julius michael malika another vs republic 2010 tzhc 280 26 february 2010

IN THE HIGH COURT OF TANZANIA AT TANGA MISC.CRIMINAL APPEAL N0.37 OF 2008 1. JULIUS MICHAEL @ MALIKA I 2. IBRAHIM ALLY J ............... APPELLANTS VERSUS THE REPUBLIC........................................... RESPONDENT Date of last order: 07.12.09 Date of Judgment: 26.02.2010 JUDGMENT Mussa, J. In the District court of Handeni, the appellants were arraigned for armed robbery, contrary to section 287 of the Penal code, chapter 16 of the laws. The particulars on the charge alleged that on the 1st day of August 2007, at Kideleko village, Handeni District; did steal an assortment of carpentry, masonry and workshop ware; totally valued at shs. 1,383,900/=; property of Mkonje Primary School. It was further claimed that immediately before such stealing, the appellants assaulted a security guard, namely, Ahmad Mtausi; by the use of a bush knife,as it were, in order to obtain and retain the properties so stolen. The appellants denied the charge and; so the prosecution featured five witnesses in support thereof. At the close of the enquiry, they were both convicted and sentenced to thirty years imprisonment. Both are aggrieved upon a joint petition comprised of eight points of grievance. At the hearing, the appellants who were unrepresented, fully adopted their petition. The Republic was represented by Miss Naiman who was supportive of the conviction and sentence. Ahead of a consideration of the rival contentions, I should explore the factual background . From the prosecution version, it was commonplace that within the premises of Mkonje Primary school, is situate a workshop unto where an assortment of masonry, carpentry and sewing equipment is stored. On the alleged date, the’ school premises were securely guarded, or so, it was presumed, by the already named Ahmad Mtausi (PW2). Around 2.00 am, this man had the misfortune of having four bandits for visitors; as it turned out, univitedly storming the school premises. The intruders proceeded straight into working on Ahmad, I mean, physically assaulting him on his head, face and shoulders. I should hasten to interject a remark here;that the security guard did not quite elaborate on whatever implements were used in the attack and; neither did he particularize the weapons held by the assailants. Back to his telling, he was subsequently thrown to the ground with one of the intruders thumping his leg against his body; so as, he could not dare move. Thus, whilst that one kept vigil of the security guard, the remainder bandits worked open the workshop door; from where they took the itemized tools and; off they disappeared. A good deal, later when all dust was clear, that is, around 6.00 am or so, Ahmad was opportuned to detail the occurrence to school authorities, apparently, as well as the police. To them, it was said, he promptly implicated the appellants as being amongst the bandits. He had, then, additionally, named a certain Aweso Salugazwa; to have been inclusive but; for some obscure reason, the prosecution was not anxious about bringing this man to book. But, infortunately, according to his version, he failed to identify the fourth bandit. Hearing him further telling about those he identified, they were, apparently, well known to him for he implicated them by name and; in addition, as he put it, at the material time, there was moonlight; of which aided him all through. Now that the identity of some of the suspects were an open secret, it did not take long before a police party had a swoop at the residence of the first appellant; incidentally, situate at that same Kideleko village. Therein, the appellant 2 was plentiful, though asleep, whereupon; in the course of a thorough search, two harmers, three trowels (vijiko vya uashi), one spirit level (pima maji), one saw, two hacksaws, a pair of iron sheet scissors, a pair » of pliers and a tape measure; were retrieved from the residence. There were, in addition, a bunch of keys, twenty in number and a heavy iron rod; also found in that same residence. All these, were seized upon and posted in a certificate of search (exhibit PEI) but; of these, one of the harmers, having a red/green handle, a red/black handle a towel and the heavy iron rod; were the only items adduced into evidence. Perhaps, it is my assumption, the ’ other items were somewhat unrelated; in that they had no reference to the items stolen at the occurrence. A fortification is patently apparent from the testimony of the investigation officer, namely, constable Jerome (PW.l) who related that the masonry and carpentry teachers could only identify, respectively, the adduced trowel and, hammer. Rather, again, for some obscure cause, the carpentry teacher was the only one featured for testimony and; by the way, his account was nightmarish to the prosecution. Upon being cross-examined, the teacher, vnamely, Simon Mcharo (PW.5)., actually, stated that the adduced hammer resembles the one stole nfrom the school workshop. Nonetheless, further down his testimony; during re-examination, the witness was, rather, withdrawn with this:- The hammer before the court is o f red handle while the ones at my school are o fpink colour. As regards the second appellant, he was apprehended at a separate room, within the residence, in the course of the same police swoop. Thereat, nothing of significance was retrieved except for the second appellant being found; as was told, menacingly drunk. I should, nevertheless, suppose; his drunkenness had nothing to do with the subject of the enquiry. As will be seen, it was a status of which, quite 3 unfortunately, heavily weighed in the mind of the presiding officer. As to what this mis-direction amotfhted to; will be my later preoccupation. For the moment, suffice it to say that upon apprehension, both appellants were taken to the police. Thereat, Jerome would further claim; Ahmad accusingly insinuated their involvement in their presence; to which, the appellants gave no response. In reply to prosecution storm, as laid at their respective doors; whereas, the first appellant was minded to sworn testimony; the second appellant felt he should rather exercise a rare means of defence there was to his option. And; that was, to remain silent. As for the first appellant who spoke, he was focused in his denial of the prosecution accusation. Around 6.00 pm or so, on the 31st July, 2007 he had left home for a nearby Pombe shop; drinking there up until 9.00pm when he retired in bed and; that is, for the rest of the night. Nothing of significance came about till when he was to host unpleasant visitors, much later, in the afternoon of next day. At his door step were police officers who, immediately, got into searching his house and; indeed, he did not quite dispute that all the items referred to by the prosecution were retrieved from his residence. Only, he said, they are properties of his and; if I understood him well, he was once in the masonry trade. On the whole of the evidence, the learned trial Magistrate was impressed by the version as told by the prosecution witnesses. To say the least, the trial court took every prosecution detail for granted; unfortunately, without recourse to a proper evaluation and; must worse, occasionally, shifting the burden of proof to place it squarely on the appellant's shoulders. For one, the good- Magistrate availed herself to a . finding; sweeping in the extreme;, to the effect that properties retrieved at the residence of the first appellant were, in fact, owned by the school. As I shall demonstrate within a short run, the evidence was miles away from that finding. Going on the footing that the retrieved properties were, 4 actually, owned and stolen from the school; the presiding officer went further to express of what she expected from the first appellant; of which, was not forthcoming 1st accused claimed that the building tools found in his possession are his properties and that he no longer deals with building works. He didn't summon any witness to confirm that 1st accused had once been dealing with building works and as such, he was in a position to own such tools. 1st accused failed to inform court as to how properties belonging to Mkanje primary school were recovered in his house while he was not a teacher nor a school committees member. Again, I shall have time to demonstrate as to how the presiding officer made a travesty of the doctrine of recent possession; in the course of which, she unfairly squared the burden on the first appellant's shoulders. For another, with respect to the second appellant, there was this:- ...... Z** accused was there, he was totally drunk. One is to ask, why was he there taking into consideration that he was not a tenant in that he was not a tenant in that house and that he owns his house. This shows that they were together. As hinted upon, the second appellant's state of drunkenness, was at the height of an enquiry for no cause at all. What is more, if I may just as well ask: What was the Magistrate's concern with respect to the second appellant being at the residence all about? Is it not that every person is entitled to freedom of movement? And; by the way, the law is not as draconian as to impute criminality upon one simply because he/she happens to be in bad company, without more. 5 That aside and; coming now to the petition of appeal, it is predicated on a variety of grievances ranging from the conviction being based upon insufficient evidence of visual identification by a single witness; the unreliability of the security guard as a witness; insufficient identification of school properties; contradicting testimonies from prosecution witnesses and; finally, to the trial court unfairly shifting the burden and requiring upon the appellants to prove their innocence. Miss Naiman, for her part, laid more emphasis on the evidence of the security guard, of whom, she said, was telling against both appellants. Learned stated attorney had reference to Ahmad's, alleged, visual identification of the appellants aided by moonlight; of which, she further urged, was sufficient, more so, as the appellants were well known to the witness. As regards the properties retrieved at the first appellants residence; learned state attorney was just as positive that the same were clearly school properties. Addressing the points of contention, I should single out, for a start, the issue as to the sufficiency of the evidence pertaining to visual identification. The same is comprised in the testimony of Ahmad who happened to confront the intruders single handedly on the night of the occurrence. As it turned out, moonlight was the only available identification aid and; what, immediately, crops out is the weight to be attached on such identification. Allied to it is a fact, equally of real moment; to the effect that the incident occurred under horrifying circumstances to which allowance must be had. When all is said and done, even given the fact that the security guard may have been bent upon nothing but the truth; yet, there is nothing to guarantee that his vision was unmistaken. If anything, going by the cumulative reality that the occurrence admitted to a terrifying atmosphere, as well as that it occurred at a time when there only was moonlight in aid for the witness; chances are that Ahmad might, have been mistaken. To add to this and; 6 as hinted upon,neither of the properties retrieved at the residence of the first appellant had any reference to those stolen. In the result, the conviction cannot be sustained and is, accordingly, quashed. . Both appellants are to be released from custody forthwith; unless lawfully held there for some other cause. It is saordered. 25/02/2010 \ 2(5/ 02/2010 Mussa, J. Appellants:- Both present For the respondent: Mr. Gelani, state attorney Judgment delivered in the presence of the parties. 26/02/2010 7