20121123 TZHC Dodoma

S I.- - IN THE HIGH COURT OF TANZANIA ATDODOMA (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 FAJAMASHAKA MUSSA SIMBA @ KUFAKUNOGA ...... RESPONDENTS JUDGMENT 24/10/2012 & 23/11/2012 KWARIKO,J. The respondents herein were jointly and together arraigned before the district court of Dodoma with the offence of Armed Robbery c/s 285 and 287 A of the Penal Code Caps 16 Vol. 1 of the Laws as amended by Act No. 4 of 2004. It wsaIIeged by the prosecution that the respondents had jointly and together on the 15th day of October, 2009 at about 23.00 hours afArea "A" within the Municipality and region of Dodoma stolen one mobile phone made Vodafone 810 valued at Tshs. 300,000/= fhe.prbperty of one E. 9027 DC SILVANUS and cut him with machete (Panga) on his left arm in order to obtain and retain the said property. Thétwo had denied the charge hence a full trial had been conducted. During the trial the prosecution evidence revealed that the complainant N;o. E 9027 DC SILVANUS PW2 hadbeen invaded by two thugs on his way home. The two had a midiete which they used to assault him. They robbed him a mobe phone make Vodafone and run away. However, PW2 identified one of the thugs as the ]st respondent herein whom he knew before as he used to attend rehabilitation clinic at the police station beç a drug addict. The identification was aided by electric fluorescerit light from two houses around the scene PW2 raised alarms and pople came who took him to police and hospital for treatment. The following day PW2 went to voda shop 'here his phone number was investigated and it was discovered *at the number had called some numbers soon after the robbery... Those numbers were traced to HALIMA HAMISI SAID, PW3 and MAM HAMISI, PW4 On further investigation the 1st respondent was arrested and admitted the allegations and led the police to the place where they had sold the stolen phone. The phone was tracedt one HASSAN MUYAGA HASSAN, PW1. This phone was admitted;.ir court as exhibit A. 2 Upon interrogation by No. D 6457 DISgt JOSEP:HAT, PW5, the 1st respondent is said to have admitted the aflegaticns. His caution statement was, recorded and the same though h objected it but was admitted as exhibit 'M'. 1, At the end of the prosecution case the court found that a case had not been made out against the 2nd respokdent hence was acquitted in terms of section 230 of the Crimincl'Procedure Act. Cap .20 R. E 2002. In his defence the ]st respondent herein testified that he was sound asleep in his parents' home at the material'niht and thus the prosecution evidence was pure lies. He did not call thny witness. In its judgment the trial court found that the rosecution case which was purely circumstantial did not prove t1e charge against the 1st respondent. He was thus found not guilt,dnd accordingly acquitted. The Republic was not satisfied with the trial court's decision hence filed this appeal upon the following four grouds of appeal 1. That the Hon. Trial Court Magistrate erred?h both law and facts in acquitting the respondents herein without V 3 V V ' appreciating the prosecution side's evidece and exhibits adduced in court. The trial court magistrate failed to give releVant weight upon the first accused's admission and investigatory work by the defectives as sufficient proof that it was,hirn (1st accused) who committed the alleged robbery. The trial court magistrate erroneously rdched to that decision after misleading and misdirecl1ng himself by wrongly referring to cases that were 'irr&levant and in applicable in the matter before him. h The trial court magistrate erred in law and fact by directing himself into admitting the DW1 's defence of alibi and disregarding the PW2's evidence of identification of DWJ at the scene of crime. This appeal was heard in the absence of the r spondents since efforts to trace their whereabouts proved futile.fhus, during the hearing of the appeal the appellant was representhd by Mr. Katuli learned State Attorney who argued three groun of appeal after he decided to abandon the fourth ground of appeal. I will refer to rc Mr. Katuli's submission in the course of this decision. Thus the issue to decide here is whether this appeal has merits. 4 In relation to the ]st ground of appeal this cdurf does not agree with Mr. Katuli learned State Attorney that the It respondenf was sufficiently identified at the scene by PW2. As indicated b y Mr. Katuli, PW2 said he identified the 1 It respondent by lectric light that came from two nearby houses at the scene. Firs{ly, PW2 did not explain what was the distance from the said tvdhouses and the scene. And he did not explain the intensity of lighfwhich came out from the said electric fluorescent tubes. This is so because electric fluorescent tube differ/vary in light intensities ard.T the size of the fluorescent tubes vary. The area which was illuminated by the light was also not explained. That was the position takenby the Court of Appeal of Tanzania in the case of HATIBU MB1RA V R, Criminal Appeal No. 202 of 2007, at Dodoma, [unreported] wHere the case of that Court of ISSA sf0 MGARA SHUKA V R, Crimindi Appeal No. 37 of 2005 was cited with approval, it was thus said; "It iscommon knowledge that lamps b they electric bulbs, fluorescent tubes, hurrcane lamps, wick lamps, lanterns etc, give èi light with changing intensities.... hende". the overriding need to give in sufficient details the intensily of the light and size of the:., area illuminated". Jr Also, there is another aspect of PW2's 1dr1 1ifying evidence which say that he knew the 1st respondent before. Again the Court J 5 IIJ 'I of Appeal in the cited HATIBU MBARA'S case (sura) which cited with approval• the case of KULWA sf0 MAKWAJrAPE AND TWO OTHERS, V R, Criminal Appeal No 35 of 2005 (unreported) had this to say; "The fact that evidence of prior knowledge of the suspects is relevant factor that facilitates the identification of suspects. But this should not be considered in isolation fror the pre-requisite requirement that conditions ror the proper identification of suspec 4, are favourable" [Emphasis supplied}. Therefore,ln the case at hand even though P2 said he knew the 1 st respondent before but since the conditiors'ror identification were not favourable he could not have positively identified him Thus, I do not agree with Mr.Katuli that the condifofs for favourable identification in this case met the criterion set our in the case of WAZIRI AMANI VR [1980] T. L. R 250. And the evidence by PW1, HASSAN MUYAGAHASSAN did not prove that the alleged phone that was pawned Ay' the respondents . 1 was the same as the one which was robbed from The complainant. This is so because PW1 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 PW1 did not prove that the respondents had pawned any phone to him No supportive 6 evidence was brought to that effect. Not ever W1 identified in court the alleged stolen phone to tally with the one he 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 disagree \Mth the learned State Attorney that the 1st respondent had c6nfessed to the allegations. As to the alleged recovery of the alleged stolen phone at PW1's place, I have already explained how the same did not prove that the alleged phone was the one subject matter of this case. Secondly, the 1st respondent's confessipn in the caution statement, exhibit 'M' was received in court contir7 to the law. This is so because when the prosecution introduced the statement the 1 st respondent retracted it. However, the trial court did not make any inquiry to ascertain the admissibility of the stcitement but went ahead and admitted it in evidence, although in the end it was not used to convict. Therefore, this was not good evidence and the court erroneously admitted it. It is thus expunged frbrf'i the evidence. As in relation to the evidence of PW3 and 1W4 I find that the same has no substance at all. This is so because, v,h11e PW2and PW6 said the complainant's phone number had beeniiaced to these two ladies, but throughout the trial nothing had be'n mentioned to be the complainant's phone number. PW2's phore,number had not been mentioned and it was not mentioned hov, the same was linked to PW3 and PW4's phones. The ladies' pNoe numbers had 7 1 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 been traced to the ladies' phones soon after the robbery. And although PW3 said the respondents had phoned her but she did not say which phone number was used. PW3 also said that when the respondents came at her place they had mobile phone Nokia type which is different to ( :: the stolen one, Vodafone. Thus, there is no material evidence that the 9 s$"respondenf had given anyone a phone which matched PW2's alleged stolen phone. PW2 also did not sufficiently describe his stolen rndbile phone. He only said the same was Vodafone make but no serkjl number or any other identity had been mentioned. To coin it all le case against the 1st respondent was not proved to the sfandard.rquired in law. Lastly, this court agrees with the appellant thbt the trial court applied case authorities which are distinguishabl from the facts in the present case. As rightly submitted by Mr. Katuli the issue in the present case was identification of the respondénis at the scene. Whereas in the cited case of KISINZA RICHARD V K. [1989] T.L.R 131 the issue which was considered related to circumsntial evidence. Thus, this ground of appeal succeeds. In the fine however, Mr. Katuli learned State Atiorney submitted ilk that they had no objection With the 2nd respondcht'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. (M. A. K JUDGE 23/11/2011 Judgment delivered in court today in the presence of Ms. Magesa learned State Attorney for the Appelhint and in the absence of the respondents. Ms. Komba court clerk present. 7Avih TT •W) (M. A. ARIKO) JUDGE 23/11/2011 3 Ci Court: Right of Appeal fully explained. JUDGE 23/11/2011