baraka nurdin maloya vs republic 2014 tzhc 2213 2 july 2014

IN THE HIGH COURT OF TANZANIA AT SONGEA DC CRIMINAL APPEAL NO. 53 OF 2013 (Originating from TUNDURU DISTRICT COURT CRIMINAL CASE NO. 156 OF 2013) BARAKA NURDIN MALOYA...........................................APPELLANT Versus REPUBLIC..................................................................RESPONDENT Last Order: 0 2 nd June, 2014 Dat« of Judgment: 02nd July, 2014 JUDGMENT FIKIRINI, 3 : Six accused persons namely Rajabu Abdallah Lokoloto, Shaibu Saidi Hemed, Baraka Nurdin Maloya, Ally Hashim Kapopo, Selemani Abdallah Likoloto and Rajabu Yasin Hassan before the trial court referred in the same order as 1st, 2nd, 3rd, 4th, 5th and 6th accused person, were charged with two counts of conspiracy and assault causing actual bodily harm contrary to section 384 and section 241 of the Penal Code, Cap 16 R.E. 2002 respectively. The particulars of the offence was that on 20th day of October, 2012 at Mchangani area within Tunduru district in Ruvuma region, they did conspire and assaulted Waziri Ally Mussa using fists and causing him to suffer serious injuries. All the six accused persons denied the charge and prosecution summoned four (4) witnesses to prove its case. The evidence before the trial court can be summarized as follows: that on the material day PW1 - Waziri Ally Sheikh Mkuu of the Tunduru district mosque was at his home in Mchangani area. At around 9.00 hours PW1 was approached by the 1st, 3rd and 4th accused persons who found him seated outside his house. On arrival and after being seated they told him that they had a problem regarding Kitumbini mosque and they would wish to discuss the matter with him. They then asked him if they could go outside and behind his house so that they can tell him of their problem. PW1 turned down their request. After turning down the request they pulled him down, threw sand into his eyes and started beating him. Another group of people joined in. PW1 toid the court that he could identify the three accused persons as there was an on-going lamp; but not those who came later. The accused persons beat and kicked him. PW2- Mwamini Ally, PW l's wife raised alarm but by then the accused persons had already ran away. The matter was reported to the Police with the assistance of one Allawi and Salum Ally. PW1 was taken to Police and issued with PF3. From there he went to hospital where he was hospitalized for several days. Through PW1 the PF3 was tendered and admitted into evidence as exhibit Pi. The other two witnesses PW3 - Ratifa Saidi aged 13 years old and PW4 - Faudhia Ismail aged 12 years old their evidence was recorded after voire dire examination was conducted and the magistrate was content that they both understood the nature of oath. Both these witnesses were staying at PW l's place, he being their grandfather and on the fateful night they were at home asleep. They both stated to have heard noise; when they went out they saw people beating PW1. PW3 managed to identify the 1st accused person who had a red shirt, since he was the last person to run away from the scene. After the close of the prosecution case, the court ruled that all accused persons had a case to answer. They all defended themselves and some called witnesses. The appellant in his affirmed defence evidence denied committing any offence. He called two witnesses Nurdin Maloya and Safarani Zarafi who both stated that the appellant was at home on the material night and after watching Tv he went to bed. The appellant was arrested on 22nd October, 2012 on allegation of assaulting PW1 on the evening of 21st October, 2012, on religious conflict. The defence witness Nurdin Maloya refuted the appellant having such behaviour. Based on the evidence of the four (4) prosecution witnesses the accused persons were convicted and sentenced to serve two (2) years for each count, the sentences to run concurrently. There was as well an order for compensation of Tzs. 300,000/ to PW1 upon completion of their sentence. The appellant is now appealing that decision and has four grounds: 1. That,■ the tria l court erred in law and fact to convict the appellant while the prosecution d id not prove their case beyond reasonable doubt 2. That\ the tria l court erred in law and fact to convict the appellant w ithout considering the defence evidence. 3. That, the tria l court erred in law in basing on the weakness o f the defence case. 4. That, the tria l court erred in law and fact to convict the appellant basing on caution statem ent. At the hearing, Mr. Ndunguru appeared for the appellant while Mr. Medalakini appeared for the respondent. Arguing the appeal Mr. Ndunguru submitted that since the offence was committed at night the evidence of identification of the assailant without mistaken identity was of utmost importance to the case. However, in the present case, with regard to the issue of identification, there were a lot of doubts which factored in which ought to have been resolved in favour of the appellant. He submitted that though there was on going lamp as evidenced by PW1, but the court was not told the intensity of light of that lamp, that enabled him to identify his assailant without mistaken identity. And in top of that no description of the assailant was given, to the Court, as to their appearance, colour, height and any other particular mark of identity to prove the appellant was properly identified. It was also not stated the clothes they had worn on the material day. To support his submission Mr. Ndunguru cited the cases of Frank Haule V R, Criminal Appeal No. 2 of 2012 CAT-Iringa, R V Ally (1971) H.C.D. No. 306 which was quoted with approval of R V M.D Alui (1942) 39 E.A.C.A. and Bushiri Amiri V R (1992) T.L.R. 62. Mr. Ndunguru furthered his submission that PW1 could not tell, if when being assaulted, the confrontation was face to face, and under what length of time the assailants were under his (PW l's) observation. In addition, the trial court banked on the evidence which was not adduced during the trial that there was moon light (see page 13). According to Mr. Ndunguru all these were doubts as to whether the appellant was properly identified. And since the only evidence was that of PW1, it therefore needed to be corroborated. As for the offence of conspiracy, it was his submission that the prosecution did not prove its case beyond reasonable doubt. To make it worse the court convicted the appellant relying on a cautioned statement which was not admitted into evidence. But even if it was to be admitted still it was the cautioned statement of DW2-Dimu Yusuph Chipangula who was a co-accused. Therefore could not sustain the conviction. In the third ground, Mr. Ndunguru challenged the trial court reliance on the weaknesses of the defence anci DW2's cautioned statement. It was thus his prayer that this appeal be allowed. Responding in support of the appeal, Mr. Medalakini stressed on identification made as poor. He went further submitting that PW1 did not mention distance between him and his assailants and time under which he had them under observation. Also none of the other witnesses testified on that. Mr. Medalakini referred the Court to the case of Waziri Amani V R (1980) T.L.R. 250 and concluded that the identification made by PW1 was poor and hence unreliable. He also submitted that the PF3 went into evidence through PW1 which was in contravention to the laid down procedure under section 240 (3) of the CPA. The PF3 has to therefore be expunged from record. For this he cited the case of Mustapha Songambele V R, Criminal Appeal No. 176 of 2007. CAT- Iringa (unreported). He concluded his submission by saying that after expunging the PF3 the only remaining evidence was that of PW1 which was weak in establishing the nature and extent of the assault. I have carefully studied the trial court record, grounds of appeal and submissions made by the counsels in support of the appeal. I do support that this appeal is meritorious for the following reason. Starting with the first count that of conspiracy to commit an offence. From the evidence on record there was nothing supporting the commission of the offence. First, the trial magistrate relied on the evidence of PW1, PW2, PW3 and PW4 that they identified the accused persons as those who assaulted PW1 on the material night. This piece will be discussed further later in this judgment, but in short the evidence was weak and unreliable. Second, for evidence to mould the conspiracy; the trial magistrate relied on the evidence that the accused persons were friends and they knew phone numbers of each other; As portrayed in his conclusion in his judgment at page 15-16, he also relied on his assumption that since the 1st accused person - Rajabu Abdallah Likoloto was of bad behaviour and all the other accused persons knew of that, therefore the 3rd, 4th, 5th and 6th accused persons by associating with him must have had the same behaviour as that of the 1st accused person. He also connected the 1st and the 2nd accused person since they were arrested together, after the 2nd accused had escorted the 1st accused to the Police station to secure a PF3 after he was assaulted by unknown people thinking he was a thief after finding him hiding. From the above account I could not get any form of evidence of conspiracy or proof of secret plan among the accused persons including the appellant; with intention of harming anyone or do anything illegal. It might be true that all the accused persons were friends or knew each other but that does not prove that they have the same behaviour, the same thinking or share same interests. Since there was no proof that the accused persons did assault PW1 and caused him bodily harm as alleged by the prosecution as will be seen later in this judgement, therefore one cannot, based on, that unproved evidence or mere assumptions, conclude that the accused persons including the appellant had common intention. The fact that the accused persons had each other's phone number and they used to communicate does not prove conspiracy. In the case of Hatibu Gandhi and Others V R 1996 TLR 12 (CA), the Court of Appeal brought into action section 12 of the Tanzania Evidence Act, Cap 6 R.E. 2002. This is what the provision provides as far as conspiracy is concerned: ' Where there is reasonable ground to believe that two or more persons have conspired together to com m it an offence or an actionable wrong, anything said, done or written b y anyone o f such persons referring to or in execution o f or furtherance o f their common intention a fte r' the time when such intention was first entertained by anyone o f them ; is a relevant fact as against each o f the persons believed to be so conspiring as w ell as for the purpose o f proving the existence o f conspiracy as fo r the purpose o f show ing that any such person was a party to it ' In the appeal before me nothing of the sort was established and proved. The trial court incorrectly arrived at its conclusion that conspiracy against the appellant and others has been proved. In the second count of assault and causing bodily harm, the court relied on the same evidence of PW1, PW2, PW3, PW4 and the PF3 tendered into evidence in proving this count. The incident occurred at night around 08.00 or 09.00 hours therefore identification of the PW l's assailants was of utmost important and a life support to the case. According to PW1 he could identify his assailants using light sourced from an on going lamp. The question here is whether the said light was sufficient to allow PW1 identify his assailants who according to the charge sheet were six (6). In the celebrated case of Waziri Amani (supra) the Court of Appeal clearly illustrated what should be examined when identification is one of the issues for determination and warned that: "Evidence o f visual identification is o f the weakest kind and m ost unreliable The Court went further stating that: 10 i "No court should act on the evidence o f visual identification unless a ll possibilities o f m istaken identity are elim inated and the court is fully satisfied that the evidence before it is absolutely w atertight' In the present appeal, as well submitted by both counsels, identification was lacking. I do share their position due to the following reasons, one, the court was not told the intensity of light generated from the on going lamp (chemli). PW1 at page 19 of the proceedings when cross examined by the appellant he stated moon light assisted him as well in identifying his assailants. Again the court was not told how bright this moon light was. Two, there was no description of those identified with their distinct marks or features such as tall, short, heavy, slim, light or dark coloured and so forth. PW1 could not describe what his assailants had worn on the' materia! night despite stating that they sat near him especially the 1st and the appellant. Also, it was not revealed the distance between PW1 and his assailants as near can mean so many things. It also matters if people were seated sideways, behind one another or facing each other but also this was not said. Length of time they were under his observation was equally not disclosed. How long before they pulled him down sanded his eyes and went on beating him. Three, it was also not known if PW1 knew the assailants prior to the day. In his evidence on record, PW1 could not give thorough description of any of the assailants and specifically the appellant, though in its decision the court concluded as if there was sufficient evidence that PW1 knew some of assailants prior to the material night. Four, though PW2, PW3 and PW4 testified to have witnessed PW1 being assaulted but could not identify any of the assailants with sufficiency. PW3 testified to have identified the 1st accused person based on the red clothing he had on and the fact he was the last one to run from the scene. This witness did not tell the court what assisted her to identify the 1st accused person. But I want to presume she relied on the same light as PW1. Since the court was not told the intensity of the light it was thus hard to rely on PW3's evidence that it was without the possibility of mistaken identity. The identification made by PW1 and PW3 was lacking and hence unreliable. All the above cited cases have been examined and all have given guideline in one way or the other regarding identification issue. I will discuss the second and third grounds together since they relate to the defence case. It is true that the trial magistrate did not consider the defence case as it should be. In the case of Mkulima Mbagala V R, 12 Criminal Appeal No. 267 of 2006 CAT (unreported) the Court of 'i Appeal had this to say regarding judgment writing: " For a judgm ent o f any court o fju stice to be held to be a reasoned one, in our respectful opinion ; it ought to contain an objective evaluation o f the entire evidence before it. This involves a proper consideration o f the evidence for the defence which is balanced against that o f the prosecution in order to fin d out which case among the two is more cogent. In short\ such an evaluation should be a conscious process o f analysing the entire evidence dispassionately in order to form an inform ed opinion as to its quality before a form al conclusion is arrived af In the instant appeal, based on the record, the trial magistrate in actual fact did not consider the defence case. As stated in the cited case above the trial magistrate has to give a reasoned decision after evaluating entire evidence of both the prosecution and the defence. The omission of not considering the defence case casts doubt as to whether the case had been proved beyond reasonable doubt or not. It has to also been known that the court can only convict on the strength of the prosecution case and not weaknesses of the defence. See: Makonda Maginga V R, Criminal Appeal No. 20 of 2011 CAT - MZA (unreported). The fourth ground was in regard to cautioned statement. The court misdirected itself relying on DW2's cautioned statement. The cautioned statement was never received into evidence, therefore could not be relied on. But even if it was to be received into evidence still this evidence would have required corroboration since it was that of co­ accused. Another point examined is that of PF3 raised by Mr. Medalakini when submitting in support of the appeal. PF3 issued to PW1 was admitted into evidence without complying with the requirement of section 240 (3). of the CPA. The omission is so fatal and the only remedy is to discount this evidence. The evidence of PF3 admitted as exhibit Pi is thus discounted. See: Nyambura Kamaoga v R, Criminal Appeal No. 9 of 2003 (unreported), Mkumbo Hamisi V R, Criminal Appeal No. 24 of 2007, Saidi Mfaume V R, Criminal Appeal No. 39 of 2008 CAT-ARS (unreported) and Songambele's case (supra). This then left this Court with no sufficient proof regarding PW l's injury and extent sustained from the alleged assault. 14 Though this point was not raised but just for the sake of food for thought, I thought I should examine it as well. This is the evidence of PW3 and PW4 whose evidence was recorded after voire dire examination was conducted, and the magistrate was satisfied that the two could testify under oath. In conducting voire dire examination the magistrate was complying to section 127 (2) of the Tanzania Evidence Act, Cap 6 R.E. 2002. This is what section 127 (2) provides: "" Where in any crim inal cause or m atter a ch ild o f tender age called as a witness does not\ in the opinion o f the court, understand the nature o f an oath, his evidence m ay be received though not given upon oath or affirm ation, if in the opinion o f the court, which opinion sh all be recorded in the proceedings, he is possessed o f sufficient intelligence to ju stify the reception o f his evidence, and understands the duty o f speaking the trutH' The trial magistrate complied to this provision partially, since from long standing practice in place the magistrate was supposed to record those witnesses answers as well. See: Godi Kasenegela V R, Crimina! Appeal No. 10 of 2007, Augustino Lyanga V R, Criminal Appeal No. 108 of 199 and Mohamed Sainyeye V R, Criminal Appeal No. 57 of 2010 CAT-ARS (unreported). Records in this case does not reflect recording of answers, only questions and conclusion made by the trial magistrate that both witnesses understood the nature of oath. None compliance to the complete procedure makes the whole process incomplete and the evidence adduced by these two witnesses incompetent before the court. Though their evidence was not helpful to the case but it was necessary and important for the requirement of section 127(2) to be fully complied with since the magistrate had relied on it. Failure of which has rendered the evidence of PW3 and PW4 be expunged from the record. The record is left with only PW l's evidence which I have concluded was weak to ground conviction and that of PW2 which was equally weak. With the above finding, I thus join hands with the appellant and the respondent that the prosecution failed to prove its case beyond reasonable doubt. I therefore allow the appeal, quash the conviction and set aside the sentence. The appellant be released from prison forthwith unless lawfully held for other reasons. It is so ordered. Judgment Delivered this 02nd day of July, 2014 in the presence of Mr. Dickson Ndunguru counsel for the appellant and Ms. Amina Mawoko - State Attorney - for the respondent/republic. 16 17