20111128 TZHC Dodoma

-i IN THE HIGH COURT OF TANZANIA 0 AT DODOMA (DC) CRIMINAL APPEAL NO. 106 OF 2011 (Original Criminal Case No. 131/2005 of Kondoa District Court at Kondoa) MZAMILO IDD MLOKOKO & ANOTHER ....................... APPELLANTS Versus THE REPUBLIC •••••••••••••••••••••••••••••••••••••••••••••••••••••• RESPONDENT JUDGMENT 14/11/2011 & 25/11/2011. KWARIKO, l: The appellants herein had originally been arraigned before the trial court with one count of Armed Robbery contrary to section 285 and 286 of the Penal Code Cap. 16 of the Laws Revised Edition 2002. It was alleged by the prosecution that the two and another had jointly and together on the 16 th day of May, 2005 at 05.00 am at Mnarani street within Kondoa District and Region of Dodoma stolen cash money Tshs. 120,000/= from one ABUBAKARI 5/0 MOHAMED and used a bush knife (sime) in order to obtain and retain the said property. The two and another, then third accused had denied the charge and therefore their full trial. 1 During the trial the prosecution brought in court three O witnesses to prove their case and their evidence can be recapitulated as follows: On the alleged date and time the complainant ABUBAKARI MOHAMED, PW1 was going to Kondoa Bus Stand where he had intended to travel to Dar es Salaam. On the way to the Bus Stand at an alley (uchochoro) between the farms of BAKARI RASHID IKAJI, PW2 and one MLEWA he was waylaid by three bandits. He was grabbed and held down and made him face down and was searched from his near pocket where Tshs. 120,000/= was taken. PW1 testified that he identified the appellants herein and one John the then 3 rd accused who jumped bail as his assailants. That, while the 2 nd appellant had a bush knife the 1st appellant had a club (rungu) and that it was the 2 nd appellant who had sat on his chest and threatened him not to raise alarms. Nevertheless, the complainant raised alarms where PW2 heard and peeped through the window where he threatened the bandits that he could fire his gun. It was at that point that PW1 was let free. These two witnesses said had identified the appellants and another through electric light and that they knew them very well before. Moreover the 1st appellant is PW1 's nephew, the 2 nd appellant came from Tumbelo village while the then 3rd accused was the son of the then policeman. Despite of the robbery incident the complainant continued with his journey to Dar es Salaam for his hides business, and while there he telephoned his younger brother SELEMANI 2 l ! MOHAMED MUMBA, PW3 and informed him about the robbery 0 incident and how he identified the appellants and another. He asked PW3 to trace the appellants. When PW3 started looking for the assailants he met the then 3 rd accused who informed him that it was the appellants herein who were involved in the robbery. However, it was until 19/5/2005 when PW1 returned from his business trip when he reported to police and his assailants were looked for and arrested in varying days. PW1 was issued with a PF3 (Exhibit PE1) and went to hospital for treatment. His bus tickets were also admitted in court as Exhibit PE2. In his defence the 1st appellant testified that he had come from Dar es Salaam on 10/5/2005 to Kondoa to see his parents. That, he found his parents having a rent dispute with PW1 who had rented a room in their house. That, he intervened in the dispute and PW1 reported the matter to police where he was implicated with the present charge. He denied the allegations. On the other hand the 2 nd appellant denied the allegations and testified that after PW1, complained that he had destroyed his hides he was beaten and his Ths. 78,000/= taken away. He reported the matter to police where one PC Kandoro refused to file his complaint instead he opened this charge against him. 3 "' At the end of the trial the court found that the appellants 0 being village mates to the witnesses were sufficiently identified at the scene through electric tube light. Thus, they were found guilty and sentenced to thirty (30) years imprisonment and twelve (12) strokes of the cane each. An order of compensation at the tune of Tshs. 150,000/= to the complainant was also made. Having been dissatisfied with the trial court's decision the appellants filed this appeal each with own grounds of appeal totaling twelve but the same raise about six grounds of appeal as follows: 1. That, the visual identification evidence was not water tight against them. 2. That, the trial court erred in law and in fact to convict the appellants on a doubtful prosecution evidence. 3. That, the trial court erred to act on the PF3 w hich was illegally admitted. 4. That, the trial court erred in law and in fact to act on the evidence from PWl, PW2 and PW3 who were family members. 4 5. That, the trial court erred in law to act on the evidence of PW3 which was hearsay and needed corroboration. 6. That, the trial court's judgment contravened a mandatory provision of the law under section 312 (2) of the Criminal Procedure Act Cap. 20 Revised Edition 2002. During the hearing of the appeal at first the appellants reserved their comments until they heard what the respondent, Republic had to say about their appeal. Then the Republic which was represented by Ms. Nsana, learned State Attorney Respondent by supporting the appellants' conviction and sentence and had the following reasons for her stance: Firstly, Ms. Nsana contended that identification of the appellants at the scene was water tight as the witnesses, PW1 and PW2 had ample time to observe and identify the appellants. That, the witnesses described the weapons the appellants had, in that, while the 1st appellant had a club the 2 nd appellant had a bush knife. Also, the witnesses said electric light enabled them to identify the appellants and more so when PW2 said the light was of 60 volts. Further, the witnesses said the distance between them and the appellants was short which enabled positive identification. And there was no any contradiction between PW1 and PW2 in relation to the position of the appellants during the robbery. Ms. Nsana learned State Attorney contended further that the 5 e-7 .. I .. witnesses gave enough description of the thugs. However, 0 she was quick to add that since the witnesses knew the appellants before there was no need of their description. She referred this court in this respect to the case of .JUMA SHABANI .JUMA VR, Criminal Appeal No. 168/2004, Court of Appeal of Tanzania at Tabora {unreported) Secondly, Ms. Nsana argued that there is no law which forbid family members from testifying on issues they have knowledge about, and what matters is their credibility and truthfulness. Thus, the complaint that PW1, PW2 and PW3 are witnesses from same family is baseless and it was prayed the same to be dismissed. In the third complaint Ms. Nsana submitted that section 312 (2) of the Criminal Procedure Act had been complied with by the trial court thus the appellants' complaint has no merits at all since the trial court's judgment reads that, "the appellants had been convicted as charged" which was sufficient compliance with the cited law. Fourthly, it was contended by Ms. Nsana that despite of the fact that the investigator of the case did not testify but the available evidence was enough to ground conviction against the appellant. And that it was the discretion of the prosecution to 6 call witnesses whom they found could prove the charge and this 0 is what happened in this case. The other ground of appeal by the appellant is in relation to the complaint's PF3. Ms. Nsana submitted that the complainant explained why he delayed to take the PF3 for treatment when he said that he went first to attend his business in Dar es Salaam. And this delay was not enough to make PWl's evidence suspect. However, Ms. Nsana was quick to concede that the PF3 was received in court in contravention of the mandatory provision of the law under section 240 (3) of the Criminal Procedure Act. But then, even though the PF3 is expunged from the record, the available evidence is sufficient to convict the appellants. Lastly, Ms. Nsana submitted in relation to the evidence of PW3 that the same did not require any corroboration since it only supported the evidence by PWl and PW2. In his rejoinder thereof the 1st appellant submitted that PWl's conduct created doubt in relation to this incident since he delayed to report the same though he had available opportunity to do so. Further, the absence of the police investigator as a witness of this case adversely impacted on the prosecution case. 7 nd As for the 2 appellant, his rejoinder was to the effect that ·0 . PWl lied in respect of this incident in that if he raised alarms then other people apart from his relatives could have responded to the scene. And that no local area leader was called to testify in respect of this incident. Also, if PWl was injured during this incident he could not have embarked in the bus with blood over his body. The 2 nd appellant further complained that PW2 did not explain what steps he took after he witnessed the alleged .incident. Also, the absence of Police investigator as a witness created doubt in this respect. And lastly the second appellant wondered why PW3 did not inform the police after he had received a phone call from PWl in respect to the alleged robbery. Having been heard the foregoing submissions and the grounds of appeal the issue that poses for decision is whether this appeal has merits. The first ground of appeal relates to the identification of the appellants at the scene. While the appellants have maintained that the conditions for favourable visual identification were not met in this case, Ms. Nsana learned State Attorney strongly contended that the evidence in relation to the identification of the appellants was water tight. 8 This court has considered the evidence of PW1 in respect 0 of his identification of the appellants and found that after he was invaded the thugs held him down and faced him down and threatened him not to raise alarms where he was robbed. Thus, PW1 did not explain at what point in time he was able to observe the thugs and identify them since at the material time it was still dark. This court believes that the complainant did not have sufficient time to observe his attackers and identify them. The complainant might have seen the said weapons with the attackers since the same were directed to him for the purpose of threatening him but this was different when it comes to the issue of identifying the attackers in the said circumstances. This is so because it needed PW1 to observe the attackers' faces to identify them and since he said he was made to face down soon after he was attacked the possibility that he identified any of the attackers was very slim. Further, PWl only said that there was electric light at the scene that enabled him to identify the attackers. He did not specify the kind of electric light that was there since there are tubes and bulbs that are used as to give out electric light. All these give out varying intensities of light and thus varying visibilities by the people around them. Thus, in the absence of description of the type of electric light on the part of PW1, his 9 evidence that the same helped him to identify his attackers ·O· becomes weak. Also, PWl did not describe the size of the area that was illuminated by the said electric light. This is so because he testified that he was invaded at the farms belonging to PW2 and one MLEWA. This means that the area was vast which needed strong light for one to identify anything. Coupled with that concern PWl did not say where the electric light had come for the same to give him enough light for easy of identification. Was the light from the street electric poles or the houses around there? This was not explained hence one is left to speculate on these imposing issues. And also, PWl did not describe the appearance of the attackers whom he said had identified to be the appellants herein and another. Though Ms. Nsana has cited a superior court's decision which said that if a witness knew his assailant before his description is immaterial but in this case where the source of light which enabled PWl to identify his attackers was not explained; the only evidence that he knew his attackers before becomes very weak. This is coupled with the fact that he was not in the position to observe the attackers appearance after he was invaded as I explained earlier. Therefore, it was not enough to just say that PWl knew the appellants before. He 10 may have mistakenly thought they were the ones who attacked 0 him. As for PW2, I agree with the appellants that he did not explain how he was able to identify the thugs to be the appellants through the window. He did not mention the distance his window was and the appellants and did not explain their appearance. Also, PW2's evidence in relation of the kind of electric light was not clear. This is so because at first PW2 said he identified the appellants through electric tube light but when he was cross-examined he said it was a 60 Volt bulb which helped him to identify the thugs as the appellants and another. This contradiction could not be said that there was any light which enabled PW2 to identify PWl's attackers. Even though PW2 said he knew the appellants before but in the absence of light at night this fact cannot hold any water. It is thus concluded that, even though a thug is one's closest relative or friend but if the two meet in the dark identification cannot be said to be positive. Thus, the conditions for favourable identification by PW1 and PW2 were not met and thus the criterion given in the celebrated case of WAZIRI AMANI VR [1980] TLR 250 were not met in this case. The 1st ground is thus answered in the positive. 11 In the second ground of appeal is the complaint that the 0 trial court erred to convict the appellants on a doubtful prosecution evidence. Several points of complaints have been raised in that respect. This includes the fact that the complainant delayed to report the incident to the police. Responding to this Ms. Nsana contended that PWl gave an explanation that he first travel to Dar es Salaam to attend his business before he reported the robbery incident. This court agrees with the appellants that the complainant's conduct after the alleged robbery leaves a lot to be desired. How could PWl have travelled to Dar es Salaam with cut wounds and bruises on his arm, knee and chest. If he had cut wounds, he definitely was bleeding. Then how could he have travelled in that state? PWl did not explain this clear doubt. As rightly submitted by the appellants PW1 could have reported to the police at the bus stand or even the bus attendants. Most importantly, PWl could not have travelled in that state while he said he had identified his attackers. He must have gone to the police to report them and leave the law to take its own course. If PWl was able to report the matter to his younger brother, PW3, then, what prevented him from reporting the same to the police or to local area leaders where the incident occurred? And what steps did PW3 take after this revelation by PWl were not explained. He did not do anything lawfully. As he said he started his own investigation concerning the appellants. 12 ·: This was not proper. He ought to have reported to the law 0 enforcement agencies. PW2 also did nothing after this incident. Another doubt complained by the appellants is the absence of Police Investigator. Although Ms. Nsana learned State Attorney was emphatic that the prosecution was better placed to present witnesses they found enough to prove the charge, but in this case police investigator was important witness. This is due to the already explained doubt in this case. Police ought to have come to explain how and when PW1 came to report the incident and whether he mentioned the appellants to be his identified assailants. Also the police could have explained how they believed PWl 's story and what the appellants said after their arrest. Thus, the absence of police investigator adversely impacted on the prosecution case. As for absence of the weapons of the offence as complained by the appellants, I am of the view that since there is no evidence which say that any weapons were seized at the scene then one cannot say that any weapon ought to have been tendered in court as exhibit. This complaint is baseless and it is dismissed. Therefore, in the totality of the foregoing the prosecution evidence was doubtful and shows that this incident did not happen as the witnesses had alleged. The second ground of appeal is answered in the positive. 13 rd As for the 3 ground of appeal this court agrees with both 0 parties that the PF3 was admitted in court contrary to the mandatory provision of the law. Section 240 (3) of the Criminal Procedure Act Cap 20 Revised Edition 2002 obliges the trial magistrate to inform an accused person of his right to have a medical officer who authored the PF3 to be summoned for cross-examination. This was not done and had this law been complied with, then the PF3's author could have explained the nature of PWl's injuries which have been disputed. Thus, the PF3 (exhibit PEl) is incompetent before the court and it is hereby expunged from the record. In the fourth ground of appeal the appellants complained about the evidence of prosecution as being that of family members and thus doubtful. Ms. Nsana contended that what matters in the witnesses is their credibility no matter how they are related since there is no law which forbid family members from testifying. This court agrees with what Ms. Nsana has submitted that what matters in witnesses is their credibility. After all in this case there is no suggestion that PW2 was related to the complainant and PW3. However, since I have said that these witnesses' evidence was doubtful the same needed corroboration which in this case is lacking. Thus, this ground fails. 14 The fifth ground of appeal relates to the complaint that 0 PW3's evidence was hearsay hence needed corroboration. Ms. Nsana was emphatic that PW3's evidence only supported the evidence of PWl and PW2. I agree that since PW3 only testified on what PW1 told him, his evidence could not be said to require corroboration. This ground also fails. In the sixth ground of appeal the appellants complained about the trial court's judgment not complying with section 312 (2) of the Criminal Procedure Act Cap. 20 Revised Edition 2002. On the other hand Ms. Nsana was emphantic that since the trial Magistrate's judgment said that the appellants hand been convicted as charged that the cited law had been complied with. This court does not agree with Ms. Nsana learned Counsel. This is so because after the trial court found that the prosecution evidence was heavier against the appellants it noted that the appellants were guilty as charged. This is not what the cited law directs. The trial court did enter conviction in respect of the appellants. The cited law says; "In the case of the conviction the judgment shall specify the offence of which, and the section of the Penal Code or other law under which, the accused person is convicted and the punishment to which he is sentenced". 15 Thus, failure to enter conviction in respect of the appellants the l I 0 trial court committed a fatal irregularity which vitiated the judgment. Had there been enough evidence to warrant conviction against the appellants I could have remitted the original file to the trial court to comply with the law. Thence, for what I have held in the preceding grounds of appeal that directive would not be appropriate here. Not only the foregoing, although not raised by the parties, but this court has found that the trial court did not at all in its judgment consider the appellants respective defence. It only very shortly summarized the defence evidence but when it came to analysing the evidence it was the prosecution evidence only that was considered and given heavier weight. This was contrary to a principle of fair hearing where both parties to the case are supposed to be heard and their evidence be considered before a decision is reached. Qi.Jr United Republic of Tanzania Constitution also recognizes this principle when it says under Article 13 (6) (a) thus; "When the rights and duties of any person are being determined by the court or any other agency, that person shall be entitled to a fair hearing and to the right of appeal or other legal remedy against the decision of the court or the other agency concerned" 16 . A right to a fair hearing as provided herein above includes 0 one's. defence to be considered. Thus, failure by the trial court to consider the appellants' defence vitiated the judgment. All having been said, it is hereby found that the prosecution case against the appellants was not proved beyond reasonable doubt. This appeal is thus allowed, the appellants' guilty verdict quashed, sentences of imprisonment and order of compensation against them are set aside. The appellants are thus ordered to be released from prison unless their continued incarceration is in relation to other lawful cause. (M. A. ARIKO) JUDGE 28/11/2011 Court: Right of Appeal fully explained. JUDGE 28/11/2011 17 .• AT DODOMA. 28/11/2011 1 st Appellant: Present. 2 nd Appellant: Present. For Respondent: Mr. Nchimbi Senior State Attorney. C/c: Ms. Komba. 18