20140207 TZCA Dar es Salaam2

IN THE COURT OF APPPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: KILEO. J.A.. KIMARO. 3.A. And JUMA. J.A.^ CRIMINAL APPEAL NO. 45 OF 2007 ALLY RAMADHAN @ DOGO............................................................APPELLANT VERSUS THE REPUBLIC.......................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dar es Salaam) (Ml.ay, 3.) dated the 12th day of July, 2006 in HC. Criminal Appeal No. 54 of 2005 JUDGMENT OF THE COURT 5th February, 2014 & KILEO. J.A.: The Appellant, Ally Ramadhan @ Dogo is appealing against the decision of the High Court of Tanzania at Dar es Salaam (Mlay, J.) in Criminal Appeal No. 54 of 2005 in which the decision of the District Court of Ilala at Kisutu in Criminal case No. 119 of 2004 was sustained. The District Court of Ilala found the appellant guilty of armed robbery contrary to sections 285 and 286 of the Penal Code, Cap 16 and sentenced him to thirty years imprisonment. The particulars of offence constituting the charge state as follows: "That Ally s/o Juma Faiz @ Ally Mpemba, Ally s/o Ramadhan @Dogo and Kaisi s/o Jongo Hamisi are jointly and together charged on 11th day o f November, 2003 at about 18.15 hrs a Kariakoo /Kongo Street\ within Hala District in Dar es Salaam Region did steal a motor vehicle make Toyota Mark II Reg. No. TZQ9662 valued at shs. 4,000,000/- the property o f one Sadiq s/o Summer and immediately after the time o f stealing did use dangerous weapon to wit, pistol in order to obtain the stolen property." According to the evidence that was led at the trial court on 11/11/2003 PW2 Sadiki Hussein Tupa who was the driver of a motor vehicle owned by one Sadiq Sumar was invaded by a group of three bandits just as he had dropped off his boss at his home along Kariakoo/Congo Street at around 6.15 pm. The bandits made away with the vehicle after PW2 had been pushed out. The evidence of PW1 was that the appellant was found driving the stolen vehicle some seven months later on 14/06/2004. The basis of his being found guilty was his cautioned statement and possession of the stolen car. The appellant who appeared before us in person without legal representation had earlier filed a memorandum of appeal. His complaints against the decision of the courts below were basically centred on insufficiency of evidence and the admission of the cautioned statement which he submitted that it should not have formed the basis of his conviction as it was improperly admitted. When he was asked to address the Court in support of his appeal the appellant being a lay person did not have much to tell us except to ask us to adopt and consider his grounds of appeal. The respondent Republic was represented by Mr. Vincent Haule, learned Senior State Attorney. He started off by supporting conviction but upon reflection he supported the appeal. He conceded for a start that the particulars of the offence did not contain sufficient ingredients to enable the appellant to make an informed defence. Secondly, the cautioned statement which was heavily relied upon in affirming the decision of the trial court was improperly admitted as the voluntariness of the giving of the statement was not established. Mr. Haule further pointed out to us that as a whole there were inconsistencies in the case which ought to have been resolved in favour of the appellant. For example, whereas PW1 stated that the appellant was arrested while he was alone driving the stolen vehicle, DW4 whose evidence was not contradicted gave evidence under affirmation that on the day and time of their arrest they were three of them including the appellant walking towards his house. There are two main issues to be considered in determining this appeal. Firstly we need to consider whether the charge as laid against the appellant was adequate to enable him to make an informed defence. The second issue is on the sufficiency of evidence, including whether the cautioned statement was properly admitted. In Nasoro Juma Azizi v. The Republic, Criminal Appeal No. 58 of 2010 this Court held among other things that the particulars of the offence must state all essential ingredients to the offence. The elements necessary to constitute robbery are to be found in section 285 of the Penal Code which state: "Any person who steals anything and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained is guilty of robbery" When this provision is studied carefully it becomes obvious that in a charge of armed robbery it is important to mention the person against whom the violence is directed. In the present case as it can be deduced from the particulars herein above reproduced there is no indication of the person against whom the violence was directed. The property that was stolen as per charge sheet belonged to Sadiq Summer. However he was not the one from whom the car was robbed and he did not even testify in court. Apart from this there is a further anomaly in the charge. It is stated in the charge that the accused persons stole the vehicle and immediately after such stealing used violence in order to obtain it. If they had already stolen it and used violence after the stealing, then logically the violence used would not have been for the purposes of obtaining it but for purposes of retaining it. With such incongruity it cannot be said that the charge as laid adequately informed the appellant of what he was required to respond to. We are also of the settled mind that the abnormality in the charge is not that can be cured by the application of section 388 of the Criminal Procedure Act. The above consideration would suffice to dispose of the appeal. However, even if for the sake of academic argument we were to say that the charge was not defective, still the evidence against the appellant was insufficient to sustain a conviction. As for the cautioned statement, in the 5 first place the mere fact that the appellant is recorded as having said he had no objection to the tendering of his statement did not necessarily mean that he was saying that it was voluntarily made. It is trite law that before a trial court can act on a cautioned statement it must satisfy that the statement was freely given. The appellant was a layman and the matter had to be approached holistically including a reflection of the questions he asked in the course of cross examining the person who tendered the cautioned statement. In answer to questions put by the appellant to PW4 who tendered the statement PW4 is recorded as having answered: 'We seated inside the building. You said that there was no need o f calling anybody if you could have refused. I could not here taken. I informed you your right...... there were other police officers around. I f you need them to come they will come. Today you refuse to invite your relative at the time of recording your statement (caution statement)" Much as the recording of the evidence is hazy, one can still decipher from it that the appellant was questioning the voluntariness of the cautioned statement and for this reason the courts below should have made a definite ruling as to its voluntariness before they relied on it. It was not correct therefore, to conclude as the learned first appellate judge did, that the cautioned statement was admitted without objection. There is yet another aspect of the cautioned statement which to us appeared to make the statement highly suspect. The first question that PW4 asked the appellant after he had recorded general information about him was;'Wen/e shughuli za ujambazi umeanza Uni?" Literally translated this means: "When did you start this business o f robbery?"Th\s appears to us to be very strange. It is no where shown that the appellant had informed the witness that he was engaged in the business of robbery. The witness had made his own conclusions. This should have alerted the courts below that the statement needed a closer look before it was acted upon. In his submission Mr. Haule told us also that there were some inconsistencies in the evidence as a whole which should have earned the appellant the benefit of doubt. He pointed out that whereas PW1 stated that the appellant was arrested while he was alone driving the stolen vehicle, DW4 whose evidence under affirmation was not contradicted stated that on the day and time of their arrest they were three of them including the appellant walking towards his house. In the light of our considerations above we find the appeal to have merit. We accordingly allow it. Conviction entered against the appellant is quashed and sentence is set aside. He is to be released from custody forthwith unless held for some lawful cause. DATED at Dar es Salaam this 07th Day of February 2014. E. A. KILEO JUSTICE OF APPEAL N. P. KIMARO JUSTICE OF APPEAL I .H. JUMA JUSTICE OF APPEAL