20111031 TZHC Dodoma

'I- P C. IN THE HIGH COURT OF TANZANIA AT DODOMA (APPELLATE JURISDICTION) (DC) CRIMINAL APPEAL NO. 73 OF 2011 (Original Criminal Case No.385/2006 of Manyoni District Court at Manyoni) YOHANA SAMWELI IFUKA . ............... APPELLANT Versus THE REPUBLIC 11•S•l•l• ............... RESPO11DEFr1T JUDGMENT 031912011 & 31/10/2011. KWARIKO, J: Initially, the appellant herein and one LAURENT S/0 SUTE © CHANZI were arraigned before the trial court with two counts of Conspiracy contrary to section 284 and Armed robbery contrary to section 285 and 286 both of the Penal Code Cap. 16 of the Laws. It was 30th day of alleged by the prosecution that the two had on the September 2006 at unknown time in Manyoni District, Singida Region jointly and together conspired to commit the offence of Armed Robbery to one MASANJA S/0 LUTANYALILA and then on the same date at 00.00 hours they invaded and:robbed the said complainant of various shop items all total valued at Tshs. 150,000/= and shot him once with a gun 1 in order to obtain and retain the stolen property. The two had denied the charge and hence their joint trial. The facts of the case as can be obtained from the prosecution reveal that the complainant MASANJA S/a LUTANYALILA, PW2 was asleep in his home with his wife SADO D/O MKWABI, PW3 on the material time where their door house was broken and bandits entered therein. The bandits fired onto PW2's shoulder and injured him. The appellant was identified through his voice when he shouted to the complainants "hapo mllpd'; He was their neighbor. Then the bandits stole the said properties from the shop and left. After the thugs had left the complainants raised alarms where neighbours answered. These included PW4, KAMANYOLA S/O MDUKA who said that PW1 told them that he had identified the appellant and the then 2 nd accused person. The appellant was looked upon and upon nd accused arrest he admitted the al'egations and mentioned the then 2 as his accomplice. He also led the Police to recover a locally made gun- (Gobore) from his home which was connected with this incident. The gun was admitted in court as exhibit P1 while its bullets (gololi) were admitted as exhibit PIT. PW2's PF3 was admitted as exhibit Pill. Also the appellant's.Caution Statement which was taken by NO. C. 8919 D/CPL HALLAH, PW6 was admitted in court as exhibit P5 while the then 2nd accused's Caution Statement was marked exhibit P4 and was taken tendered by No. D. 9857 D/Sgt KITOYI, PW5. 2 In his defence the appellant denied the allegations and said that the police tortured him into signing exhibit P5. That, the gun he showed belonged to the then 2 nd accused who was his step-father, the evidence which his mother DW3, THERESIA ABRAHAMAN supported. He said did not confess. The second accused denied the allegations and said did not own the gun and the police tortured him where he signed exhibit P4 at pistol point. DW3, JACOB MKATIKA said the appellant was beaten hence confessed the allegations and PW1 had only suspected one EZEKIEL who was seen with the appellant the previous day. DW4, JAMSON EZEKIEL said after the incident they followed foot-prints and one militiaman (sungusungu) SHABAN was suspected since he was seen with the appellant. SHABAN did not attend the alarms. That the appellant was beaten and confessed the allegations but said the gun belonged to the 2nd accused. In its judgment the trial court found that though the complainants did not identify the thugs but the case was proved against the appellant herein. This was so because he showed the gun used from his home and was said to have been in the company of one suspect called SHABAN the previous day. That, he also confessed the allegations. He was thus found guilty, convicted and sentenced to thirty (30) years imprisonment with an order to pay the complainant of the stolen property. He was also ordered to compensate the complainant at a tune 3 of Tshs. 150,000/=. On the other hand the 2 d accused was found not guilty and hence was accordingly acquitted. Having been aggrieved by the trial court's conviction and sentence the appellant flied this appeal where he raised about nine (9) grounds of appeal. Essentially the appellant complained about four major points namely; That, the evidence in relation to his identification was not water tight and not corroborated. That there was no evidence to connect the gun found in his home with the one used in the alleged robbery and no proof was tendered as to the gun firing at the scene. That, the complainant PF3 was received in court illegally. That, the Caution Statement was illegally admitted since he had retracted the same. When the appeal was called in court for hearing, the appellant did not have much to say and reserved his comment until he heard what the respondent Republic had to say about his appeal. On its party, the respondent Republic through Ms. Luwongo learned State Attorney did not oppose this appeal for almost on similar grounds as the appellant's complaints. P41 This court, after it had gone through the evidence on record, the decision thereon, the grounds of appeal and the submission by Ms. Luwongo in support of the appeal it is of the same opinion that the prosecution case at the trial did not prove the appellant's guilty to the standard required in law. The following are the reasons for my contention: Firstly, though the trial court said the witnesses did not identify the thugs but PW2 and PW3 said they identified the appellant through his voice as he was their neighbor. This is what prompted the neighbours to follow-up the appellant and arrest him. As rightly submitted by the parties, voice identification is not reliable and sufficient evidence against an accused since voice can easily be imitated. I subscribe myself to the decision in the cited case of NUHU SELEMANI VR [1984] TLR 93 in that respect. Also, if the complainant had identified the appellant at the scene then there was no need to follow-up foot prints from the scene as it was uncontrovertedly stated by DW4 JAMSON 'EZEKIEL. Further, PW4 said they did not find the appellant at his home that night but arrested him the other night. While PW3 said the appellant was arrested at 8.00 am the following morning and which is similar to the appellant's version who said was arrested at 7.00 am. These contradictions show that there was no any identification at the scene no wonder no any area leader came to testify on this incident. 5 Secondly, contrary to what the trial court held, there was no evidence to connect the gun the appellant showed with the one used to shoot the complainant. There was no any ballistic report or that no evidence to show that PW2 sustained gun injuries. As rightly submitted by Ms. Luwongo, had the doctor came to testify it could have been explained what kind of injuries PW1 had sustained. That is why the PF3 was not a good evidence since it was illegally admitted in contravention of section 240 (3) of the Criminal Procedure Act, Cap. 20 Revised Edition 2002 since the appellant was not informed about his right to have the PF3 author to come to court for cross- examination. It is thus expunged from the record. The prosecution could at least have proved that there were gun fired at the scene by tendering bullet shells. That was not done and the trial court erred to connect the appellant with the found gun and the robbery at PW2's residence. After all since arrest the appellant 2nd accused which evidence was said the gun belonged to the then corroborated by his mother, DW5. Firstly, the trial court erred in law when it admitted the appellant's Caution Statement without making any injury as to its admissibility following his objection during the trial. Thus, the Caution Statement was not good evidence and it is hereby expunged from the record. Secondly, contrary to what the trial court held, there was no evidence to connect the gun the appellant showed with the one used to shoot the complainant. There was no any ballistic report or that no evidence to show that PW2 sustained gun injuries. As rightly submitted by Ms. Luwongo, had the doctor came to testify it could have been explained what kind of injuries PW1 had sustained. That is why the PF3 was not a good evidence since it was illegally admitted in contravention of section 240 (3) of the Criminal Procedure Act, Cap. 20 Revised Edition 2002 since the appellant was not informed about his right to have the PF3 author to come to court for cross- examination. It is thus expunged from the record. The prosecution could at least have proved that there were gun fired at the scene by tendering bullet shells. That was not done and the trial court erred to connect the appellant with the found gun and the robbery at PW2's residence. After all since arrest the appellant said the gun belonged to the then 2' accused which evidence was corroborated by his mother, DW5. Firstly, the trial court erred in law when it admitted the appellant's Caution Statement without making any injury as to its admissibility following his objection during the trial. Thus, the Caution Statement was not good evidence and it is hereby expunged from the record. Nq The trial court also erred in law when it did not specify the offence under which the appellant was convicted between Conspiracy contrary to section 384 of the Penal Code and Armed Robbery contrary to section 285 and 286 of the Penal Code. This was contrary to section 312 (2) of the Criminal Procedure Act, Cap. 20 Revised Edition 2002 and the same was fatal irregularity which viciated the judgment. Consequently, it is hereby held that the prosecution case did not prove the appellant's guilty to the standard required in law, the appeal is thus allowed, conviction quashed and sentence and order of compensation are also set aside. It is thus ordered that the appellant be released from prison unless otherwise lawfully held. Order accordingly. (M. A. WARIKO) JUDGE 31/10/2011 DELIVERED AT DODOMA 31/10/2011 7 Appellant: Present. For Respondent: Mr. Nchimbi State Attorney C/c: Ms Komba.