20151120 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM . JAPPELLATE JURISDICTION) i, CRIMINAL APPEAL NO. 95 OF 2015 (From the Resident Magistrates' Court of Dar es Salaam at Kisutu in Criminal Case No. 20 of 2013 Hon. S.B. Fimbo, SRM) YAHAYA MUSSA BISEGA ............................................ APPELLANT VERSUS THE REPUBLIC ....................................................... RESPONDENT Date of Last Order: 4th September, 2015 Date of Judgment: 20th November, 2015 JUDGMENT FELESHI, J.: In the Resident Magistrates' Court of Dar es Salaam Region at Kisutu, the appellant herein and one ISSA SHABANI JUMA, 1st and 2nd accused respectively, were charged before the trial Court for two counts of armed robbery .... contrary to section 287A of the Penal Code, [CAP. 16 R.E, 2002] as . amended by Act No. 3/2011. • I For the first count, it was alleged that, on 10/11/2012 at Victoria Petrol Station within Kinondoni District and Dar es Salaam region, the accused persons stole Tshs. 20,000,000/= the property of Victoria Petrol Station. For the 2nd count, it was alleged that, on the same date and time, the accused persons stole USD 1600, Tshs. 300,000/=, one mobile phone make Sung sang valued at Tshs. 200,000/= the properties of COLBERT KILEO and that, before stealing, the accused persons threatened the victim with a gun in order to obtain the properties. Page 1 of 12 The accused persons pleaded not guilty. They were tried. Whereas the 2nd accused person was acquitted of both counts, the 1st accused (the appellant) was acquitted of the 2nd count but was convicted of the 1st count and sentenced to thirty (30) years imprisonment. Aggrieved, the appellant has preferred this appeal on ten (10) grounds namely:- 1. That, the trial Magistrate erred both in law and in fact by convicting the appellant relying on un-procedural visual identification of PWl and PW2 at the scene of crime while they stated to have been ordered to lie down at gun point. 2. That, the trial Magistrate erred both in law and in fact by convicting the appellant relying on retracted and repudiated Caution Statement "Exhibit Pl" which was un-procedurally recorded by PW6 after expiration of the basic period prescribed by law as the appellant was arrested on 24/11/2012 while the statement was recorded on 25/11/2012 after the appellant was smuggled into several Police Stations and arraigned in Court on 18/12/2012. 3. That, the trial Resident Magistrate erred both in law and in fact by convicting the appellant relying on untenable and un-procedural visual testimonies of PWl and PW2 while erroneously believing that the circumstances at the scene of the crime were conducive and favourable for a correct Identification. 4. That, the trial Resident Magistrate erred both in law and in fact by convicting the appellant by relying on a discredited pieces of evidence of PWl and PW2 who their general testimonies differed with their former statements they recorded at Police Station for failure to give proper descriptions including body structure, physical appearance, body height, physical features, complexion and attire contrary to the procedure of law. s. That, the trial Resident Magistrate erred both in law and in fact by convicting the appellant relying on the contradicted testimonies of PWl and PW2 who both stated to have been invaded by the appellant contrary to that by PW4 and PWS who both stated the people who invaded them were not in the Court. 6. That, trial Resident Magistrate erred both in law and in fact by convicting the appellant relying on Exhibit P2 ID Register and the un- procedural identification evidence of PWl and PW2 while the Identification Parade "Exhibit P2" was conducted by PWS contrary to the procedure of law as the participants were of different Page 2 of 12 body structures, height features, physical appearance, complexion and attire as approved by PW1 and PW2. 7. That, the trial Magistrate erred both in law and in fact by convicting the appellant relying on untenable pieces of evidence of PW1 and PW2 who both stated to have identified the appellant in the room (Police lock up/custody) and then they wrote their statements contrary to the procedure of law governing Identification Parades. 8. That, the trial Magistrate erred both in law and in fact by convicting the appellant by relying on contradictory testimonies of PW1, PW2, PW3, PW4 & PWS on the date of occurrence of the incident as PW1 and PW2 both stated the incident to have occurred on 09/11/2012 while PW3, PW4 & PWS stated that the incident occurred on 10/11/2012. 9. That, the trial Resident Magistrates' Court erred both in law and in fact by convicting the appellant while the prosecution failed to prove the charge beyond reasonable doubts as it failed to tender the alleged offensive weapons i.e. guns made pistol as PW7 stated ·that, when arresting the appellant, the appellant had nothing in his pocket. 10. That, the trial Resident Magistrate erred both in law and in fact by convicting the appellant while disregarding the appellant's sworn defence testimony which succinctly raises sufficient hypothesis about guilty of the appellant. The hearing of the appeal was conducted orally. Whereas the appellant appeared in person, the Respondent/Republic was represented by Mr. Costantine Kakula, the learned State Attorney. Addressing the grounds of appeal, the appellant prayed for the grounds of appeal to form integral part of his submission, adding that, PWl and PW2 could not give early versions to the policemen who first responded at the scene of crime. Besides, PWB who supervised the Identification Parade did not properly arrange the Identification Parade according to the laid down procedure. Additionally, PW6 did not record the appellant's Statement as testified in Court. In reply, Mr. Kakula learned State Attorney resisted the appeal arguing generally that, PWl testified that, the incident occurred at Page 3 of 12 12:00hrs, that is, during noon time and that, the assailants had their faces uncovered and that there was enough light for unmistaken identity of the culprits in conformity with what was underscored by the Court of Appeal of Tanzania in the case of Waziri Amani v. Republic [1980] T.L.R 250 where the aspects of light intensity, time spent and distance were fully articulated. Besides, Mr. Kakula learned State Attorney submitted that, the appellant was properly identified at the Identification Parade arguing that, raising that issue at this point is tantamount to an afterthought. Furthermore, though the appellant repudiated the Cautioned Statement, yet, the same was admitted after the trial Court had conducted an inquiry. Reliance to the Cautioned was sufficiently argued as held by the Court of Appeal of Tanzania in Jackson Daudi v. The Republic, Criminal Appeal No. 111 of 2002 (Mwanza Registry) (Unreported) where the Court underscored: "... A Court can act on uncorroborated, retracted confession and convict if it believes that the confession cannot but be true, provided it warns itself of the danger of acting on uncorroborated evidence .... ". Additionally, Mr. Kakula submitted that, there was no contradiction between the testimonies by PW1, PW2, PW4 and PWS as alleged by the appellant. Regarding the date of commission of the offence as between 09/11/2012 and 10/11/2012, the learned State Attorney argued that, as such, that was a minor contradiction that cannot go into the roots of the prosecution case as was once observed by the Court of Tanzania in the case of Mara mo S/ O Slaa Hofu & 3 Others vs. The Republic, Criminal Appeal No. 246 of 2011 (Arusha Registry) (Unreported) that: Page 4 of 12 " ... Minor contradictions, inconsistencies, abashments or improvements on trivial matters which do not affect the case of the prosecution should not be made a ground on which the evidence can be rejected in its entirety .... ". In rejoinder, the appellant reiterated to have been arrested on 24/11/2012 and moved from one Police station to another in a manner that he could easily be seen by people to temper a safe Identification in law. ·Besides, the -testfmoriy by PW3 was that -his Tshs~ 20,000~000/ = were robbed but in Court, he alleged that, the stolen amount was Tshs. 20,712,711/-:- and with9ut proof_as to the exact stolen_ amquntof money if _ at all stolen. Besides, the alleged firearm found in possession of the appellant was not tendered in Court in evidence and that, PW4 and PWS denied involvement of the appellant in the incident. It was from the above in composite the appellant reiterated his prayer that he is not guilty of the charged and ultimately convicted offences thus urging this Court to allow the appeal. Having considered the Court record and the respective submissions by the appellant in person on one hand and Mr. Kakula for the Respondent/Republic on the other hand, the following are the deliberations of this Court in disposal of the appeal. Starting with the issue of Identification, according to the testimonies by PWl and PW2, it is not disputed that, the culprits were strangers to the identifying witnesses. Being the case, watertight evidence as to how the Page 5 of 12 bandits were properly identified is pertinent in proving the charged offences. On the fateful date, the incident occurred at about 15:00hrs. It was the testimonies by PWl and PW2 that, after been invaded, they were ordered by the culprits to lie down. Thereafter, they were ordered to surrender some money and keys. The question to consider is whether the by lying down the witnesses were deprived of an opportunity to make a proper and correct identification for safe reliance in law. This question can fetch an appropriate answer from the evidence on record. PWl is on record to have deposed as follows at pages 12, 13 and 14 of the proceedings: "The customers were at the reception. They asked for the price of gas. I said the gas was Tshs.54, 000. After that they said "come here" I went to the reception, I went in then they grabbed my shirt, then ordered me to give the money for the sale of the gas. I gave Tshs. 162,000/=. There (sic) had ordered people at the reception to lie down and I did that.... i saw like three people. The said people are this one ... I identified two people one of the person I identified was the 1st accused, the other one is not here ... I identified you at the identification parade. You were more than you were more than twelve. You were standing somewhere wearing shirts other were wears (sic) T-shirts." On her part, PW2 deposed at pages 15 and 16: "... they asked me to give them more money. I told them, I did not have more money. And then they ordered us to lie down ... I can identify the 1st accused ... I have identified him because he came, though they were many but he was the one who ordered me to give the money. On 10/12/2012... I arrived there, stayed outside, later I was called and they told me to stay in a room. I found a lot of people in a line they ordered me to identify a person. I was able to identify two persons . ... I saw you for the 1st time at the crime scene ... after the attack I laid down. I marked your face. It was during the day so it was easy to identify them, they were many. Some were shot and some were dark, some were tall. Am sure of what I am saying ... " Page 6 of 12 In view of the above evidence, I am inclined to agree with the learned State Attorney and the learned trial magistrate who believed PWl and PW2 that, the condition for unmistaken identification was favourable to both PWl and PW2 identify the appellant. To me, as long as I have no grounds to fault the trial court's assessment on their credibility, the only thing I can do and I hereby do is to affirm her findings (see: Omari Ahmed v Rep. [1983] TLR 52, Ali Abdallah Rajah v Saada Abdallah Rajah & others [1994] TLR 132, Adventina Alexander v Rep., Cr. - - - - - - -Appeal - No.-- -134 -of- 2GG2 -(CAT -unreported), -Ex.G.3205 -P-C- Yassin- - - - __ _ Ramadhani v. Rep. HC Cr Appeal No. 176 of 2014 and Salehe S/O Mohamed v. Rep.,HC Cr.Appeal No.157 of 2014 both from Dar es Salaam Registry-unreported). Since extra-judicial parade proceeding is not substantive evidence but is only admitted for collateral purposes, in the majority of cases, brought in to corroborate the dock identification of an accused by a witness, I am contented that the evidence adduced by PWl and PW2 to tell how they identified the appellant during the identification parade as per Exh.P2 in the present case therefore corroborates their evidence on what happened at the scene of crime and their identification against the appellant (see: Moses Charles Deo v. Rep. [1987] TLR 134 (CA) and luma Rashid and Another v. Rep., HC Cr.Appeal No.144/1990, Tabora Registry- Unreported). Therefore, if there were other witnesses at the scene, including PW4 and PWS, who failed to mark and identify the appellant, that in my Page 7 of 12 unfeigned opinion, explains how each witnesses' positioning and degree of panic may differ. Besides, that possibility does not deny other witnesse(s), who were well positioned or did not extremely panic, from making his/their identification on what was happening at the scene through-seeing, hearing or perceiving in terms of section 62 of the Evidence Act, Cap.6 R.E.2002 and in case of material inconsistencies obliging the trial to resolve the contradictions or inconsistencies as per the decision of the Court of Appeal in the case of Mohamed Said Matula v. R [1995] TLR 3. By virtue of Exh.P2 and the evidence deposed by PWB, as aforesaid, I am contented that the Identification Parade was compliant to the requirements supposed to be met in conducting an Identification Parade according to the Police General Order (P.G.O) No. 232 issued by the Inspector General of Police by virtue of powers vested on him in terms of section 7(2) of the Police Force and Auxiliary Services Act, [CAP. 322, R.E. 2002]. These Rules are substantially the same as the Instruction for identification Parades discussed and approved in the case of Rex v. Mwango S/O Manaa [1936] 3 E.A.C.A 29 and followed by the Court of Appeal of Tanzania in the case of Raymond Francis v. Republic, [1994] T.L.R 100 where in the former case, the East African Court of Appeal made reference to Kenya Police Orders No. 15/26 which received approval of the then Chief Justice of Kenya in which they were reproduced in extenso that:- "INSTRUCTION FOR IDENTIFICATION PARADES. 1. That the accused person is always informed that he may have a solicitor or friend present when the parade takes place. Page 8 of 12 : 2. That the officer in charge of the case, although he may be present, does not carry out the identification. 3. That the witnesses do not see the accused before the parade. 4. That the accused is placed among at least eight persons, as far as possible of similar age, height, general appearance and class of life as himself or herself. 5. That the accused is allowed to take any position he chooses, and that he is allowed to change his position after each identifying witness has left, if he so desires. 6. Care to be exercised that the witnesses are not allowed to communicate with each other after they have been to the parade. 7. Excludes every person who has no business there. -8. Make a-careful note after each witness leaves tHe pa-rade, recording - - - - - - - - whether the witness identifies or other circumstances. 9. If the witness desires the accused walk, hear him speak, see him with his hat on or off, see that this is done. As a precautionary measure it is suggested the whole parade be asked to do this. 10. See that the witness touches the person he identifies. 11. At the termination of the parade or during the parade asked the accused if he is satisfied that the parade is being conducted in a fair manner and make a note of his reply. 12. In introducing the witness tell him that he will see a group of people who may or may not contain the suspected person. Don't say, 'Pick out somebody' or influence him in any way whatever. 13. Act with scrupulous fairness, otherwise the value of the identification as evidence will depreciate considerably". In view of the evidence adduced by PWl and PW2 when considered together with Exh.P2 I am contented that the learned trial magistrate was well guided to bank on that evidence to convict. In the case of MUSSA ELIAS & 2 - OTHERS vs. THE REPUBLIC, Criminal Appeal No. 172 of 1993 (Mwanza Registry) (Unreported) the Court of Appeal of Tanzania held that:- "It is a well established rule that dock identification of an accused has value only where there has an Identification Parade at which Page 9 of 12 : · the witness successfully identified the accused before the witness was called to give evidence". The remaining piece of evidence worth to address is the appellant's Cautioned Statement. This piece of evidence though repudiated and or retracted, upon a proper inquiry and after the Court warns on the danger of relying on such piece of evidence suffices to earn a conviction in law. It was the testimony by PW6 that the appellant was arrested on 24/11/2012 around 14:30 at Canadian Bar in Tegeta and he gave his Cautioned Statement at Oyster Bay Police Station on 25/11/2012 from 08:35am to 9:40am. The appellant's voluntariness to offer his Cautioned Statement (Exh.Pl) was inquired into by the trial court and I have not doubted its findings. As to its evidential value, I was constrained to read it. Pa rt of it states: " ... baada ya siku kama nne hivi Omari alileta silaha aina ya pisto na kunikabidhi iii niitunze yeye anasafiri na atakaporudi tutafanya kazi. Mwanzoni mwa mwezi Novemba mimi na wenzangu waitwao kama ifuatavyo ambao ni- Meya, Omari, Man,Issa s/o Shabani na watu wengine wawili ambao mimi siwafahamu tulipanga kwenda kupora pesa Petroli Station Victoria ... Baada ya mipango kukamilika mnamo tarehe 10/11/2012 tulikutana majira ya saa 12.00hrs tulikutana kwenye Baa moja huko Buza na kulikuwa na gari aina ya Noah. Pisto ile ambayo nilikabidhiwa na Omari alishika yeye. Basi baada ya kupanga mipango yote waliondoka watu sita mimi nilibaki na watu wawili ambao hata majina yao siyafahamu. Sisi tulisubiri mpaka saa 16:00hrs ndipo walirudi na walipofika walitueleza kuwa wamefanya kazi lakini hakupata fedha nyingi wameambulia kidogo. Hivyo mimi nilipewa mgao wangu shs.50,000 / = na wale wenzangu walipewa hivyo . ,, h 1vyo .... It is apparent from the Cautioned Statement above that the role played by the appellant was that falling under section 22(1) (c) of the Page 10 of 12 •· Penal Code, Cap.16 R.E.2002. If what the appellant stated is nothing but his truth, then, his Cautioned Statement, regardless of the means it was obtained, must be examined in terms of Section 29 of the Evidence Act, [CAP. 6 R.E, 2002] which reads: "No confession which is tendered in evidence shall be rejected on the ground that a promise or a threat has been held out to the person confessing unless the court is of the opinion that the inducement was made in such circumstances and was of such a nature as was likely to cause an untrue admission of quilt to be made" [emphasis supplied]. - - ~ - - - - - Th is- position- of -the- law was- put into practice-by -Katiti, 3, -i A the -case- - - - - - of Josephat Somisha Maziku v. Republic [1992] T.L.R 227 (HC) where he held: "(i) While it is trite law that the condition precedent for the admissibility of a confession is its voluntariness, a confession is not automatically inadmissible simply because it resulted from threats or promise, it is inadmissible only if the inducement or threat was of such a nature as was likely to cause an untrue admission of quilt"[emphasis added] After examining that Cautioned Statement I have no doubt that that piece of evidence further corroborates the evidence adduced by PW.1, PW2 and Exh.P2. I am thus inclined to agree with the findings and decision made by the trial court against the appellant and also the submission made by the learned State Attorney in respect of the first Court. As the learned trial magistrate despite of finding the appellant guilty did not convict him, I hereby invoke section 366(1)(a)(ii) of the Criminal Procedure Act, Cap.20 R.E.2002 and convict the appellant and affirm the sentence passed against him by the trial court. It is for the aforesaid Page 11 of 12 ------------------------------------ , analysis the appellant's appeal is .hereby dismissed in its entirety. Order accordingly. Dated at Dar es Salaam this 20th November, 2015 ·M. FELESHI --------------;JUllGE----------------- ,· Judgment delivered in chambers this 20th day of November, 2015 in presence of Ms. Debora Mcharo, State Attorney and the Appella~t in person. Right of Appeal is explained. ~~ o\l~ r;_.::,-,Ci' )'~\ ,.,-, \~ 1(3 '.i -:J._ •l f . ._ \ ; \i . I ' . ' E. . FELESHI ~ : J: / .' JUDGE / 20/11/2015 Page 12 of 12