20121218 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA AT DODOMA APPELLATE JURISDICTION DC CRIMINAL APPEAL NO. 47 OF 2010 (ORIGINAL DISTRICT COURT OF MANVONI CRIMINAL CASE NO. 132 OF 2009) 1. EZEKIEL JONAS } 2. ZAKA YO SOSPETER ................. APPELLANTS versus THE REPUBLIC ............................ RESPONDENT 21.11.2012 &.18.12.2012 JUDGEMENT HON. MADAM, SHANGALI, J. The appellants EZEKIEL JONAS and ZAKA YO SOSPETER were jointly charged together with one Mapambano Michael before the Manyoni District Court with the offence of Armed Robbery contrary to section 285 and 286 of the Penal Code, Cap 16 of the laws. After a full trial the two appellants were convicted and sentenced to suffer thirty (30) years term of imprisonment 2 while Mapambano Michael who was the second accused was found not guilty and acquitted accordingly. Aggrieved by the decision of the trial District Court, · the • appellants have filed this appeal intending to challenge both conviction and sentence against them. The brief facts of the case were that on 11 th April, 2009 at about 4.45 p.m. at Sayuni area within Manyoni District in Singida a gang of bandits broke the door and entered the house of PW 1, lsdory Mwasongwe. Having entered the house of PWl, the gang (said to be the appellants) stole some of PWl 's properties. A Panasonic TV valued at TShs.215,000/=, a VHC deck {TVC) valued at TShs.120,000/=, a VHS Deck-Sharp valued at TShs.50,000/=, a receiver make, Mediacorn valued at TShs. l 70,000/=, a JVC CD player valued at TShs.120,000/= all these properties are said to have been stolen. As if that was not enough the appellants are alleged to take with them TShs. l 0,000/= and thereby making it all adds up to a total of TShs.685,000/=, the value of the properties which the appellants to0k ~. from therein. In the night of incident PW 1 was not in his house but was informed by his wife Martha Jospeh, PW2. Having received the information PW 1 rushed home and learned that his properties 3 namely KVC Radio, DVD player, Video Decks, TV and two speakers were missing. He reported the matter at the police station and the wheels of investigation commenced. PWl 's testimony was supported by the evidence of PW2 who testified to the effect that on the material night she was asleep in her house but suddenly was awaken by the bandits who were already in the house. She stated that the bandits managed to put off the electricity lamp which was on and ordered her to stay put and silent. The bandits started to ransake the house and managed to get away with the said properties including her TShs. l 0,000/=. In the course of investigation the police got wind of information from one Fatuma lddi that the appellants had kept some stolen properties in her house. PW3, F 5166 Det. Msakila, a police investigator approached Fatuma lddi and laid a trap to arrest the bandits. Fatuma lddi arranged the appellants to appear at her home and introduced PW3 to them as a teacher from Mlowa who was interested to purchase the properties in question. According to the testimony of PW3, the bandits took him to Majengo area where the said properties were kept. PW3 claimed that he had t¢ secretly tell Det. Sgt Ramadhani (PW5) about the transaction in order to effect the arrest. PW3 claimed that he hired a taxi and proceeded with the appellants to the house of one Mbaggo where Fatuma lddi resides. Upon taking the alleged stolen properties PW3 suggested that they should all 4 go back to Sayuni and execute their business. It is on PW3's testimony that while on the way Det. Sgt Ramadhani successfully arrested the appellants. The alleged properties were one Radio with no speakers, two Decks and one TV of 21 inches part of Exhibit Pl. The testimony of PW3 was supported by that of PW5, Det. Sgt. Ramadhani who claimed to have affected the arrest of the appellants after getting information from PW3. On 12/04/2009 PW l was called at the police station to identify the seized properties. PW l claimed to have identified all the proportions due to his name marks scribbled on them. There is also prosecution evidence to the effect that when the first appellant was interrogated at the police station he confessed to have committed the offence in collaboration with the second appellant. The first appellants caution statement to that effect was recorded by PW4, F.2602 Det. Cpl. Salum. The "t• same was exhibited and admitted by the trial court as exhibit PII. According to the trial courts record of proceedings Fatuma lddi was one of the witnesses whom the prosecution intended to 5 call but having failed to get her, the trial District Court ordered her statement to be produced as evidence under the provisions of section 34 B ( 1) and (2) of the Evidence Act. The statement was then tendered by PW5 who claimed to have recorded it and admitted as exhibit P4. The appellants attempted to challenge its admissibility but the trial court brushed their complaints aside. In their sworn defence both the appellants categorically denied to have committed the offence. The first appellant claimed that he was unceremoniously arrested on 12/04/2009 at around 10.00 p.m. by the nine police officers when he was on his way to purchase mobile voucher at a nearby shop. He claimed that while o~ the way to the police station under arrest, the police passed at railway area and picked the second accused. He claimed that they were taken to police station, where they were heavily interrogated and beaten in order to show where the stolen goods were hidden. The first appellant stated that at about 1.00 p.m. (13.04.2009) the second appellant was brought in and on the next morning they were all taken before the court. The first appellant told the trial court that he was not identified or seen at the scene of crime and the prosecution has failed to call important witnesses to prove their case. 6 The second appellant told the trial court that on 12/04/2009 at about 1.00 p.m. he was at Mguruwangombe area on his way to the railway station. Suddenly he met some police officers who stopped him and started to question him. The appellant claimed that the police were not happy with his response. They turned angry and decided to arrest him while insulting him for being unmannered. He complained that he was kept in the lock-up for the offence of insulting the polic~ officers but eventually he was charged with the offence of armed robbery. Suffices to say the trial District Court found the prosecution case attractive and convicted the appellants as aforesaid. Before this court the appellants have put forward about four grounds of appeal which may conveniently be ~ondensed to two main grounds of appeal namely, one, that the trial District Court contravened the provisions of section 31 2 of the Criminal Procedure Act, and failed to consider the defence case and two, that the case against the appellant was not proved beyond reasonable doubt because the prosecution evidence was weak and unreliable. Ms. Nsana, learned State Attorney who appeared for the respondent/Republic submitted in support of the appeal basing on the following reasons. She supported the complaint raised by 7 the appellants that the trial District Court contravened section 31 2 ( l) of the Criminal Procedure Act because the trial District Court judgement lacks reasons for rejecting the defence evidence. Secondly, the learned State Attorney submitted that the caution statement in respect of the first appellant was admitted in contravention of the law. She argued that the trial District Court was supposed to conduct an inquiry or trial within trial because the first appellant declined to have confessed. Ms. Nsana stated that the trial court was duty bound to assess the -value of the caution statement to see to it that the same was voluntarily given as per the provision of section 27 ( l) of the Law of Evidence Act. Thirdly, the Learned State Attorney submitted that the statement allegedly to be of Fatuma lddi was admitted contrary to the law. In that regard she cited the provisions of section 34 B (2) (d) of Cap 6 to the effect that the copy of the said statement ought to have been served to the other parties before the hearing of the particular evidence. The learned State Attorney referred this court to the case of Director of Public Prosecution vs Ophant ,, Monyancha (1985) TLR ·127 where the court observed that the court can only admit a statement under section 34 (B) (2) of Cap 6 if all the conditions laid down in all the paragraphs, that its, paragraphs (a) to (f) of the subsection, are met. Therefore the 8 Learned State Attorney submitted that justice was not done to the first appellant in so far as the infringement of section 34 (B (2) is concerned. I agree with the learned State Attorney and the appellants that the trial courts'. judgement is not free from irregularities. In fact it is even more serious when the irregularities touch substance rights. Indeed it could easily be seen from the said trial District Courts judgement that the defence case was not considered at all. All that the trial District Court did is to believe the prosecution case that the appellants did actually commit the crime without assigning reasons why the defence was rejected. I also agree with Ms. Nsana 's argument that the caution statement of the first appellant was admitted against the law given that the appellant declined to have confessed. The trial court did not assess the voluntariness of the tendered cautioned statement as required by the law. In the cases of Paulo Maduka vs. R Criminal Appeal No. 110 of 2007 and Juma Adam vs Rep Criminal Appeal No. 79,: of 2011 (unreported) the court observed that although a confession to an offence made to a police officer is admissible in evidence, the prosecution is duty bound to prove that the same was made freely and voluntarily. In the instant appeal nothing on record can amply substantiate that the 9 caution statement alleged to have been made by the first appellant was voluntarily given. The first appellant declined to have made it but the trial court lightly opted to admit it as evidence and used the same to the detriment of both appellants. I am also at one with the Learned State Attorney that statement of Fatuma lddi was admitted in contravention of the law. It is trite law that the provisions of section 34 B) (2) (a) - (f) of Cap 6 are cumulative and that all the paragraphs (a) to (f) have to be adhered to. In general, the conviction of the appellants was based on questionable and doubtful prosecution evidence coupled with circumspection. The person who disclosed the· whole matter to the police officers, namely Fatuma lddi was not called to testify. Her statement was then wrongly squeezed in and admitted to return a conviction against the appellants. The taxi driver who was hired by PW3 and who witnessed the transaction was not called to testify. Save for PWl and PW2 no other independent witness was called to,. testify on behalf of prosecution side. r Instead the appellants' conviction was based on the evidence of the police officers, PW3, PW4 and PW5 together with a retracted caution statement of the first appellant. I am not saying it is wrong for a conviction to be based on the evidence of the police 10 officers,Only I am saying is that such evidence must be credible and free from doubts. The trial District Court failed to evaluate the defence case and assign reasons for rejecting the same. The position of the law is that a judgement must contain a critical analysis of the prosecution and the defence cases showing the reasons for accepting one side and rejecting the other. By considering the prosecution evidence alone and leaving the defence evidence aside amount~ to not giving a fair hearing to the accused. See, Hussein lddi and Another (1986) T.L.R. 166. In the upshot, this appeal succeeds. The conviction and sentence of. the appellants is hereby set aside. I order for the appellants' immediate release from prison unless they are held for any other lawful purpose. It is so ordered. M.S. SH /N ALI JUDGE 18/12/2012 11 Judgement delivered to-date 18th December, 2012 in the presence of both appellants and presence of Ms. Seif, Learned State· Attorney representing the respqndent/Republic. Right of Appeal Explained. M.S. SH ,:;;;,l 1s;12;2012