gasper mdoe tarimo vs republic 2010 tzhc 228 5 february 2010

IN THE HIGH COURT OF TANZANIA AT TANGA CRIMINAL APPEAL NO.19 OF 2009 (Originating from Criminal Case No.114 of 2008 Of Handeni District Court) GASPER MDOE @ TARIMO.......................... APPELLANT VERSUS THE REPUBLIC........................................ RESPONDENT Date o f last order: 13/10/2009 Date o f Judgment: 5/OJ^ZOlO JUDGMENT Mussa, J. In the District court of Handeni, the appellant was arraigned for armed robbery, contrary to section 287 A of the penal code, chapter 16 of the laws. The particulars were that on or about the 26th day of-February, 2007 at Kwachanga village, Handeni District, the appellant stole a sum of shs.l00,000/= in cash; property of a certain Zuberi Yahaya @ Lugendo. It was further claimed that immediately before and after the incident of stealing and; by the use of a pistol, the appellant shot at the said Lugendo in order to obtain the monies so stolen. The appellant denied the accusation but; upon full enquiry, he was convicted and sentenced to thirty years imprisonment. He now appeals setting ten points of grievance in a petition of which I shall have time to reflect upon. In the meantime and; as is customary, I have to explore the factual background. •A The case for the prosecution was comprised of eight witnesses amongst whom, Lugendo, the alleged victim, featured as PW.l. That man happens to be a peasant - cum - shopowner domiciled at Kwachanga village. On the fateful day, around 3.00pm or so, Lugendo was running his shop business and; the way it was told, someone else, namely, Bakari Boga (PW.3), just had time to kill thereat. Soon after, there came two * visitors whom, to both Bakari and Lugendo, were complete strangers.lt is, perhaps, well worth mentioning, at this stage, that one of the visitors was holding, in his hands, a book, of which, was repeatedly referred in the proceedings below. To resume the narrative, those two bought some water, whereupon, they settled, at a bench thereabouts, to drink. Moments after they were finished, the twosome bought for themselves "soda" or, rather, some soft drinks and; again, resumed at the bench to drink. A while later, ^ither of the visitors rose up to enquire and; he wanted to know if, Indeed, the shopowner was called Lugendo. To this enquiry the shopowner was like suspicious, in the course of which he actually, lied that he was not Lugendo. Then, apparently, all of a sudden, the visitor pulled out a pistol, paradoxically, from the book; with which he fired a bullet that pierced unto Lugendo's ribs. Lugendo could see that the man was still aiming at him and; as he put it, in an effort to derail him, the assailant's second short landed on one of his thighs. Then, perhaps, a sixth sense told Lugendo that he should run clear of the scene and ; he barely managed before he collapsed unconscious, at a house in the neighbourhoods. To take a breather from the explosive account, obviously, it does not make good sense at all, to be told that a pistol was pulled from a book and; quite frankly, I was just as bewildered. Fortunately, I was opportuned to see the book of which was in the pile of prosecution exhibits. Viewed at a fleeting, glance, it is a harmless English - Deutsch dictionary, with its hard cover intact but; upon ones opening of it, whence the mischief comes into light. Some smart guy neatly dug a hole; top down the middle inside of the book and; indeed, sufficient enough to fit in a minuscule item such as a pistol. The hard cover and page edges, as I said, were left intact, so that, on the face of it, it is not an item worth raising ones' eye brows. That was, so to speak, not just a book, rather; it was, a book - cum-pistol-case. So much for the book-cum-pistol-case and; back to the scene, • Bakari, the other man at the shop, had long fled to a hideout at a grave yard and; I should suppose, soon after, the first shot was triggered-off. He braved to the scene, much later, when the two bandits were long gone but; according to him, they had taken along a sum of shs. 100,000/= made up the day's sales at the shop. At the trial, Lugendo would, nonetheless, insist that the stolen sum was, rather, shs. 150,000/= than the shs. 100,000/=; testified to by his colleague, Bakari. Be what as it may have been, in the wake of the pandemonium, Lugendo was taken to Hospital via the police who, promptly, initiated a bandit hunt. Nothing of material consequence was to come about in the immediate aftermath; up - until around 8.30 pm or 9.30 pm when there was an occurrence at Amani village. From there, it is Mwajuma Ally (Pw.5), who picks the tale. The lady, Mwajuma, is married to Habibu Bakari (PW.6), a polygamist, domiciled at the referred Amani village. To hear her side of the tale, around 8.30 pm or 9.30 pm, she was desirous of releasing herself at the hind of their residence. Soon enough, Mwajuma sighted a man, as it were, emerging from the bush. That man, it will come into picture, was none other than the appellant. The lady, then, enquired of the appellant as to his identities but; there was no response, whereupon, Mwajuma readied herself with an axe; to confront him. That was when the appellant said that he is enroute from Tanga to Handeni; that he encountered bandits on the way, from whom he escaped and; that he was in need of drinking water. The witness, Mwajuma, helped him with drinking water and; just as the appellant was about to go, Habibu, the husband, showed up. Upon being detailed of the predicament of their visitor; Habibu was not impressed at all and; even harboured a hunch that the guy (appellant) might not be pleasant. And so, Habibu lied to the appellant that he was up to putting himself at the risk of being attacked by wild animals, that is, if he (appellant) chose to go at that time of the night. Thus, Habibu advised the appellant to, rather, stay the night; to which, the latter agreed. Then, feigning that he was up to seeing a sick relative, Habibu walked out of his residence but; actually, destined to the police and intent upon unmasking his visitor. As to what was, in effect, the eventuality of his mission, details were a bit elusive. The. narrative "was, nonetheless, taken over by C6379, sergeant Gabinus (PW.8), who told of the manner in which the bandit hunt, referred to above, was ventured upon. As the police party passed by Sua village, four persons waved at the police vehicle, ostensibly, requesting for a lift. But, upon the vehicle being brought to a standstill, two of the lift seekers fled in disarray and; thus, it were only the remainder two who then joined the police company. Proceeding with their mission, it just happened that the police party had to stop again in response to a signal flashed by another man along the way. That man was, undoubtedly, Habibu and; keeping in mind his desired intent; he revealed to the law enforcers the presence of the appellant at his residence. Thus, it was said, the appellant was securely apprehended whilst asleep at the Habibu residence. According to the sergeant, besides him, was a pistol that had six rounds of ammunition; piled unto it. For some cause, of which, is hard for one to comprehend; Habibu took to a hideout some place, away from his residence and; he was not, then, witness to the appellants' apprehension. Quite apart and; again, for whatever cause, the prosecution, additionally , featured a quite different version pertaining to the appellants' arrest. This was told of Hashim Mohamed (Pw.4), a peasant resident of Sua village. Around 1.00 pm or so, as posted on record; on the morrow of the Lugendo incident, this man, apparently, with others; were enroute to Mnazi Mmoja village, intent upon visiting a sick brother. I should stop here to interject a remark that further down his testimony, Hashimu spoke of there being moonlight that night; so, it may be, this particular incident occurred 7.00pm and; perhaps, the presiding officer had in mind.the Swahili mode of reckoning time. Back to the narrative and; as they walked along, Hashimu and company could see two persons on their hind, destined towar^js.the same direction. Almost immediately, a motor vehicle was approaching and; if I understood the witness well, the two persons behind successfully signaled it to stop. Incidentally, it was a police vehicle and what followed was some fracas; though hardly elaborated by the witness. Suffice it to cull from his testimony, that a gun shot was heard and they were ordered to lie down. Then, they were all hurled aboard the motor vehicle and taken to a police station. The one and; quite remarkable of all details as comprised in Hashimu's telling, was his account that the appellant was amongst those apprehended in the course of this road-side melee. The thing is, given this account be true; the entire version about the appellant being arrested whilst asleep at Habibu's is contradicted and; for that matter, by its very mentor: The prosecution. And; yet, as will be seen, the version mix up was just amongst several of the disquieting aspects of the case for the prosecution. In the aftermath of the incident, it was said, the officer commanding criminal investigations, in the District; along with other policemen, attended the scene. Such was the telling of No. E.7017 constable Jerome (PW.7) but; from the tone of his testimony, he was not one 'arfiongst those who went there. And, neither did the prosecution feature any, as a witness, that is, amongst the police officers who attended the scene. Jerome would further claim that an empty cartridge was retrieved at the scene but; not being an attendant, his was a sheer hearsay claim. On account of the non-showing of the police officers who attended she scene; no wonder, there was a lot of confusion with, respect to where, for instance, the so-called book-cum-pistol-case was retrieved. Whilst sergeant Gabinus, the arresting officer, claimed that it was shown to him by a police driver before they set out for the mission; Jerome, obviously, given to a sweeping reflex, contradicted him with this:- On arresting him they found the said book and inside it there was a pistol. To add salt to the wound, Hashimu, who was privy to the road-side version, was even more confused in the course of being cross-examined by the appellant- When at the police you were found with a book. I don't know if you had the book on your arrest. You had something in your hands but I cannot say it was the book at issue. That thing can be the book as that is what the police said you had in your possession. As is patently clear from the tone of the judgment; the learned trial Magistrate took it for granted that the so-called book was retrieved at the scene of the occurrence. The truth is that no one attending to the scene in the aftermath was called as a witness and; at best, the evidence- on the issue is a confusing lot. That aside, against the foregoing backdrop, the retrieved pistol; the book; six rounds of ammo and; an empty cartridge were adduced into evidence as, respectively, PI to P4. evidence was further to the effect that the pistol and empty cartridge were taken to a firearms expert for testing; results of which were comprised in a report admitted as P6. Additionally, two empty cartridges; used by the expert for testing, were adduced as P5. Speaking of the exhibits, it is only the book and empty cartridges which were availed for this court's viewing. Upon enquiry, the presiding officer accounted by letter filed unto record; that the report of the firearm's expert is comprised in the record of the case. I must admit, upon a diligent search, the report is neither here nor there. What is more, the pistol and 6 rounds of ammo were reportedly, returned to the police; onwards to their lawful owner. The thing is, what was all the hurry about? T " ’/• Enquiring further into the features of the case for the prosecution; at the trial, was when, for the first time and; upon a dock identification, Lugendo and Bakari implicated the appellant as being one amongst the two assailants. More particularly, both laid claims that it, was the appellant who actually, was privy to the shootings. Nonetheless, Lugendo conceded that he could not recall the attire the appellant was putting on and; neither did- Bakari attribute to any. But, both went so far as to identify exhibit PI as being the attack weapon, incidentally, without assigning any distinctive mark unto it; if there was. Furthermore, going by the testimony of Lugendo more closely, a police identification parade was conducted in which Bakari alone was featured as a witness. As for the outcome or particular details of this parade, the prosecution felt such was an exclusive business of theirs. So much for an exploration of the case for prosecution and; now, the appellants' defence. His account was that, on that fateful day, he was enroute from Dar es Salaam to Handeni; aboard a bus called Swabra. There was a breakdown at Amani village, whereupon, all passengers were held in wait for mechanics. Soon after, the passengers, him inclusive, were raided by a band of bandits; in the wake of which, the appellant sought refuge at a * villagers7 , hut in the neighbourhoods. There, he was welcomed by his hosts but; momentarily, the male host left upon a claim that he was up to attending a sick patient. No sooner, he was arrested in a sudden police swoop. He was searched, dispossessed of belongings and; subjected to untold beatings by his captors. Yet, nothing of material significance was found in his person. Then, came a moment in time and it was right there, when one of the policemen held out a pistol; pronouncing that such was what they were looking for. Thus, against this background the appellant had the current accusation at his door; of which, he claims, was fabricated upon. I should suppose, his version slightly resembles Habibu's telling, only, he refuted beinglfound in possession of a pistol. On the whole of the evidence, the learned trial Magistrate was, rather, impressed by the version as told by the prosecution witnesses. More particularly, he singled and testimonies Lugendo and Bakari as telling against the appellant. The witnesses, it was further urged, had ample opportunity to identify the appellant much as the happening was in broad day light and on account of the fact that the assailants availed themselves for a considerable length of time. It was further felt that it was of no consequence that an id parade was not conducted much as the witnesses had ample opportunity to identify their assailants. In support thereof, a decision of this court was referred as comprised in Kichele Mrange VR (1983) TLR 158. Only, the trial court non-directed itself on the detail, as told by Lugendo, to the effect that, after all, there was an id parade in which Bakari was involved. Thus, in the upshot and; as intimated above, a conviction was had. The petition is lengthy and upon a variety of points but, the way I conceive this matter, it turns on the question of the reliability of the prosecution witnesses as well as sufficiency of evidence of visual identification. Mr. Safari for the Republic fully supported the conviction; submitting, in effect, that the appellant was thoroughly implicated upon two fronts. There was, he said, first, evidence of his being seen at the swcene but; quite apart, the circumstancial evidence of his being found with the gun was, pointedly, telling against the appellant. Assuming, I should say this, that it was fully established that the appellant was unmistakenly identified as amongst the assailants at the scene; that he was, indeed, found whilst in possession of the adduced pistol; then, such would have been sufficient enough ground, with which to found a conviction. Unfortunately, from where the prosecution stands, the going was not quite neat on the ground and; as hinted upon, it lent itself to contradicting versions, in particular, with respect to the place and manner of the appellants' apprehension. To express it point-blank, the prosecution did not accord this matter the seriousness it deserved and; rather, took a casual, clumsy, approach. There is, indeed, no cause to doubt Lugendo's account to the effect that he was viciously attacked by gun shots but; the real question at issue is whether or not the appellant was at the centre of the heinous act. Granted; both Lugendo and Bakari were positive in their claim of seeing the appellant but; it is noteworthy that theirs was a dock identification, as against a person, previously completely unknown to them. Much, worse, there was no description of whatever kind accompanying the alleged identification claim. The learned trial Magistrate downplayed the need there was to conduct an id parade and; in this regard, where, as here, the alleged assailant was, obviously, a stranger to the identifying witnesses; one would expect, as it is, indeed, desirable and in the prosecution's interest; for the police, to arrange and conduct an id parade at the level of investigations. That was not the case in the situation at hand and; if any parade was conducted, as appeared to be a suggestion by Lugendo; jts outcome was, deliberately, made obscure. To this there is a price in the form of an adverse inference, of which I am constrained to take; to the effect that, if anything, the outcome of the parade was unfavourable to the prosecution. That said, it will be unsafe to solely rely upon dock identification claims by Lugendo and Bakari. The appellant was otherwise sought to be connected via the allegation that he was found in possession of a pistol which, in turn, is said to have been the one that fired the shots at Lugendo. The only strand of evidence t&at could have, supposedly, connected the pistol with V* the firing at the scene was the empty cartridge, allegedly, found at the scene and the subsequent positive report by the firearms expert. I was not opportuned to see the report but; even so, what evidence was there to establish that the empty cartridge was retrieved at the scene? As fervently demonstrated, there was not an iota of evidence by anybody attending the scene in the aftermath of the incident. All there is, upon record, is.some hearsay stuff that the empty cartridge was retrieved at the scene. And so, much as it was not fully established that the empty cartridge at issue was found at the scene, it is just as doubtfut to connect the pistol with the firing at the scene. And, finally, we have two contradicting versions, referred to above, by Habibu and Hashim with respect to the manner and place of the appellants' apprehension. This court now finds itself on the horns of a dilemma and it is this: Which of the two versions should be accepted? Should it be the one told-the Habibu to the effect that the appellant was * * ^ »• arrested whilst asleep a t . tiis home or; rather, the other version, attributable to Hashim to the effect that the appellant was picked by the police at a roadside. Both versions were told of the prosecution and; to say the least, faced with a situation such as the present, a court cannot enter into an arena involving a reconciliation of conflicting prosecution versions. Where the case for the prosecution admits to irreconcilliable versions touching upon material aspects of the evidence; the entire case is thrown into doubt to the benefit of the person accused. To this end, in all the circumstances of this case, I have strong suspicion that the appellant might have been the stuntman behind the alleged crime but; it is suspicion of which, no matter how strong; must remain suspicion. Thus, I have, most reluctantly, come to the conclusion that this appeal must succeed. The appellant is to be released from custody forthwith; that is, unless held there for some other lawful cause. It is so ordered. I , 28/ 01/ 2010 Date: 05/02/2010 Coram: Mussa, J. Appellant: Present Respondent: Miss Naiman Judgment delivered in the presence of the parties.