20151120 TZHC Dar es Salaam2

. ··:·:;··"•:"f~-,...... ;._ '. \. . . }:~/'j; ;.,.~·" •• !". ·,, ~:' .v; . , IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 43 OF 2014 (From Morogoro District Court Cr. C No. 377 of 2012 -Hon.A. Kimaze- RM) MANENO s/o JUMA ............................................... APPELLANT VERSUS ·THE REPUBLIC ....................................................... RESPONDENT Date of Last Order: 21 st September, 2015 1 ::-. Date of Judgment: 20th November, 2015 JUDGMENT FELESHI. J.: In the District Court of Morogoro at Morogoro, the appellant and!two others, that is, SALEHE OMARY @ CHAMCHUU and AHMAD JUMA were all charged as 1st to 3rd accused persons respectively, with Armed Robbery contrary to section 287A of the Penal Code, [CAP. 16 R.E, 2002]. It was alleged that, the accused persons jointly and together, on 13th day of August, 2012 about 02:00 hrs at ARC HOTEL, NANENANE area within the Municipality and Region of Morogoro, did steal one computer make DELL valued at Tshs. 850,000/=, the property of ARC HOTEL and that, before and after such stealing, they threatened one EMMANUEL s/o MAFURU by using a bush knife (panga) in order to obtain the said property. All .the accused persons pleaded not guilty. They were tried. At the closure of the prosecution case the 2nd and 3 rd accused persons were Page 1 of9 - ..... .. -- ;. .. acquitted for the prosecution failed to establish a prima facie against them. Ori the other hand, the appellant was convicted of the charged offence and sentenced to 30 years imprisonment. Aggrieved, he has preferred this appeal on six (6) grounds namely:- 1. That, the trial Magistrate erred both in law and in fact by convicting the appellant with incredible visual identification and by upholding the un procedural identification without prescribing the amount of light at the scene of crime by mentioning the number of electric bulbs for a sensible visual identification between PWl and the appellant. 2. That, the trial Magistrate erred both in law and in fact by predicating conviction against the appellant without proving their case including tendering cartridges (ammunitions) of the gun to which was said to be discharged from the appellant's body if it is true that he was shot with a gun and a bush knife "panga" which was said to have been used to threaten a watchman as said by PWl. 3. That, the trial Magistrate erred both in law and in fact by convicting the appellant with uncorroborated evidence, since the prosecution side failed to call an independent witness who is a street chairperson who was present during arrest of the appellant. 4. That, the trial Magistrate erred both in law and in fact by convicting the appellant without sufficient proof of their case through identification of the blood marks through a Government Chemist Report and finger prints in proving that the blood marks found at the scene of the crime was of the appellant and the finger mark found at the wall is of none else than the appellant. s. That, the trial Magistrate erred both in law and in fact by interring conviction against the appellant basing on a repudiated Cautioned Statement which was obtained beyond the prescribed time. 6. That, the trial Magistrate grossly erred both in law and in fact by rejecting the defense evidence that during the material date, he got an accident and that he went to his mother for a rest. The hearing of the appeal was conducted orally whereas the appellant appeared in person while the Respondent/Republic was represented by Ms Haika Temu, the learned State Attorney. Addressing the grounds of appeal, the appellant prayed for the grounds of appeal to form integral Page 2 of 9 part of his submission with prayer to add other three points that, one, he did not take part in commission of the offence two, that he was not identified; and three, the three watchmen, Hotel proprietor and the manager did not show up in Court to prove the appellant's involvement in the alleged tragedy. In response, supporting both conviction and sentence, the learned State Attorney submitted that, there was enough light that enabled PWl to identify the appellant and that there was a confrontation between PWl and the appellant. He cited a High Court decision in Kichele Mrange vs. The Republic [1983] T.L.R 158 where the Court held that:- "There was evidence that the complainants were not taken by great surprise when the appellants invaded their house for robbery and there was ample opportunity to identify them such that an identification parade could be dispensed with". In respect of the 2nd ground, the learned State Attorney submitted that, the Exhibits were admitted without objection thus arguing that, raising such an argument now amounts to an afterthought. Regarding the 3rd ground, Ms Temu argued, the paraded witnesses proved the case ' I beyond reasonable doubt and there was no need to summon the village chairperson. Besides, she submitted, PW3 witnessed the whole incident while in his house where the appellant had taken a hide. As to the 4th ground, she conceded that, the blood stains and finger prints were not taken to the Government Chemist for analysis, however, that does not affect the prosecution case. Addressing the 5th ground of appeal, Ms Temu submitted that, no inquiry was conducted thus an error Page 3 of 9 ,. for the trial Court to use the said piece of evidence in her findings. She cited Selemani Abdallah & 2 Others vs. The Republic, Criminal Appeal No. 384 of 2008 where the Court of Appeal observed to that effect. She thus prayed for Exhibit "PE1" to be expunged from record. Concerning the 6th ground of appeal, there was no evidence adduced by the appellant to prove that he contracted an accident which made him suffer the alleged injuries and that no PF3 was tendered as an Exhibit to that effect. Besides, there was no need to parade the three watchmen, hotel proprietor and manager as they went to the scene after the incident. Additionally, PW3 disposed that, at his arrest, the appellant· had found a hide in his house and that he was found underneath a bed. She cited the case of Amiri Mohamed vs. The Republic [1994] T.L.R 138 where the Court of Appeal of Tanzania underscored that:- "The conduct of the appellant of disappearing from his abode soon after the event of murder and his explanations show that he was responsible for the murder". In rejoinder, the appellant added that, the testimonies. by PWt and PW2 contradict themselves as regards to which part of the body was shot. He added, PW3 being his biological father and not a mere relative, he had no reason to hide. He urged his appeal to be allowed. Having considered the evidence on record and the respective submissions by the appellant and the learned State Attorney, the following are the findings of this Court in disposal. At the outset, as correctly raised by the appellant in his grounds of appeal also submitted by the learned State Attorney, the accused's Page 4 of9 Cautioned Statement was improperly recorded and admitted in Court. Being the case, the same cannot be relied upon in evidence. Consequently, the same has to be expunged from record as correctly argued by the learned State Attorney. Regarding the issue raised by the learned State Attorney that the appellant was found hiding in the house of PW3 thus arguing that, the appellant could not have sought hide in the house of PW3 if at all he did not take part in the commission of the charged offence, as correctly submitted by the appellant, the fact that the appellant was found in the house of PW3 (who is said to be the father of the appellant) cannot at any rate be construed to mean that he did so for the purposes hiding from the incident of armed robbery. If at all the appellant entered into PW3's house without PW3's consent meaning that, the appellant could have committed a Criminal offence (if any), yet, that other offence cannot be directly linked with the charged one of Armed Robbery. It is trite law that, no matter how weak the evidence of the accused, that cannot relieve the prosecution duty to prove the charge beyond reasonable doubts. That aligns with what was underscored by the Court of Appeal of Tanzania in John Makolobela, Kulwa Makolobela & Eric Juma @ Tanganyika v. The Republic [2002] T.L.R 296 where the Court held:- "A person is found guilty and convicted of a criminal offence because of the strength of the prosecution evidence against him which establishes his guilty beyond reasonable doubts". Page 5 of 9 A similar position was reiterated by the Court of Appeal of Tanzania in the case of Jaribu Abdallah v. Republic, Criminal Appeal No. 220 of 1994 where the Court underscored that:- " ......... Even if his defence was found to be weak, and even if he was found to be untruthful, the prosecution still had the duty to prove his guilty beyond reasonable doubt .......... ". After all, there is no piece of evidence proving that the appellant was arrested in the course of chasing him after he committed the charged offence, the chase which at last ended up recovering the appellant hiding underneath a bed in the house of PW3 thus linking the appellant with the charged offence of Armed Robbery. Besides, the appellant went into PW3's house on 13/08/2012 at 5:00hrs whilst accompanied with his wife where they said that the appellant was badly injured in a motorcycle accident. It is for that matter I find such an argument lacking merits thus dismissed. The two versions no matter their truthfulness are incompatible to each other. As to the issue of visual identification, it is not in dispute that the incident occurred at night hours at about 02:00hrs. The immediate issue is whether the appellant was properly identified at the scene of crime. The testimony by PWl was that, on the fateful date, while at his duty station he saw a shadow of people passing. This connotes that, in the first place, what was seen by PWl was a shadow of people and not the very persons. Furthermore, PWl added that, there was broad light of electricity, so many huge tubes light and super sport light. This witness added that, after Page 6 of 9 the shot against the perpetrator of Armed Robbery incident, he left the person inside the fence and parted to call his friend for help whereas on return, he found the person had fled. Notably, PW1 did not account as to the number of tubes light at the scene of crime, the intensity of the light, the distance from the identifying witness and the assailant as well as distance between the assailant and the source of light as well as the time he spent in identifying the appellant. This vitiated unmistaken identification as held in Waziri Amani v. R [1980] T.L.R 250 the Court of Appeal of Tanzania held at page 252:- "If at the end of his examination the judge is satisfied that the quality of identification is good, for example, when the identification was made by a witness after a long period of observation or in satisfactory conditions by a relative, a neighbour, a close friend, a workmate and the like, we think, he could, in those circumstances, safely convict on the evidence of identification. On the other hand, where the quality of identification evidence is poor, for example, where it depended on a fleeting glance or on a longer observation made in difficult conditions such as a visual identification made in a poorly lighted street, we are of the considered view that in such cases the judge would be perfectly entitled to acquit". [Emphasis supplied] Moreover, in Shamir John vs. The Republic, Criminal Appeal No. 166 of 2004 the Court of Appeal of Tanzania observed that:- "It is now trite Jaw that the Courts should closely examine the circumstances in which the identification by each witness was made. The Court has already prescribed in sufficient details the most salient factors to be considered. These may be summarized as follows, How Jong did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example, by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionallr, had he any special reason for remembering the accused? What interval had elapsed between the original observation and the subsequent Page 7 of 9 . . identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witnesses when first seen by them and his actual appearance? 1J , Additionally, regarding the tubes light present at the scene of crime, the Court of Appeal in Karim Ramadhani & 2 Others vs. The Republic, Criminal Appeal No. 113/2009 (Unreported) (Arusha Registry) held:- "What is on record is general statement that the witnesses identified the appellants with an assistance of seventeen tube lights. Under such circumstances, without description of the appellants either of their outlook or attire, the seventeen tube lights notwithstanding, one cannot with certainty say that there was no mistaken in the identification of the appellants". From the above then, the trial Court lacked legal justification to find the appellant guilty of the charged offence in persistence of the above pitfalls. Additionally, from the testimony of PWl EMMANUEL MAFURU (the sole eye witness), the assailant was strange to him. Under such circumstances, the prosecution ought to have conducted an Identification Parade to prove unmistaken identity even if the appellant was identified at the dock. This was held by the Court of Appeal of Tanzania in the case of MUSSA ELIAS & 2 - OTHERS vs. THE REPUBLIC, Criminal Appeal No. 172 of 1993 (Mwanza Registry) (Unreported) where the Court observed:- "It is a well established rule that dock identification of an accused has value only where there has an Identification Parade at which the witness successfully identified the accused before the witness was called to give evidence". Failure to conduct such an Identification Parade vitiated the prosecution case that the appellant was properly identified at the scene of crime. In a nutshell, the appeal has merits and is allowed. The conviction Page 8 of 9 ,., entered by the trial Court is quashed and the sentence is set aside. I further make order for the appellant to be released forthwith from prison unless otherwise lawful held in another lawful course. t: It is so ordered. E.M. FELESHI JUDGE 20/11/2015 Judgment delivered in chambers this 20th ay of November, 2015 in Page 9 of 9