learned Magistrate made a ruling that acquitted the 7th, 6th and 2nd accused persons under the provisions of section 230 of the CPA. On the other side of the coin the court ruled that the 1i[, 3m, 4Ih, and 5th accused persons 1 had a case to answer. It was contended by the prosecution and controverted by the accused persons that on the material date robbed one KAWINA MAITA PreciaasJtemsTvaTued at 2,500,000/= and that they used five arm to Kawina Maita in order to steal the.properties. The witnesses who were called to prove the prosecution case in the lower court were [about] seven of them. Kawina Maita who was the Principal witness and the victim testified as PW.1 that on the material date i.e 23/12/2006 whey they were coming from Kiegei Mining area going to Nachingwea with other six people aboard a motor vehicle, on the way they were blocked with a big log and when they stopped in order to remove it so that the motor vehicle could pass three masked guys appeared and fired gun shots in the air while commanding PW.1 and his fellow to lie down thus Wote mlale chini mpo chini ya ulinzi...” Nevertheless they managed to escape in the bush and when they came back PW.1 ^ound his bag in which there/were clothes, gold chains and 10,000/= valued at 2,500,000/= stolen, the motor vehicle was ravished with gun shots. He PW.1 did not identify anybody. Another witness of the prosecution who testified was PW.2 Amina Jalia who told the court that on 21/12/2006 at about 5.00 pm three guys came at her home and requested for some water to drink. She gave them water and three sugar canes. This witness said further that the three guys had parcels and one of them had a jacket in wnicn ne seemed to have wrapped a gun while the other had a 2 biack_bag. In her opinion the guys were not miners because they did .not.have the utensils needed for mining" like shovels e.t.c. PW.2 ;'ieinumbered the 3rd accused who has a heaied.scar on her face and she pointed him in the court room. Her testimony was confirmed by --RW:^^ a l^ l^ A th S ^ i l ^the: h~us b a M - w f t n e s ^ P i f e e d that the first accused had asked for some water to drink and later was joined by others who all of them including the first accused had “pangas” while the 3rd accused had a jacket with a gun. PW.4 Mabrouk Sabini who was driving the motor vehicle that carried PW.1 and others, testified more or less the same as PW.1 that when they stopped in order to remove the log which was placed on the road they heard five [gun shots] and quickly two guys were seen in front of their motor vehicle while the third person was aside the road and a gun held in his hands. They escaped in the bushes after being ordered to lay down on the ground. After sometime they emerged from the bushes and found that the bag of PW.1 in which there were some clothes and properties missing and the bandits her damaged the * ,iotor vehicle with gun shots. The bandits had by then escaped and were nowhere to be seen. PW.5 E.8751 D/Sergent Athman who investigated the case visited the scene and found six ammunition left and nine cartridges he also drew the sketchmap of the scene. On 13/1/2007 PW.5 got information that some guys have been found unlawfully in possession a firearm and one of them was shot dead. The gun which was retrieved SMG 8526 had 26 ammunitions in the magazine hence he suspected them to have committed the armed robbery of 21/12/2006 3 since the cartridges and ammunition found in the event of 12/12/2006 belong to the SMG weapon... however, he sent the same to the* forensic bureau for more-p m o f ‘ The report from the forensic bureau - which came later stated that the gun found on 13/1/2007 was the one -use t f f l n^the court exhibits-' PI,PII,PIII and PIV the above exhibits i.e cartridges sketch map, forensic bureau report and the ammunitions. PW.6 who interrogated the first accused person at Tunduru Police Station Inspector Njibu, toid the court that the first accused had told him that they were given the said gun by one Super Bazaar and he also mentioned his fellows who had escaped at the scene as James Ndomondo Said Issa [sideboy] Issa RasViidi and Petro [white]. PW.6 therefore went to the 2nd accused [super Bazaar] and arrested him. He also managed to arrest others who were mentioned by the first accused person i.e 3rd - 7th accused persons. PW.7 Inspector Abdallah who also went at the scene and interrogated PW.3 and others and narrated to him how the robbers had demanded water to drink from their home and that he wrote the caution statement of the first accused after he had explained to him his rights. According to PW.7 the first accused in his statement alleged that the gun was given to them by one Super Bazaar but they did not found the 2nd accused [super Bazaar] with any gun. PW.7 tendered in court also exhibit P5 and PG being nine cartridges found at the scene and the three ammunition. 4 In his defence---the first accused told the court that on 21/12/2006 w herrthe 'offence was committed in Nachingw¥a“ he was at home in Tunduru where he had arrived from Songea on the same date and that he "did not go anywhere^ He alleged that the Police-had _______ •>- ----——_- -- --------------- ------- — ~r.~; -- : arrested "hlnTlh'TohhecHorT-'with rarrothercase ’and not tlne p r i l t n f one. He further said that he was identified by five witnesses, but only two came to testify to wit, PW.2 and PW.3. the first accused called his father as a witness DW,2 Exavier Doglas Asman who confirmed that the first accused who is his son was at home on the 21/12/2006 and he had just arrived at home in Tunduru from Songea. The third accused person DW.3 Issa Rashidi told the court in his defence that he was arrested any the-Police who asked him if he knew the following persons, Super Bazaar, side boy and white where he replied that he doesn’t know the guys, on 19/2/2007 the third accused was brought to court. On the identification parade he was identified by six witnesses but only two came to testify in court. He alleged that the evidence of PW.2 was fabricated. On his part the fourth accused person Said Rajabu Njenje DW.4 testified that he was arrested at Tunduru and told that he is charged with breaking and stealing in one of the villages in Tunduru, later he was taken to Nachingwea and denied the present charge in court at Nachingwea. He said that he was not identified by any witness on 3/4/2007 at the identification parade neither no one had testified aoainst him. The last accused to testify was DW.5 who told the court in hjs $efence that he was arrested at Tunduru and when they seaiched at his home nothing was found. He was sent to Police Station where he was told 5 that his fate would be known in Nachingwea. At Nachingwea he was charged with the present"offence but when the police conducted the identification parade he was “not identified by any witness. Further"’ that no witness told the court that hejyas seen [DWJ5.1 at the scene. The learned State Attorney who appeared for the Republic Mr. Mkude did not support the conviction of the appellant. He submitted ' hat there were actually no witnesses who saw the Robbers because the evidence of PW.1 andPW.4 was that the people who invaded them had put masks on their faces and were not identified and that other witnesses were just told. The learned State attorney further toid the court that the identification parade which wasy conducted after a couple of days had passed was despised by the trial court as “nothing of any value”. Because an identification parade need to take place the soonest. Even if it could had been of value PW.2 and PW.3 did not identify the appellant. The learned State Attorney concluded that the court based its'conviction solely on the opinion of a forensic oureau expert who opined that the gun [short gun] which was found in the possession of the appellant was the one which was used in the armed robbery of 21/12/2006. The court after going through the evidence said that there was no enough evidence except the report of an expert. The expert himself was not called to testify but only PW.5 purported to be testifying on the behalf of the expert. Th^ pnneU^nt in hi^ oet'tion of asserts fhers '-c '-' ~o witness who testified before the lower court that he was seen committing the crime and that the learned magistrate over looked hhe 6 point of law and fact that by admitting the mere~expert report without requiring him to appear before the courThence for convicting the Appellant solely on expert report without any corroboration of an inde pendent witnesses^was a fatal erroc. - - - . - __ I have duly heard the appellant himself when he was prosecuting his appeal and I respectfully agree with the appellant as v vveil as the learned State Attorney that in fact there was no single witness who saw the appellant at the scene of crime because the only witnesses who could have unveiled the issue of seeing the appellant committing the crime were PW.1 and PW.4. Nevertheless it was difficult for these witnesses to know the assailants or robbers according to them “ ... they had put masks on their faces..” so it was not possible to identify them. The offence of armed Robbery is a serious offence which requires that an identification of accused by witnesses should be watertight, and left without any clouds of doubt. The learned Resident Magistrate in his judgment heavily relied on the report from the Forensic Bureau exhibit P4. He stated as follows: ... Having arrested the 1st accused in the event of 13/1/2007 with the... gun with those picked cartridges and the gun he sent them to the Forensic bureau at Dar es Salaam to examine... the report (P4) stated that it is the same gun which used (sic) to fire the cartridges found at the scene... at the event of 13/1/2007 it is the 1st accused who was arrested... this case is not based on identification at the scene of crime but on the doctrine of recent possession of tho r:rearm.. ! hereby convict me 1st accused as charged .. 7 With respect to the learned Resident Magistrate relying heavily' as sueJion.the expert opinion report which by and. large is not binding ta4hojgottft-without any other material evidenced© fill the gaps” by corroboration-or otherwise is very dangerous regand being had the rs e ii^~ ^jjs !s (H iie -g ffe n ^ § B -w h ic h the appellant-was ^ c i n g ^ T h i ^ trial court could have refleshed its mind on the caution statement of the appellant where it was alleged by the prosecution that the appellant consented to have participated in the robbery. PW.7 said; ...... I interrogated Chrispin who said [that] they went to Robb Mahita at Mbwemkulu Chrispin was wounded... I asked him if he is willing to record caution statement, he agreed... I then recorded his [caution] statement Chrispin said the gun was given to him by one Super Bazaar..... However as it was pointed rightly by the learned State Attorney when he was submitting, that the statement which the prosecution wanted fo rely was rejected by the court and hence it was noi admitted was a thorn. Apart from eye witness identification, evidence which was • /eking and greatly missing if to put it in that way, it is surprisingly therefore for the court to rely on the expert opinion report (P4) without even calling that expert to testify and be cross-examined, besides, without any other independent evidence, it was unsafe to convict the appellant basing on the expert report (P4) opinion without any corroborative piece of material evidence see for example the case of Omari Ahmed v.Republic [1983] TLR.52 the Court of Appeal held that; 8 .... There must be some evidence connecting an accused with-a 'theft [or an offence in which the acetisedns'charged] other than the testimony of an expert Who is uncertain [undelined in blackest.mine! "Worse and even a great error, the learned Magistrate did not even see the expert himself. It was the duty of the prosecution to bring the expert in court to testify-and be cross examined and the trial court could have seen the importance of- this a p r io ri anG make orders. Therefore it was unsafe for the trial court to convict the appellant basing on uncorroborated expert opinion report [exhibit P4], There must be some evidence connecting an accused with the offence other than an expert testimony or report see also R.v. Raphael Alphonse [1967] HCD 197. In the event and on the foregoing this appeal’ is allowed conviction quashed and sentence imposed upon the appellant is set aside. Appellant to be released from prison unless otherwise lawfully held in connection with other matters. I.S. Judge 12/3/2009 9 Delivered today in the presence of Mr J y e ^ ^ ^ t a t e ^ A t t o n ^ y • V- ■;.i" -i I.S. Mipawa Judge 12/ 3/2009 Date: 12/3/2009' Coram: Hon. i.S.Mipawa, J. The Republic: Mr. S. Hyera, State Attorney Appellant: Present B/C: Namanga, RMA Court: Judgment delivered today in the presence of both parties.' o ^ HT !.S. Mipavl/a Judge 12/3/2009 10