20111219 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA AT DODOMA. (DC) CRIMINAL APPEAL NO. 60 OF 2010 (Originating from Criminal Case No. 287 of 2009 of Dodoma District Court at Dodoma) ABDALLAH JUMA SASHA @ OSCAR JUMA AMANI ........ APPELLANT VERSUS THE REPUBLIC ••••••••...••...•.••••••.•.••••••••••••••••••••••••••• RESPONDENT JUDGMENT 23/11/2011 & 19/12/2011 KWARIKO, J: The appellant herein was arraigned before the trial district court of Dodoma with one count of Armed Robbery contrary to section 287 A of the Penal Code Cap. 16 of the Laws Revised Edition 2002 as amended by Act No. 4 of 2004. It was alleged by the prosecution that the appellant had on the 25th day of June, 2009 at about 00.30 hours at White Corner Bar at Nkuhungu area within the Municipality, District and Region of Dodoma Stolen cash money shs. 350,000/= and 5 mobile phones and shoot once in order to threaten customers and workers of the said bar to 1 O obtain and retain the said properties. When the charge was read ·over t9 the appellant he pleaded not guilty hence a trial in his respect was conducted. The evidence during the trial from the prosecution shows that one TUMAINI J. MASAGA, PW2 is the owner of the said White Corner Bar where the robbery occurred and was at the scene during the material time. At the scene also were ALLY S. SHABAN!, PWl who was a chips vendor, FATUMA SHABAN!, PW6 a Bar maid and GEORFREY J. SEMWENDA, PWS a customer. While these people were there and customers enjoying their night out, an armed thug appeared and ordered them to surrender all their valuables before they lied down. After the compliance with the order, PW1 took courage and picked a bottle of Soda with which he hit the bandit in the head and he fell down. Thereby they grabbed the gun from him and removed the camouflage (mzula) from his face. They identified him to be the appellant herein. However, in the process a gun was blown and the people there run away randomly. When they returned they found the bandit's clothes including a trousers, jacket, T-shirt and money shs. 350,000/=. In the trousers they found a letter (Exhibit B) from the Arusha District commissioner which was 2 .: O introducing the appellant to good Samaritans for any assistance .thafhe could need. The gun and other items from the bandit was taken to police and investigation of the incident ensued. In the course of investigation it was discovered that the gun (SMG) (Exhibit A) that was recovered at the scene was the same that was lost from Ujenzi - JKT, Dodoma in January, 2009 and Captain JULIUS KIYUNGU PW3 from JKT, Dar es Salaam came to identify the same. The appellant was arrested at Kizota area in the presence of PW3 who said that he was a soldier who had absconded from Oljoro National Service Camp. At the Police Station the appellant was interrogated by No. D. 8768 DC HAMISI where he confessed these allegations. His Caution Statement was admitted in Court as exhibit C. In his defence the appellant testified that the police came at his home where he was living with his Aunt at Kizota on 5/7/2009 at 17.00 hours and asked for one OSCAR, where he told them he was the one. They took the letter ( exhibit B) from his home and was sent to police where he was forced to sign a statement. 3 When he questioned about the statement he was beaten until he succumbed. It was the appellant's further testimony that the prosecution evidence was contradictory especially on what happened at the scene. That, his identification was not proved and there was no evidence to connect him with the alleged gun. He admitted during cross-examination that he had been suspended from Oljoro - JKT on 9 th May, 2009. At the end of the trial the court found that the appellant was sufficiently identified at the scene since there was electric light. And thus, the witnesses had ample time to identify the appellant since he had earlier come to buy cigarettes before he returned to invade them. That, exhibit B left behind at the scene also proved that it was the appellant who had invaded the complainants. The trial court ruled out any contradiction on the prosecution evidence. Thus, the appellant was convicted and sentenced to thirty (30) years imprisonment. Being dissatisfied with the trial court's decision the appellant brought this appeal which contains about eight grounds of appeal. Essentially, the appellant raised four essential grounds of appeal as follows; 4 ... _- - •· .L That, the prosecution evidence in relation to the 0-~ id~ntification at the scene was not water-tight. 2. That, the exhibits tendered in court did not connect the appellant with the alleged robbery incident. 3. That, the trial court's judgment contravened section 312 (2) of the Criminal Procedure Act Cap. 20 Revised Edition 2002. 4. That, the appellant's defence was not considered. During the hearing of this appeal the appellant only prayed the court to allow his appeal upon the grounds he raised. On the other hand the respondent Republic was represented by Mr. Nchimbi learned Senior State Attorney who did not oppose this appeal. He gave reasons for his stance which reasons will be referred in the course of this judgment. As rightly submitted by Mr. Nchimbi learned Senior State Attorney, the appellant's conviction hinged on three fold prosecution evidence. 5 ·. - - : - - - - - - - ~ ~ : . : - ·-=-~----.,;;;;;;;;;-iiiiiiiiiiiiiiiiiiiiii_iii r:;;;-:c:":-'-.-;:::7""", tii@ii_~~•--iiiiiiii ____ii&i;._ ;:O Firstly, there is the evidence in relation to identification at the scene which also forms the appellant's 1st ground of appeal. The trial court was emphatic that the conditions for favourable identification were met in this case. This court agrees with both parties that the conditions for proper visual identification were not explained and met in this case. The following are reasons for this stance: Firstly, the witnesses did not mention that there was any source of light at the scene which enabled them to identify their invader. Since the material time was night time between 23.00 and 00.00 hours which dark the witnesses have stated what source of light enabled them to identify their invader to be the appellant herein. Thus, the trial court was wrong to have held that there was electric light at the scene against the available evidence. Also, since the witnesses said they saw the appellant for the first time that day, they ought to have described him in detail. His outfit, physical appearance and complexion ought to have been explained by the witnesses, PWl, PW2 PWS and PW6. In the case of RAYMOND FRANCIS VR [1994] T.L.R 100 which Mr. Nchimbi cited the Court of Appeal of Tanzania held inter-alia that; 6 "Since all the witnesses admitted seeing the appellant for the first time during that day it was necessary in their evidence of identity to describe in detail the identity of the appellant when they saw him at the time of the incident". Also, the important of description of an assailant was discussed in another case Mr. Nchimbi learned Senior St~te Attorney cited of RV MOHAMED BIN ALLUI [1942] 9 EACA 32. Coupled with the aforegone discussion and since the witnesses were strangers to their assailant an identification parade should have been conducted after the appellant's arrest. Failure to conduct the parade was a fatal irregulity on the prosecution evidence in relation to appellant's identification. The 1st ground of appeal thus succeeds. In the second fold of the evidence against the appellant, the prosecution relied upon exhibits A, B and C. This also form the basis of the appellant's 2 nd ground of appeal. The trial court associated the appellant with the gun and a letter allegedly found at the scene. The appellant has been emphatic that these exhibits bear no any connection with him in respect of the alleged robbery. This court agrees with the appellant and as rightly 7 ,.0 submitted by Mr. Nchimbi learned Senior State Attorney that the gun ( exhibit A) was not proved to have sufficiently been connected with the appellant. This is so because no any report was filed to show that the appellant's finger prints or DNA were found on the gun. Also, the witnesses' evidence contradicted in relation to the gun found at the scene. While PW1 said that there was gun shot fired from another gun apart from the one they took from the appellant, PW2 was emphatic that the same gun from the appellant was the one that was fired. Thus, this evidence shows that there was no clear version as to whose gun was found and taken from the scene. If there were several gunmen at the scene, then why the witnesses insisted that there was only one who happened to be the appellant that invaded the scene? No one volunteered to explain this contradiction. The trial court erred to rule out that there was no such contradiction. Further, the letter ( exhibit B) alleged to have been found in the appellant's trousers which was left at the scene was illegally admitted in court. While the appellant objected to the admission of the letter, the trial court did not give him opportunity to explain his objection and have the same decided. As rightly submitted by Mr. Nchimbi learned State Attorney, the appellant was denied his right of being heard. Therefore, this letter was not good evidence and it is hereby expunged from the record. 8 o· Also, the trousers from which the said letter was fished out .had notbeen explained as to its origin. The witnesses, PW2, PW3 ·. and PW6 did not explain how the appellant's trousers found its · way to the scene. Therefore, since there is doubt as regards the origin of the letter by the prosecution evidence, this court believes the appellant's account that the same was taken from his home during arrest. Incidentally, the appellant admitted that he had been suspended from Oljoro National Service which fact is borne in the said letter. The other piece of evidence in respect of the appellant from the prosecution is his caution statement, exhibit C. This evidence was apparently ignored by the trial Magistrate when he wrote his judgment. However, this document was admitted in court contrary to the law since the appellant was not given opportunity to say anything before the same was received in evidence. Had the appellant been given opportunity to comment about his caution statement he must have aired out his complaint he came to raise in his defence that he was tortured to sign an already prepared document. Thus, exhibit C is not good evidence and it is hereby expunged from the court record. The 2 nd ground of appeal thus succeeds. 9 M , In the third ground of appeal the appellant complained that section 312 (2) of the Criminal Procedure Act was not complied in the trial court's judgment. Mr. Nchimbi learned Senior State Attorney did not specifically respond to this complaint. This court has gone through the judgment in question and found that the same complied with the cited law. It was stated at the end of the judgment that "the appellant was convicted as charged" and this was sufficient compliance with the cited law. This ground of appeal thus fails. In the last ground of appeal which again Mr. Nchimbi did not respond, complains that the appellant's defence was not considered by the trial Magistrate. Again the trial court's judgment shows that the appellant's defence was well considered in all the issues he had raised thereat. Thus, the complaint is without merits and it is thus rejected. Otherwise, for what has been analysed hereby above, this court is satisfied that the prosecution case against the appellant was not proved beyond reasonable doubts and thus his appeal is allowed, conviction quashed and sentence of imprisonment is set aside. The appellant is ordered to be released from prison unless he is otherwise lawfully held. It is so held. 10 . 0 (9~) JUDGE 19/12/2011 DELIVERED AT DODOMA. 19/12/2011 Appellant: Present. For Respondent: Mr. Katuli State Attorney. C/c: Ms Komba. 11