20110815 TZHC Mbeya

IN THE HIGH COURT OF TANZANIA AT MBEYA DC. CRIMINAL APPEAL NO.12 OF 2010 (Originating from 2009 the District Court of Mbozi Criminal Appeal Case No.16 of 2009) JUMA S/O SACKSON @ SHIDA ......... APPELLANT VERSUS THE REPUBLIC .......................... RESPONDENT JUDGMENT 14.6.2011 & 15.8.2011. Before Minilla B. M., J.: On the night of 21.01.2009 between 22.15 and 22.20 hours, a group of robbej:ers, armed with a gun and several local types of weapons struck at Dreams Grocery at Maporomoko area, Tunduma Location, Mbozi District in the Region of Mbeya. At gun point, they robbed the persons who were at that grocery various properties including one mobile phone make Nokia valued T.shs.100,000/, cash T.shs.35,000/= the property of one Shaban s/o Anyitike; another mobile phone make Nokia valued at T.shs.150,000/ and cash T.shs.415,000/= the property of Lazaro sb Simchimba. After the police were contacted, they rushed to the scene of crime and gathered information from the persons who were around. They - were shown the direction which the bandits followed. They boarded their motor vehicle and drove towards that direction. On arrival at a certain place where there was a dispensary, they saw three persons walking away. They stopped the motor vehicle near where those persons were. The trio started running away. PW1 and PW5 gave a chase. As lucky would have it, they managed to apprehend one of the three persons who happens to be the appellant in this case, Juma Sackson @ Shida Sackson. They interrogated and searched him. They found him in possession of a panga which he had hidden in the long coat that he was putting on, a wallet which had stuffed, among other things, various documents which belonged to one person known as Shaban s/o Anyitike. On being interrogated how he came into possession of someone else's documents, the appellant told them that he was entrusted that property by the owner. They took him to police station for further investigation. On arrival at Police Station, amongst the persons they saw was Shaban s/o Anyitike who told them that he was amongst the victim of the said robbery. They learnt that he was actually the owner of the several documents which were found in appellaiit's possession, hence their conclusion that the appellant was amongst the robberers. The appellant was instrumental to the arrest of Isambi Mboya who was the 5th accused before the trial court, while the 3rd accused one Baraka Kayange was arrested by the Police of Zambia at Nakonde. The first accused Nicholaus Arnbakisye and the 4 " accused Alex John were arrested later. These persons were subsequently charged with two counts of armed robbery as it were. \Vhile all his colleagues were acquitted for lack of 7 sufficient evidence, he was found guilty in respect of both counts, convicted and sentenced to a concurrent term of thirty years' imprisonment. The appeal is against the whole of the trial court's judgment and the sentence thereof. The appellant is appearing in person and is undefended while the Republic is being represented by learned state attorney Mulisa who has hastened to inform this court that he supports conviction and sentence. The memorandum of appeal has raised eight (8) grounds, the first of which allege that the trial court magistrate erred in law in convicting him relying on the evidence of PW1 and PW5 and exhibits P1 - P8 without corroboration from other independent witnesses. Corroboration is amongst the requirements of law, the purpose of which is to confirm the accuracy of the evidence already given in court in material particular with a view of strengthening or rather making it more certain. Contrary to what the appellant says, learned state attorney Mulisa has submitted that the evidence of P\T1 and PW5 in our present case was corroborated by that of PW2 and PW3. He has requested this court to dismiss this ground. As already pointed out, upon being arrested the appellant was interrogated and searched. He was found in possession of some prOJ)erties, including a wallet which was found to have various items includin g documents which belonged to PW2 Shabani Anyitike. - According to PWJ and PW5, amongst the items found in the said wallet was T.shs.35,000/, a kwacha worth of 1500, a voting identity card in the name of Shabani Anyitike together with two passport size photographs of the later, among other items. They also said that they found him with a panga which was hidden in the inside pocked of his long coat. This piece of evidence was corroborated by PW2, Shabani Anyitike who told the trial court that the appellant was amongst the five bandits who attacked and robbed them at the said grocery on that day. While his colleague was armed with a gun through which he fired a bullet which injured him after hitting the wall, he said, the appellant was armed with a panga with which he cut PW3 Lazaro Ibrahim Simchimba in the head. He identified the wallet which PWJ and PW5 recovered from the appellant as amongst his lroPelties which were stolen from him in the said robbery. He also testified that his voting identity card and two passport size photographs were also amongst the properties which were stolen from him. He denied to have entrusted those documents to the appellant. The evidence of PWJ and PW5 was further corroborated by that of PW3 Lazaro s/o Simchimba. Like PW2, this witness testified that it was the appellant who cut him with a panga in the head, and that the gun was handled by the first accused before the trial court one Nicholaus Ambakisye who fired a bullet which injured PW2 after hitting the wall. Another corroborative piece of evidence came from PW4 Agness dlo Nzunda, a business woman who was also present at the grocery at the time the bandits invaded the said grocery. This witness told the trial court that while the first accused before the trial court was holding a firearm, the appellant was armed with a panga with which he cut PW3 in the head. Besides the evidence of PW2, PW3 and PW4, corroboration of the evidence of PW1 and P'W5 is also found on the properties of PW2 which were recovered from the appellant himself, among which were the voting identity card and two pass port size photographs (Exhibits P1) for which he failed to give plausible explanation how he came of them. In the case of Rainadliani Ayub v. Republic, Criminal Appeal No. 122 of 2001, CAT, Tanga Registry (unreported) it was stated that where a person is found in possession of recently stolen piopeity and fails to give plausible explanation as to how he came to possess the same, the court is entitled to imply that he is the thief or guilty receiver. Since the appellant in the present case did not give any account in court as to how he came of those properties, and because the allegation that it was entrusted to him by PW2 was refuted, this court is satisfied that the appellant lied to PW1 and PW5. In the circumstances, the appellant's contention that the evidence of PW1 and PW5 was not corroborated lacks merits and is dismissed. 5 The appellant's complaint in the second ground of appeal is about the prosecution's failure to produce in court the cautioned statement he allegedly offered to the police. On this again, I agree with learned state attorney Mulisa that it is devoid of merits. The reason is clear that the prosecution was not duty bound to produce the said document. There is no law requiring them to do so. Had the appellant wished to use that document as evidence in his defence, if at all, he ought to have moved the prosecution to produce same as defence exhibit. I believe the trial court could have assisted him on this. In that he did not do so, he cannot be heard to complain at this stage. In the third ground, the appellant says the trial court magistrate erred in convicting him relying on weak evidence of identification, which again has been forcefully challenged by learned state attorney Mr. Mulisa who has submitted that it is devoid of merits. He has referred this court to the case of Waziri Amani v. Republic [1980] T.L.R. 250. Once again, I share his views. One of the aspects of identification spelt out in the case of Waziri Amani v. Republic is disclosure of source of light which may have enabled the witness or witnesses to identify the robbers and time it could have taken them to observe their attackers. In the present case, P'W2 and PW3 told the trial court that there was electricity light at the scene of crime, a fact which they said, enabled them identify the robberers properl)T. PW2's such evidence is on page 11, second paragraph from the top. In answering a question asked of him by the first accused before the trial court one Nicholaus Ambakisye in cross examination, he said "I know the person who invaded me because at the time when you invaded me in the grocery there was electricity light as you came in that grocery as customer (sic)." On the other hand, PW3 said so at page 12 second paragraph from the bottom in answer to the question asked by the same person, the said Nicholaus Ambakisye during cross examination. PW3 said that "I knew you by facial appearance as there was electricity light as you came there as customer." On the basis of such evidence I am convinced, as did learned state attorney Mulisa, that the appellant was correctly identified. In the fourth ground, the appellant complains of failure by the police to organize an identification parade as contemplated by section 60 (1) of the Criminal Procedure Act. Admittedly, section 60 (1) of that Act provides for identification parade. It states that any police officer in charge of a police station or any police officer investigating an offence may hold an identification parade for the purpose of ascertaining whether a witness can identify a person suspected of the commission of an offence. It is clear however, that the section is not mandatory. This was upon the police to decide. Since they felt that the condition at the scene of crime afforded their witnesses favorable identification, they were not duty bound to organize the said identification parade. 7 While agreeing with the defence in Jandika Makwarija v. Republic, Criminal Appeal No 176 of 1991, CAT, Dodoma Registry (unreported), that if identification parade wa conducted it would have given more light on the question of identification of the appellants by the witnesses, that court went on to say that it did not agree with the defence argument that failure to organize such a parade rendered the witness unworthy of credit. The rationale to this seems to have been provided by that court in the earlier case of Denis Nyakonda v. Republic, Criminal Appeal No. 159 of 1990, CAT, Mwanza Registry (unreported) in which it said:- "... [It] is needful to underscore the point that identification parade proceedings are basically testing or investigatory and extra - judicial in nature. The outcome of such a parade is by itself of no independent probative value. At the highest it can only corroborate the evidence given by the identifying witness in court under s. 166 of TEA 67 or contradict the statement of witness in court under s. 164 of TEA 67. If a witness is not called there is thus nothing for introducing the parade proceedings into evidence, let alone considering them." It is also relevant to point out, as was stated in Kichele Mrange v Republic [1983[T.L.R. 158, that identification parade is not necessary when there is light to enable the witness identify the accused as was the case in the present case. For reasons I have attempted to give, this ground is similarly not well grounded. U.] [] The appellant alleges in the fifth ground of appeal that there were a lot of unresolved contradictions. Unfortunately, the appellant did not give hints or point out the alleged contradictions. At any rate, on going through the proceedings I have not come across any serious contradictions in the evidence of the prosecution witnesses worth a consideration. The material part of the evidence of PWJ and PW5 was how they came of the appellant, the interrogation with him and the properties they recovered from which he failed to give reasonable explanation how he caine of them. Also, the material evidence of PW2 and PW3 was that the appellant was armed with a panga with which he assault PW3. That means the witnesses told the truth. It is a reality however, that minor discrepancies by any particular witness or among witnesses cannot be avoided in any particular case as was expressed by the court in Diksou Elia Nsamba Shapwata & Another v. Republic, Criminal Appeal No. 92 of 2007, Court of Appeal (T) Mbeya Registry (unreported). It was stated in that case that:- "In evaluating discrepancies, contradictions and omissions, it is undesirable for a court to pick out sentences and consider them in isolation from the rest of the statements. The court has to decide whether the discrepancies and contradictions are only minor or whether they go to the root of the matter". 64, In that case, their Lordships considered the meaning of "discrepancies in a case". They relied on learned author's Sarkar, the Law of Evidence, 16thi edition, 2007, who on page 48 said that:- "Normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as such and horror at the time of the occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party ' s case, material discrepancies do." Having said that there was no any material discrepancy or serious contradictions, this ground is similarly demerit and fails. In the sixth ground, the appellant alleges that the evidence against him was faked, particularly so when it is considered that they delayed to charge him. Learned state attorney Mulisa has submitted, and I agree with him, that there were no clues to show that the prosecution ever fabricated their evidence. This is particularly so when we consider the evidence which we have said was cogent, credible and reliable. In the premises, the allegation is unfounded. 10 To follow suit is his allegation in the 8" ground that the case against him was not proven beyond doubt. Of course, like I have already said in respect of the others grounds, he has not given any hints of what he has in his mind in raising this ground. It is the principle however, that except where a particular statute may have provided otherwise, the duty of proving the charge against the accused rests squarely on the shoulders of the prosecution. The latter is duty bound to advance evidence which will establish beyond reasonable doubt that the accused is indeed the person who committed the charged crime. The case of Jonas Nzike v. Republic (1992) T.L.R. 213 is relevant on the point. The accused has no duty of proving his innocence. He is simply required to raise a reasonable doubt in the mind of the magistrate and no more. I have in mind the case of Mwita and another v. Republic (1977) L.R.T. 54. In our present case, I have clearly demonstrated above that the evidence of PW1, PW5, PW2 and PW3 was not only strong, but also cogent, credible and reliable such that he cannot be heard to say that the case against him was not pr o r e n beyond reasonable doubt. There was evidence from PW1 and PW5 that he was seen in possession of property ownership of which was linked to PW2, also that PW2 identified his properties which he said were among those which were stolen in the said robbery. Also, PW2 and PW3 said that they identified him. Both of them said that he was armed with a panga with which he cut PW3 in the S -Th head. In all, that was evidence which squarely connected him to the charged crime. Thus, this ground too is demerit. Last but not least is the 7t1) ground in which he alleges that his defence was not considered. On this again, I agree with learned state attorney Mulisa that on going through the trial court's proceedings, it becomes apparent that in actual fact, there was no substance in his defence which can be said was ignored by trial court magistrate. In short, there was nothing in his defence worth consideration. Thus, this ground too is demerit. In a nut-shell, the appeal lacks merits and is dismissed in its entirety. Sgd: Mmilla, B.M. Judge 15 .8.2011 I certify that this is a true copy of the original Judgment. Ell High 12