20111123 TZHC Dodoma

- IN THE HIGH COURT OF TANZANIA AT DODOMA 0 (DC) CRIMINAL APPEAL NO. 86 OF 2011 (APPELLATE JURISDICTION) ..... (Original Criminal Case No. 490 of 2009 of'Dodoma "' District Court at Dodoma) ~. D.P .P ............................................... APPELLANT VERSUS 1. FAJA MASHAKA . 2~ MUSSA SIMBA@ KUFAKUNOGA ..... ~RESPONDENTS JUDGMENT F • 24/10/2012 ;& 2~/11 /2012 KWARIKO,J. The respondents herein were jointly and to9ether arraigned before the district court of Dodoma with the offence of Armed Robbery c/s 285 and 287 A of the Penal Code Cap:. 16 Vol. l of the Laws as amended by Act No. 4 of 2004. It was: alleged by the prosecution that the respondents had jointly and together on the l 5th day of October, 2009 at about 23.00 hours bf:'Area "A" within the Municipality and region of Dodoma stolen 9ne mobile phone . ,., made Vodafone 810 valued at Tshs. 300,000/= the property of one E. \ . 9027 DC SILVANUS and cut him with machete (Panga) on his left a'rm in order to obtain and retain the said'property. The ltwo had denied the charge hence a full trial had bee_n cor:-iducted~ :_. During the trial the prosecution evidence revealed that the complainant No~ E 9027 DC SILVANUS PW2 had been invaded by two ~hugs on his way home. The two had a machete which they used_ ·i·o assauit him. They robbed him a mohilk phone make Vodafone and1run aw~y. However, PW2 identifiet~:fone of the thugs .. ,,,. as the 1st respondent herein whom he knew befbrf; as he used to attend rehabilitation clinic at the police station beinb a drug addict. . ' . The identificafion was aided by electric fluorescent light from two houses around'fhe scene. PW2 raised alarms and pElople C.@f;p.~ who :• :f c::::::•_.·. took him to police and hospital for treatment. The fdllowing day PW2 went to voda shop'i Where his phone · number w~s investigated and it was discovered that the number . ·had called some numbers soon after the robbery. f,. Those numbers ' -. we-re traced to"HALIMA'HAMISI SAID, PW3 and MARl~M HAMISI, PW4. ,!, On further investigation the l st respondent ,was t arrested and -~· admitted the allegations and led the police to the p~ace where they ·.l .\ had sold the stolen phone. The phone was traced to one HASSAN MUYAGA HASSAN, PWl. This phone was admitted irf covrt as exhibit A. 2 ·upon interrogation.by No. D 6457 , D/Sgt JOS~PHAT, PWS, the 1st·}· 'i. respondent is said to have admitted the allegd_tidns. His caution statement was recorded and the same though he:: objected if but was admitted as exhibit 'M'. At the end of the prosecution case the court found that a case . ( l'. , .had not been made out against the 2nd respohoent hence was ,, ...'I ; _; •.. .! 1 acquitted in terms of section 230 of the Criminbi· Procedure Act. i" Cap .20 R.E 2002. In hi'S: defence the 1st respondent herein tE:;stified that he was ··sound osl·eep in his parents' home at the materia(nfght- and thus the· . prosecution evidence was pure lies. He did not call 9ny witness. ; 'i \ : In its j't}dgment the trial <:::ourt found that the prosecution case i . . . . .,,.,. . . which was· purely circumstantial did not (prove the. charge against the l st respondent. He was thus found not guiltV 'llind accordingly _.• {~ acquitted. The Republic was not satisfied with the trial 1court's decision hence filed this appeal upon the following four grouAds of appeal: 1. That the Hon. Trial Court Magistrate erreyi ·fn. both law and .' \..~A facts in acquitting the respondents 'i}J1erein without 3 - ·- - - - ' appreciating the prosecution side's eviden'ce and exhibits adduced in court. .t, ,,, 2. The trial court magistrate failed to give reley,9rit weight upon·:} the first accused's admission and investigatory work by the defectives as sufficient proof that it was him (1st accused) who committed the alleged robbery. 3. The trio/. court magistrate erroneously reached to. that decision after misleading and misdirecting .... ·', himself by -. Vi( wrongly referring to cases that were irrelevant and in applicable in the matter before him. 4. The trial court magistrate erred in law and foct by directing '": ./" ~· himself into admitting the OWJ 's defen9.e of alibi and disregarding the PW2 's evidence of identification of OWJ at •:' ~:k' ;Jt/ the s'cene of Crime. '-,:~ I ·-.- This appeal was heord in the absence of the respondents since efforts to trace their whereabouts proved futile.'.· fhus, during the hearing of the appeal the appellant was represen_fed by Mr. Katuli ~ i{ .. ~, learned State Attorney who argued three grotJnas: of appeal after y~ ·-:1-~. he decided to abandon the fourth ground of app~al. I will refer to - 't~t Mr. Katuli' s submission in the course of this decision. -Jhus the issue to decide here is whether this appeal has merits. 4 In relation to the 1st ground of appeal this cotlr!: does not agree with Mr. Katuli learned State Attorney that the i st :respondent was sufficiently identified at the scene by PW2. As it:dicated by Mr. Katuli, PW2 said he identified the 1st respondent by 11ectric light that came from two· nearby houses at the scene. Fir~-tly, PW2 did not explain what was the distance from the said two houses and the . . scene. And he did not explain th~ intensity of lightJvhich ca~e out 1'y.f ·,·r · from the said electric fluorescent tubes. This is so because electric •• _, .c. ·, ! ,-:_'[ fluorescent tube differ/vary in light intensities and the size_ of the f ~- fluorescent tubes vary. The area which was illuminated by the light j, t.£ was also not explained. That was the position taken·: by the Court of _:,\ AppeOI of Tanzania in the case of HATIBU MBARA V R, Criminal 1 n:r:::: .. ,·. , ~ }.~1:>p~c:ll Nct··202 of 2007, at Dodoma, [unreported] :~bere the case of :••,.'..'ri•;_!•, •f+~, ~~~ -• •• • /~;t-~ ?f •-." r:•\•~--.,.~A•';'•<'f'• \ •\;,(~1\,c):.~• ,• i' • .). ' • • :••/;• •, • ,'•"f,::• that Cour.t of ISSA s/o'MGARA SHUKA V R, CnmihcJ'l<~ppeal'No. 370f<: 2005 was cited with approval, it was thus said; 1: <::· ·.: f'lt is common knowledge that lamps iJ~ they electric bulbs, fluorescent tubes, .. h0r~cane lamps, wick lamps, lanterns etc, give biS:} light ' :_ ';~ with changing intensities.... hence" the overriding need to give in sufficient details the intensity of the light and size of the area illuminated". ; '',~ Also, there is another aspect of PW2's iden'.fifying evidence ;, '{i-~ which say that he knew the 1st respondent before. Again the Court 5 of Appeal in the dted HATIBU MBA'RA'S case .(su~xa) which cited with approval the case of KULWA s/o MAKWAJAPE AND TWO i::-:"t OTHERS, V R, Criminal Appeal No. 35 of 2005 (unrep9rted) had this to '. it .•. ~ ·r'·~ .t-·.1 say; -~, "The fact thqt - evidence . of prior . - ~- knowledge . of _..; , the suspects is relevant factor that facilitates the identification of suspects. Buf this ~hould not be considered in isolation· from. '"·', the pre-~equisite requirement that conditions t9r the proper identification of suspecf~;)r are . ~ favourable" [Emphasis supplied}. .· .. ·,.;:- . I/ 'Ji -·~, • Therefore, in the case at hand even though PW2 said he knew the 1st respondent before but since the conditioris ·~or identification were not fovourable he could not have positi~el~ identified him. Thus, I do rjot a'gree with Mr.K'atuli that the conditio~s for favourable identification in this case met the criterion set out in the case of WAZIRI AMANI VR [1980] T. L. R 250. And the evldence by PW 1, HASSAN MUYAGA}HASSAN did not r H prove that the alleged phone that was pawned t$y:fthe respon_dents . ii was the same as the one which was robbed from lhe complainant. < This is so because PW 1 did not mention the type of phone the respondents handed over to him whereas the complainant's phone was said to be Vodafone make. And also PWl di<Zl not prove that the respondents had pawned any phone to him·8f1 No supportive '. \,,._-! '¾·,.· \1 evidence was brought to that effect. Not even ;+~Wl identified in court the alleged stolen phone to tally with the one ~e had allegedly received from the respondents. Finally, I find that _the 1st ground of appeal without merits and it is rejected. In the second ground of appeal I disagre~ ,with the learned . ~ n State ·Attorney that the 1st respondent had C~'nfessed ~to the allegations. As, to the alleged recovery of the alleg'ed stolen' phone 1 at PWl 's place, I have already explained how th~ same did not prove that the alleged phone w-as the one subje~t matter of this }•. v> ::. · ; ' .. ccfseT· · Secondly; the 1st respondent's confession_{ in the c::aution ~.;:: t::,_; ,; · · · 'state~n\eht eXhH:9il~1'M} was received in c::qurt contra&<·tb\tb~dow.~·J.This,/ . .. ", . i "'.:·~~:~;' .;.•,.,'./t~·t'.~-}~\\;i'/:;\~-,'.: is so because when the prosecution introduced the statement the 1st ' ' ?;n respondent retracted it. However, the trial court did not make any l inquiry to ascertain the admissibility of the stqtement but went '\ . tE ahead and. admitted it in evidence, although in the end it was not ;~ 'I, :i'i ',, used to convict. Therefore, this was not. good evidence and the - !· i court erroneously admitted it. It is thus expunged frorh the evidence. . :,· 'I ' I } r-i/\ .•: )~i As in relation to the evidence of PW3 and P'v\~4 I find that the same has no substance at all. This is so becaus~, ~hl)e PW2 and PW6 said the complainant's phone number had beein Jraced to these ,' two ladies, but throughout the trial nothing had b·e.in mentioned to ,; . q be the complainant's phone number. PW2' s phot?'epumber ,, had not been mentioned and it was not mentioned hd'v'T the same was , . r·! ·'j,,:, linked to PW3 and PW 4' s phones. The ladies' phone numbers had ·~-~ ; '. ~ 7 \ .,,,: - , not been ·revealed and no any electronic evidence which was brought from any phone company" and the so called cyber crime office to show that PW2's phone number had be4n traced to the . ·, ladies' phones soon after the robbery. And alth<Su;gh PW3 said th_e •;},:~·. respondents had phoned her but she did _not isay which phone . -:.1,. number was used. PW3 also said that when the respondents came at her place they ·had mobile phone Nokia type· 0hich is diff~rent to the stolen one, Vodafone. : '/ l ff •I ·7 ·r- Th us, there is no material evidence that the ~ st;.:,·,, frespondent had given anyone a phone which matched P_W2's all~g~d stolen phone. ·:c~ ;-,,p,w2 als<Y.diG:l•:'n·of,sufficiently describe his stolen mdbile_ptlpne·:· He. .. . ' .' . --; .. · •,/)iiii(:t<'.\::,;'.,;:;_·,··· r-,i~•- 0nly said-~t:tir@same ·Y./os·Vodafone make but no serial n'@;fu9E3,}¥/r or dri~i\.;;;,< 'I• ___ ,, ..... . "i· other identity had been mentioned. To coin it al_l t're case against the 1st respondent was not proved to the standard,ntquired in law. -~ -! • ~ 1- Lastly! this court agrees with the arqpellant that the trial court applied case authorities which are distinguishabl~ -from the facts in the present case. As rightly submitted· by Mr. Katulf, the issue in the present case was identification of the respondenfs at the scene. Whereas in the cited case of KISINZA RICHARp V Rf'. [1989) T.L.R_ 131 the issue which was considered related to circurr(lst9ntial evidence. Thus, this ground of appeal succeeds. ~ ),~ ;,._ r.i A i .j., . In the fine however, Mr. Katuli learned State Attorney submitted that they had no objection with the 2nd respond~~t's acquittal as 8 • there was no evidence which directly touched him. I share that view. . . Consequently, this appeal is partly allowed as indicated above. It is ordered accordingly. · : ~ '\/f . · , '·I/// . . ' /.J ' • .... ~_1 •• - > (M.A. IKO) JUDGE 23/11/2011 ' .... ,:,, JUdgrnent' "delivered in court today in the presence c)'.f.'.-Ms>"'''" . ~. ,. :: ·:: ,-:.:,:=· :,.:.'. :. Magesa learned State Attorney for the Appelldnt and in the absence of the respondents. Ms. Komba court clerk present . .... - ~--,--.. -·:".) (M.A. IKO) JUDGE 23/11/2011 Court: Right of Appeal fully explained. 9 i i