20140617 TZCA Iringa

IN THE COURT OF APPEAL OF TANZANIA AT IRINGA CRIMINAL APPEAL NO. 257 OF 2014 fCORAM: MSOFFE. J.A.. KAIJAGE. 3.A.. And MMILLA. J.A.^ CHARLES VITALIS NDEGE MATUTU DON ATI NYON DO APPELLANTS KASSIM ARMANDO SAMSON VERSUS THE REPUBLIC................................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Songea (Manentoz_J.) dated the 22nd day of July, 2002 in Consolidated Criminal Appeal Nos. 64. 65 & 66 of 2000 JUDGMENT OF THE COURT 16th & 18th June, 2014 MSOFFE. J.A.: The District Court of Songea (Mwankenja, SDM) convicted the Appellants of eleven counts of armed robbery and one count of grievous bodily harm in consequence of which they were sentenced to terms of imprisonment for thirty and two years, respectively, with an order for the sentences to run concurrently. Their first appeal to the High Court (Manento, J.) was unsuccessful, hence this second appeal. i Very briefly, the evidence, as it unfolded at the trial, was that on 24/4/1999 at about 6.45 p.m. PW7 Ally Athumani was driving a passenger bus along Songea - Tunduru road. In the bus there were a number of passengers including PW5 Deogratius Njaula, PW6 Detective Sergeant Kanuti and PW9 Gerwalda Nditi. At a place called Kimuli the bus was stopped at gun point by the Appellants. The Appellants entered into the bus and ordered passengers to surrender to them all their belongings. In the process, money and other properties were surrendered to the Appellants. According to the witnesses, the 1st Appellant was holding a gun while the 2nd and 3rd Appellants were wielding a knife and a bamboo stick, respectively. Upon hearing the sound of an oncoming vehicle the Appellants decided to flee from the scene. Although he was injured, PW7 decided to drive away the bus from the scene. PW5, the bus conductor, decided to remain behind and instead walk to a place known as Lumecha. At Lumecha PW5 saw the Appellants. He jumped on the 1st Appellant and seized him while the two other Appellants sneaked away from him and vanished. People came to assist PW5 whereupon the 1st Appellant was found with a gun and 18 ammunitions. On the following day the 2nd and 3rd Appellants were arrested and upon being searched they were found with money and other properties. PW8 Insp. Mashen conducted an identification parade whereby PW11 James Steward was among the people who were lined up for the parade. In the parade the witnesses identified the Appellants. PW1 Insp. Mgina, PW3 D/Sgt. Emil and PW2 E.7553 D/Sgt. Wilbroad recorded cautioned statements of the 1st, 2nd and 3rd Appellants, respectively, which were eventually produced and admitted in evidence. In the statements each Appellant implicated himself before implicating the others. In their respective memoranda of appeal the Appellants have raised several grounds of appeal. However, as shall be demonstrated hereunder, only a few of them are important and relevant for purposes of a fair determination of this appeal. We start with the crucial issue of identification. The prosecution case was to stand or fall on this aspect of the evidence. On this, the courts below were satisfied that the evidence was watertight based, as it was, on the evidence of PW5, PW6 and PW9. With respect, we hold a different view. The courts below, and particularly the High Court, were of the view "that it was s till day tim e and the accused persons had not covered their faces and the incident took a long time to be com pleted" as a basis for holding that the obtaining conditions were favourable for a correct identification of the Appellants. That may well have been so. But, from the evidence of PW5 the incident took place at around 6.45 p.m. and according to PW6 the sun was just about to set down and that darkness was yet to fall in. At the same time, in the evidence of PW7 the bus lights were on - to suggest that it was already dark. If so, who should be believed as between PW5 and PW6 on one aside and PW7 on the other side! In the light of the above evidence, it will be fair to say that it was not established conclusively and beyond doubt that the conditions were favourable for correct identification. From our own appreciation of the evidence it will also be noted that the witnesses were seeing the Appellants for the first time and this was a sudden attack with little or no time for them to cool down and appreciate what was going on around them. Closely added to this aspect of the evidence is the version by PW5 that at Lumecha he jumped on the 1st Appellant and arrested him. Yet again, this may well have been so. But the evidence of PW5 is not positive and conclusive that this was the same person he had earlier seen and identified at the scene. There is doubt here because in his own testimony under cross-examination by the third Appellant PW5 was clear that "from the place o f incident to Lumecha is 2 m iles aw ay." If so, as earlier stated, PW5 ought to have been more forthcoming and state exactly that this was the same person he had earlier seen and identified at the scene of incident. Closely related to the above aspects of the prosecution evidence is that generally no witness testified positively that he identified the Appellants by their distinctive clothing, marks, etc. In a case such as this one, we think, evidence along the above stated lines was necessary in lending more credence to the prosecution case. In view of the foregoing, we are in agreement with Mr. Wilbroad Ndunguru, learned State Attorney for the respondent Republic who argued in support of the appeal, that it cannot be safely argued and believed that the Appellants were positively identified at the scene of crime. On the basis of the above aspects of the evidence, they are entitled to be given the benefit of doubt. This brings us to the cautioned statements. The Appellants' complaint is that these statements were produced and admitted in evidence without ascertaining from them whether or not they had any objection. This complaint has merit. It is true that the statements were produced and admitted in evidence without asking the Appellants if they had any objection. It is trite law that whenever it is intended to introduce a document in evidence it should first of all be cleared for admission. This is normally done by ascertaining from the accused person whether he/she has any objection. The failure to do so will normally result in the document being expunged from the record - See George Malindi v. Republic, Criminal Appeal No. 265 of 2011 (unreported) and Robinson Mwanjisi and Another v. Republic (2003) TLR 218. So, if the caution statements are expunged it follows that the only other material evidence would be the evidence of visual identification which, as we have endeavoured to show above, has its own shortcomings. The Appellants have also complained about the conduct of the identification parade. In their view, it was not properly conducted. The conduct of identification parades is governed by PGO No. 232. Paragraph (2) (n) thereto reads:- There should be eight or more persons on the parade for one suspect; ten or more in two suspects. I f there are more than two suspects, more than one parade w ill norm ally be held\ with different personnel used to form each parade. In this case, there were more than one suspect. Ideally and normally therefore, there was need to conduct more than one parade. Apparently this was not done and the evidence in this case on the identification parade may therefore be safely discarded - See Said Lubinza and Others v. Republic, Consolidated Criminal Appeal Nos. 24, 25, 26, 27 and 28 of 2012 (CAT) (unreported). Once this evidence is discarded it follows that there is no other evidence upon which a conviction could safely lie. For the foregoing reasons, this appeal has merit. We allow it, quash the conviction and set aside the sentence(s). The Appellants are to be released from prison unless lawfully held. DATED at IRINGA this 17th day of June, 2014. J. H. MSOFFE JUSTICE OF APPEAL S. S. KAIJAGE JUSTICE OF APPEAL B. M. MMILLA JUSTICE OF APPEAL I certify that this is a true copy of the original. Z. A. MARUMA DEPUTY REGISTRAR COURT OF APPEAL 7