20140905 TZHC Iringa2

lN THE HIGH COURT OF TANZANIA . - ATIRINGA · · APPELLATE JURISDICTION (Iringa Registry) DC CRIMINAL APPEAL NO. 33 OF 2012 (Original Criminal Case No. 119 of 2011 of the District court of Nj om be District at Nj om be · Before J.K.S. Hassan - S.R.M.) 1. COSTANTINO S/OMGAYA 2. JOSEPH S/0 MWINUKA ..... APPELLANTS 3. ONESMO S/0 CHAULA 4. GEORGE S/0 JOHN MAHUWI VERSUS . - THE REPUBLIC ..... ; ............................... RESPONDENT 1/8/2014 & 5/9/2014 JUDGEMENT MADAM SHANGALI, J. The appellants in this appeal namely COST_ANTINO S/0 MGAYA (1 st Appellant), JOSEPH S/0 MW,INUKA (2nd Appellant), ONESMO S/0 CHAULA (3 rd Appellant), GEORGE JOHN S/0 MAHUWI (4 th Appellant) together with one JO:H.N S/0 PAULO GAMA@PETER.werejointly . and togetfatr cl?,.aiged ., ' "' '."' ·. . 1 .· .. before Njombe~Qistrict .· . . . Court -. vvi.th . .one count of Ct)nspiracy to Co;rnmit. an Offence . . . . r;/ s 384 of the, Penal Code, ,Cap. ·16 and , . . four counts of Arme_d Robbery c/s 287 A of ·the Penal· Code, Cap: 16. At the end of the trial the _appellants. were found guilty and convicted on both ·counts but JOHN 'S/0 PAUL0 GAMA @ PETER who was the 5 th accused was .acquitted. On the first count the appellants were sentenced to serve 5 years term of imprisonment each while on the four counts o_f Armed. Robbery they were each . sentenced to- serve 30 years •of imprisonment. Dissatisfied with that decision the appellants have filed · this appeal. Initially each appellant opted to file his own appeal but following the application from. the ·learned State Attorney on 22/7/2013 .· this court . ordered for the consolidation of tl;ie appeals hence this (DC) Consolidated Criminal Appeal No. 33/2012. . There are several facts established by the prosecution evidence and not controverted or disputed by the defence side. To start with is the fact that this is a highway hijack case where several motor vehicles were hijacked by a good number of bandits equipped with machetes, clubs, axes and iron bars. They robbed the drivers, conductors and passengers while· threatening to kill them. According t9... the "':· evid.ence of PW. 5 Mikidadi Abasi :who .- 2 waS" ,the: driver: .-ofa·rnotorvehicle Reg1stration No·. T618·AVK which·.o·perates:·betweeri Njombe.:.. Bulongwa-- Makete ·r:onte, ,on. 10/5/2011.at about ·21 _hours he .was· driving the said motor vehicle:. ·when he reached ~t Usalule Village area close to 'the: bridge . he saw ·a certain motor· vehicle Land cruiser parked infront with:the lights off. That he decided to stop his motor-vehicle but suddenly a man holding a to'uch approached him· at the window and ordered him to switch off his car and lights.· . PWS realized that they were hijacked and there and then he saw other 4 bandits equipped with clubs and pangas ~.'""invading. the motor ·vehicle while ordering all passengers to alight from the motor vehicle. The bandits started to search the passengers while directing them not to stare at their faces. The bandits stole the passengers belongings including PW.S's Nokia phone worth 170,000/= and cash T.Shs.40,000/= which were fished from his pocket. Having searched and stole from him and other ~ passengers the bandits ordered the passengers to re-board the motor vehicle and remain inside. PW. 5 claimed to have identified 2 nd appellant (2 nd accused) who had a fresh wound on his face. PW.6 Joseph Kakwaya, was a conductor in the motor vehicle Registration No. T 618 AVK. He testified to the same effect that having been hijacked and ordered to 'switch off the car and lights he .saw about 9 armed bandits who qbarded the motor vehicle and started to search and ~teal .from -.. " t ' .·.., - · ..., .• . . ., he'•was--a5le -~to'' 'ide'riHfy''the > ;,i .,. . . . .<. f , ' ·- .;.. ,; . .~".·, " _, passengers. · That in that irtcid~nf 3 . .. . .. 1s_r appel~~t-. ('] st accused)'through··the. totch light -of another ,. t· :· .:han.dit-who happened to' torch ·him.• . .' . .. . ' ' I ·.. : PW-. r Menradi Nziku, the· Chairman of the Mganda - Vill 0 ge Security Committee testified to the effect that on , • 10/05/2011 at about 23.00 .hours he was informed by one . Samwel Chaula. about the incident. He rushed to the scene of . cnme and met several victims· who were robbed. · He. summoned several village militiamen including H~ruma Msigala (PW.2) and Geofrey Chaula (PW.3). They started a . n1anhunt to search for the bandits and stolen items. In their <.. • • • • ,. • search at -about 5:45 hours _ they met the ~ nd accused (_2nd · appellant) coming from the bush. They started to interrogate him. The 2 nd accused told. them that he was coming from Kipengere V1llage. He failed to pro.duce an identity card. They searched him and found him with an identity card/voting card of George John, 4 th accused (4th appellant). In further questioning the 2 nd accused told the · searching party that• George John is his physical brother. The 4 th accused was later arrested by the U salule Village Executive Officer following the PW. l's instructions. It is in the evidence of PW .1 that the 2 nd accused was taken to the Village Office where he was further interrogated and confessed to have committed the alleged offences in collaboration with 8 others persons whose names were duly listed and submitted to the police station .. . '· :-. ,. _ · 'J'he·.eviderrce tif1 FW.: 1 ?}so reveal that the sec9nd accused .. ~ 4 r f.' was: ;able :Jo )le.ad the .se~chin.g .party -to the hush when::,.he · · sh.owed several stolen items stolen fnnn the: pa,ss~ngers:; T.h~: items included sugar in a bottle, a.rte Lutende, two trousers and·one'Jacket 'which were identified by the victims. PvV.-2 and PW.-.3·testified on how they were called to accompany PW. l arid. started.·to: search for the bandits; only to saw the 2 nd accused c·oming from the bush and arrested him. In short they both . slip ported the testimony of PW. 1 .. : :'fhe other portion. of prosecution eyidence is that of.PW.4·, Ass/Insp. Cosmas} the police officer who conducted the i_dentification · ··parade.· The parade was conducted on· :-,-t 14/5/2011 at about 12.28 hours at Njombe Police Station. It contained nine (9) people randomly .chosen and there were .. four (4) identification witnesses namely Mikidadi Abasi (PW. 5), Joseph Kakwaya (PW. 6), Dea Mbilinyi and Asifiwe Sanga. In the parade each accused person was being identified at a time by one witness. According to the testimony of PW.4, the 1 st accused (1 st appellant) was identified by all identifying witnesses. The 2 nd accused (2 nd appellant) was identified by all identifying witnesses and the 3 rd accused (3 rd appellant) was equally identified by all witnesses. The 4 th accused (4 th appellant) was identified by only one identifying witness namely Asifiwe Sanga. The other identifying witnesses failed to identify him. ~ ln -his . te·stimony PW. 5· Mikidadi ~past., stated ,that ·he did ,. -~ '-- • • • . ... . : ·c..,,.. .• _._ • 5 not. identi(y,-3 rd 'accused -arid-4-t;h.'~ccU:sed in the identificati6t1·· . ~ . .parade. ·He·. identified orily 1 st ·accused and the 2 nd accused .. .i . . . PW.6 testified to the·effect that it was hi~f first time to see the _3 rd accused (3i·d appellant) and therefore he never •identified .-both· 3 rd , accused . and 4 th accused.· According to the , trial District ·court's record of · proceedings there wa:~ a serious confusion on the way PW.6 was adducing· his evidence and resp.anding to the cross-examination questions. -He ended up · ., confessing to the court that it was his first time to appear 1n · court and to give false evidence. Be as it may, there was evidence of PW.8 Isaya Mbwilo, ·who t~_stified.'to the effect that he was one of the people called to attend the identification parade by the police and that during the identification parade the accused persons namely .·.:•, Ones1no Chaula and George Mahuvi were duly identified by the witnesses. When this witness was asked to point out the said identified accused persons at the -dock, the witness pointed at 1 st accused Constantino Mgaya and 2 nd accused Joseph Mwinuka. PW.8 was not able to state who exactly identified the alleged suspects during the identification . parade. PW. 9, Simeni. Joseph was another independent person fetched by the police to participate in the identification parade. He claimed that doing the identification parade all accused persons from No. 1 - 4. were identified by the victims of the offence with the exception of the 5th accused pei,:son.- -. . l I ~- it'>••... ,- . 1• ~ .... r ._ · PW.10; Benso"n .--Lulairibo - ·was- arlother·~, independent person 6 ... picked ,by. the police t9 pa.rti<;:ipate :in t?e ·identification ,parade~·- · · · -;.fhi~, wit:q.ess:.-clajm.ed:'that it-wa~ :only;_the 2n.4 a,ccl.;].sed who. wa~ -. i<;i:entified. -:·in the: J:>at:ade. -He. ad.mitted. that. before. _the trial -Ois.1;1jct. ;Court the -2 nd accused was looking ,different from_:the · . d~yof conductingjdentificatiori parade. : Hie did.not elaborate.: ' ··. . . : .· .. ..., - . _ <' . . •r· • ... ,, :.-... The'-_other.-important evidence.·is that. of PW;7 D/Cpl. · -Tirpothy.. He recorded. the. .cautioned. statement of the 2 nd accu~ed-person on 12/5/2011. The cautioned statement was · ·admitted after a trial within trial ,and'·marked -exhibit P.2. PW.11, D/Sgt. Stanslaus was the investigator of the· case.· He te~tified-to the effect that on· I 1/5/201 l_at 10.00 a;m. the 2 nd accused and 4 th accused were questioned and .mentioned their · · 8·, collaborators. Bearing on information from the said two . ·accused persons the rest of the accused ·persons were arrested and charged. PW.7 also recorded the cautioned statement .(Exhibit P. 7) of the 4 th accused on 12 /5/2011 who confessed to . have participated in the commission of the alleged offences. In their sworn defences the accused persons categorically denied to have committed the alleged offences. The first accused (DW. l) stated that he was unceremoniously arrested by a police officer called Salehe on 11/5/2011 while walking along Matawe Road. That he w9-s whisked to the police station where he was joined in the alleged charges. He challenged the w;hole prosecution evidence and cla_.imed that there was no . ~ "'~- ..... :.:... ' ·. evidence to qbnnect him with the "'COrnmission··of.~tne·· alleged 7 . 9ff~:pces .. .:. Tp_~_ ·. 2-~~-- .~ccv~_e? . per~on,._ (DW..2) claim~c:! J4at,; on . ~.1-1 pI 20_ 1 l whil~ . ~t.. Mg~da \,:illage. heactii:ig to Kipe_ngere. . ... . Village . ' _at._around . 6.00_ hours . he was put..u:q.der. .._arre~ted . . . .l?Y . ' .a ,gr(?_11p of 7. people who. questioned him about the robbery incident ., and s~arteJJ . : to torture .· p.im. He . .denied . any . iny<?~vement in th~ al~egeq. robbery incident. but those people _ · .. Tefused Jo believe hi~; ;\s, a ~esult ·they took him to :th~ Police ..,.·.St;:3..tion . . where he . was equally ..interrogated ..and tortured. That . ' on , . i 4/5/2011 an )d~ntification parade was conducted and . was wrongly identified .by .some -·prosecution witnesses who __ claimed that he had a scar. on his face while his face has no sc;ar .' . :· He .. insi~ted that the _evidence against him was fab.rication and· Hes_; The 3 rd accused _person (DW.3) stated that he was arrested at his . home on 11/5/2011 . at 23 hours while sleeping. The polit:e searched his house while accusing him for committing robbery. offenc~s. That he was taken to the . . . police . station where an . identification parade was conducted anq wrongly identified _by one witness. He complained that there was no sufficient prosecution _evidence to connect him with the commission of the alleged ,offences . . The 4 th accused person (DW4) testified to the effect that . he was arrested by militiamen on 11/5/2011 at U salule Village on allegation that he was a sus~~ct in the alleged d highway _robb~ry.. incide..nt. Thatuh€,. was.,.taken, to the polic·e . • • , . ."i :.: ,"~ ' ... • • . : . • .. -~--.-.. , ¼!• .,_-;_.'!" • ·\,, . 8 station, .where· he was intens·e1y 'q1iestioned; tortured .in -ord·er t:o · admit and· show •the· stolen -items.; That he_ totally d.en'ied_ the allegations and refused to sign ·the documents prepared by the police ... Then· he was subjected to· the .. identificatlon parade where ·he·-was surprised to ·be_ touched by ·three people~ J:Ie .categorically denied to have committed the alleged offences and stated that there was no sufficient evidence against him. In brief, that was the prosecution evidence and defence story which resulted to the conviction of the · appellants on. both first count of Conspiracy and 'four ~-aunts of· armed robbery.· As I have pointed out above each appellant came out with a good number of grounds of appeals but having perused all of them I am certain that all can conveniently be condensed to one maj o·r ground of appeal namely whether the trial Magistrate erred in law and fact in holding that the prosecution discharged its burden of proof beyond reasonable dou_bts against the appellants. In the hearing of this appeal the 1st 2nd and 3rd ' appel~ants appeared in person and fended for themselves while the 4 th appellant was represented by Mr. Mponda, learned advocate. Ms. Maziku, learned State Attorney appeared for the respondent/ Republic. Both 1 st , 2nd and 3rd appellants gave a short,.but critical oral ~ubmission· in silppoFto(their . ..., . .. apP.eaJ's,-;f'~hE:¥ '. • .t;.· - :,.· eategorically ' 9 . ' ~ . '~ ' " -1 t .... - - ~ ... denied -to ·have. committed. the- alleged. offences~while . . .asserting , . · .· that. ~hey were wrongly ide1itified '·and convicted·· ori a hard to'. believe ·evidence· of. the prosecution ·side. . The··. jrc:f appellant went further and complained that the witrie·sses who were alleged. to have identified· him in the identification parade were not called to testify. He also complainedthat the alleged stolen items. said• to have been shoWf?- by the ·2n~ and 4 th - appellants ·. . · were not produced in . ·court.· He concluded that the trial · Magistrate wrongly relied on the very weak and insufficient .. . ' evidence of .prosecution side and convicted __them. Mr. Mponda, l~arned advocate for the 4 th appellant . ~iul;?mitted to the effect .that the charge sheet contains five counts but the pro~ecution side was· able to. produce evidence . .. :-:~-- . iri support . ..... ·. _._ . . of the 5 th count . only where PW.5 and PW.6 testified ..tb have been hijacked and robbed by bandits.· That evidence was also in relation to the testimonies of PW. I, PW.2 and PW.3. Mr. Mponda, stated that the 4 th appellant was arrested .. because of the claims from PW. 1 and PW. 2 that he was mentioned by the 2nd appellant. Then in that identification parade the 4 th appellant was identified by one Deo Mbilinyi, but the s~d Deo Mbilinyi was not called to testify before the trial court. Mr. M ponda degraded the evidence of PW. 5 for containing exaggerations and inconsistences because the witness claimed . that four motor vehicles were hijacked and robbed but. he stated that h~ saw only a Land. Cruiser motor vehicle. He-.al~o failed to mention the .registratioh ""nun1ber of · hi~ all~ged ·~tolen .1npbiie -i~4?..ne. .Mr. ¥pond_~ sub_m.itted that ~ the .testimonies ,,of .F?w~s. and PW.6 ' :- . should . be treated with .. caution because PW~s · claimed that the 2nd appellant was >, • I. holding a torch while. PW.6 stated that it was the 1st appellant who was h(?lding a torch;., In- general,· the learned advocate submitted to the effect that there was no, conducive and favorable condition for proper identification of the bandits in that night. Furthermore both - PW.5 and PW.6 were not able to :give arty description or details · of their assailants immedtately after the incident. He cited the case of Waziri Amani Vs. Republic (1980) 250. · He further contended that· even the identification parade was not properly conducted and the identifying witnesses like Dea Mbilinyi and Asifiwe Sanga were not called to testify. He insisted that the prosecution witnesses were not credible because the alleged stolen items which were allegedly to have ~ been shown ·by 2 nd appellant were not produced in court and even the identify card/voting card of the 4 th appellant found in possession of the 2 nd appellant was not produced in court. Regarding to the cautioned statement of the 4 th appellant, Mr. Mponda submitted that when the same. was about to be produced the 4 th appellant objected on the ground that it was obtained through torture. Nonetheless, the trial I "!~J!:::;f,~~'.:..,.. ,;-a -.'.'~:·' '.:. 11 ·Ma~strate. quic!rly :admitted i_t, _arbit~arily-with9ut c0nduc~ing an inquiry. He stated that where an ac_cused person.objects to the admissibility of a confession statement, the _trial .court should stop the proceedings and conduct a trial within trial or inquiry. He cited · the case of Mlangalikia Augustino _Vs . .Republic Criminal Appeal No; 3-18/2010 Mwanza Registry (un,reported). He :asked this 'Court to declare -the cautioned statement valueless and allow the appeal. Ms. Maziku, learned State. Attorney, having gone through the record of proceedings of the trial District Court and having - heard the grounds of complaints by the appellants, ~he opted ' to" :}hrow away the - sponge and · supported the appeal. She . ~- _stated that the appellants and Mr. Mponda, learned Advocate has said it all to the effect that .there was no sufficient and . . credible prosecution evidence · to prove beyond reasonable doubt the charges laid against the appellants. I totally and competently agree with the learned State Attorney. First of all there was no scintilla of evidence to establish the first c0unt of conspiracy let alone evidence to connect the appellants with that offence. Secondly apart from the particulars of offence and facts stated during preliminary hearing and probably sketchy hearsay evidence from some prosecution witnesses there was nothing to establish or to connect the appellants. with 2 nd , 3 rd and 4 th counts . of armed ... L; ... , fobbery:. ram per-plexed=on Ii.ow and why the. trial Resi~ent: 12 .· :rv'.lagisti-ate·..rUshed to:·convict and·-sentence ·the· app'ella.nts ori. 1 those .taunts ruthlessly. ,, . iAs already -'shown · above, · even the 5 th count wa:s not proved· .in acc·ordance .. with the required standard. The law provides that in ·criminal cases it is the duty of the prosecution . side to prove its ·case and the standard of proof is beyond all reasonable doubts. In · this case the credibility of witnesses like PW.1, PW.2, PW:3, PW:5 and .PW.6 was ·poor and shaky. The offence was committed during the. night and indeed the bandits were using torches. Therefore the conditions for proper virtual identification were missing, but yet PW. 5 and PW.6 claimed to have identified the bandits through the torch light of one 0£ the bandits. These witnesses were not able to give any description or details of their assailants immediately after, the incident and during the identification parade they fumbled. Even the conduct of the identification parade itself is not without complaints from the appellants. The appellants ~ c<:>mplained that they were not given their rights and information prior to the identification parade. As a result the identification parade was conducted contrary to the Police General Order (PGO) No. 232 issued by the Insp~·ctor General of Police by virtue of powers vested on him in terms of Section 7(2) of the Police Force and Auxiliary Service Act', Cap. 322, R.E. 2002.· See case of Elias Mtaju Torokoko Vs ~Republic ,,.Criminal Appeal No. 149/2002, · Mwanza Registry CA - 13 ~ t-,. .... . ,•, · . .'. ,\. ,. Apartfron1:the ~eak.,and--sketchy eviden~e,of PW. l,·PW.2,: ·.· PW.3 PW.-5-·and PW.6 there is no other cogent evidence to connect the appellants· 'with · the . alleged. offences. · It 1s surprising that even the items which· were said to· have been ·'found in possession. of 'the 2 nd · appellant· including the 4 th . appellant identity card/voting card were .not produced in court. I agree with Mr. Mponda that the cautioned statement :_. (Exhibit P. 7) have rio evidential value having been recorded contrary to the law. In· my considered opinion even the 2 nd appellant's · cautioned statement have no evidential value because if was- recorded out of time and contrary to Section 50( 1 )(a)· of the· Criminal Procedure Act. The Appellants were arrested on 11/5/2011 and their cautioned statements were recorded on 17/5/2011. It is also amazing that the cautioned statement of the 4 th appellant was admitted and used to convict him without being read over before the trial District Court as required by the law. To sum up, this is one of the poo_rly investigated cases, poorly prosecuted and haphazardly conducted by the trial Resident Magistrate. The conduct of the whole case suffered a serious deficiency in judicial objectivity and decorum . .. I am satisfied that _this appeal is meritorious. Both - . .. .. "•,.... 1: ,-:-..,., :appellants were ·wrongly . . convicted and. sentenced without. 14 sufficient and~ cogent prosecutioh evidence-. - Their:appeals· are-· hereby allowed.". The conviction against ~hem are ·quashed and sentences set -aside·. All appellants should -be· released from custody forthwith unless held on another different and lawful cause.- M. S. SHANGALI JUDGE 05/09/2014 .- Judgement delivered todate 5 th September, 2014 in the p~esence _of· Ms. Lilian Ngilangwa, learned State Attorney representing the respondent/Republic and in the presence of all appellants in person. Right of appeal explained. M. S. SHANGALI JUDGE 05/09/2014 15