20151127 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM (APPELLATE JURISDICTION CRIMINAL APPEAL NO. 97 OF 2015 (From Temeke District Court Cr.Case No. 210 of 2012 -Hon. Kalli, PRM) 1. MOHAMED HASSAN ...................................... 1 ST APPELLANT 2. JAFARI SAID ................................................ 2ND APPELLANT 3. HASHIMU ATHUMANI ................................... 3RD APPELLANT 4. DAUDI KAYANDA .......................................... 4TH APPELLANT VERSUS THE REPUBLIC ................................................ . ltESPONDENT Last order: 2sth September, 2015 Date of Judgment: 2ih November, 2015 JUDGMENT FELESHI, J.: In the District Court of Temeke at Temeke, the appellants were charged with armed robbery: contrary to· section 287A of the Penal Code, [CAP. 16 R.E, 2002]. They were held liable, convicted and each was sentenced to thirty (30) years imprisonment. It was alleged that, on 14/01/2012 at about 02:00am at Mashine ya Maji No. 5 area within Temeke Municipality in Dar es Salaam City, the appellant stole cash money amounting to Tshs. 1,000,000/=, one mobile phone make Blackberry valued at Tshs. 1,000,000/=, one laptop make Dell valued at Tshs. 600,000/=, one laptop make Dell valued at Tshs. 1,200,000/= and one music system make LG valued at Tshs. 1,000,000/=. It was further alleged that, in the same incident the assailants stole one Page 1 of 11 antenna valued at Tshs. 25,000/=, four speaker of music systems make LG . valued at Tshs. 500,000/=, one DVD Desk make LG valued at Tshs. 400,000/= all valued at Tshs. 5,725,000/= the properties of ELIZABETH NYAfvlBIBO and that before such stealing, they threatened cut one ELIZABETH NYAMBIBO with a machete in order to obtain the said stolen properties. Aggrieved, the appellants preferred this appeal on 20 grounds: six grounds for the 1st appellant, five grounds for the 2nd appellant, four grounds for the 3rd appellant and five grounds for the 4th appellant. All the twenty (20) grounds of appeal, in my opinion, can however be consolidated into five (5) grounds namely:- 1. That, the trial Magistrate erred both in law and in fact by relying on incredible visual identification of PW2 against the appellants. 2. That, the trial Magistrate erred both in law and in fact by relying on un- procedural Identification Parade conducted by PW4 contrary to the rules and regulations of the Police General Orders No. 232. 3. That, the trial Magistrate erred both in law and in fact by relying on Cautioned Statements without the same been read to the accused in Court by its author/alleged maker. 4. That, the trial Magistrate erred both in law and in fact by convicting the appellants on the basis of the alleged properties of PW2 whose ownership were not identified and proved in Court. s. That, the trial Magistrate erred both in law and in fact by convicting in reliance to a retracted Cautioned Statement without corroboration. The hearing of the appeal was conducted orally whereas the appellants appeared in person while the Respondent/Republic was represented by Ms Neema Mbwana, the learned State Attorney. Addressing the grounds of appeal, all the appellants prayed for the grounds of appeal to form integral part of their submissions with prayer for their appeal to be allowed. Page 2 of 11 On her part, resisting the appeal, the learned State Attorney submitted that, the testimony by PW2 unmistakably proved identity of the assailants at the scene of crime as she saw the assailants through her window whilst inside when the culprits were outside while her watchman was surrounded by five people asking him to inform PW2 that the bandits were militiamen {walinzi wa amanijsungusungu}. Ms Mbwana further submitted that, the exchange of words initially lasted for about ten minutes. Besides, there was electrical light outside and that by the time they broke the door and gained entrance, there was electrical light at the corridor and that the exchange of words lasted for about an hour. It was for that reason the learned State Attorney argued that the circumstances met the threshold prescribed by the Court of Appeal of Tanzania in the case of Waziri Amani vs. Rep. [1980] T.L.R 250 especially at page 252. Regarding the Identification Parade, Ms Mbwana submitted that, the same was properly conducted in the purview of the decision of the erstwhile East African Court of Appeal in the case of Rex vs. Mwango s/o Manaa [1936] 3 E.A.C.A 29. In respect of uncorroborated Cautioned Statement, the learned State Attorney submitted that, it was the 4th appellant who mentioned his allies who all led the police to the custodian of the gun and properties. Furthermore, the Cautioned Statement was secured without torture and that the same was admitted in evidence after the trial Court had conducted an inquiry. Insisting on liability of the appellants to the charged Page 3 of 11 offence, the learned State Attorney cited the case of S (An Infant) vs. ~ Manchester City Recorder & Others ·[1969] 3 All E.R. 1230 where the Court observed that, the duty of Court to clear the innocent must be equally or superior in importance in its duty to convict and punish. Regarding reliance to statements against co-accused, the learned State Attorney submitted that, the evidence was obtained pursuant to sections 27(1) and 33(1) of the Evidence Act, [CAP. 6 R.E, 2002] which entitles a trial Magistrate to take into consideration the evidence given by a co-accused. In rejoinder, all the appellants reiterated what they stated in their grounds of appeal and prayed for the same to form integral part of their respective submissions. They also maintained their prayers for the appeal to be allowed for it is meritorious in law as the case was not proved beyond reasonable doubts, the standard required in criminal cases. Having considered the grounds of appeal and the Court record on one hand and the oral submissions by the appellants in person and Ms Mbwana on the other hand, the following are the deliberations of this Court in disposal the issue being whether the prosecution established its case beyond any reasonable doubt. As correctly submitted by Ms Mbwana, the testimony adduced by the complainant (PW2) regarding visual identification of the appellants at the scene of crime incriminates all appellants. This key witness did account at pp.23-25 of the typed proceedings how she managed to identify them. She Page 4 of 11 accounted as to the source of light both outside her house and inside the house which enabled her to unmistakably identify the appellants on the fateful date at the scene. Besides, the evidence adduced by PW2 and PW3 adequately established that they followed the prior conversations held by the appellants whilst still outside and also after gaining ingress inside the house where they demanded money from PW2 and she gave them Tshs.1,000,000/= after arguing with them before she urged them not to hurt her children. On being cross-examined by the 1st appellant, PW2 categorically said the culprit did not cover his face with anything and that enabled her make correct identification. PW2's general evidence in chief on how she identified the appellants can be drawn from page 23 of the typed proceedings: "My watchman called me. His name is Edward. He knocked the window of my room I saw him through window that he was surrounded with five people ... there was an electricity light. The watchmen called me mama mama ....they entered inside. I asked them what they wanted they told me they wanted money ... at the corridor there was electricity light. ... I told them not to harm my children ..... ! identified the three speakers, deck and the antenna. I was very smart in identifying you. The watchman told me hawa ni majambazi ... I was told to go to the identification parade ... ! identified these four accused. There were more than ten people at the identification parade. These are four accused in the dock (she touched them) these were found with the exhibit." On being cross-examined by all appellants, PW2 confirmed to have identified them at the scene. For example, she deposed the following at page 24 in response to the 1st appellant's questions: "I was awakened by your noises. There was electricity light I was very smart in identifying you. The watchman told me Hawa ni Page 5 of 11 Majambazi ...There was electricity in the collider which reached my bed room. I talked with you while you were at the door of my room. . .. I could identify the culprits ... ! talked with you for ten minutes at the window of my room .... I properly identified you when I talked with you bent with shame when I looked properly on you. I identified you physically you didn't cover yourself with anything feel a shame." All the above are crucial regarding visual identifications as underscored by the Court of Appeal of Tanzania in the landmark case of Waziri Amani vs. Rep.(supra) and the subsequent cases. Under the circumstances, I find PW2's evidence to have cogently incriminated all appellants on the charged offence. I -have no reason -to fault the trial court's findings on her reliability and credibility. Besides, what I can hold as regards to the testimony by PW3 LINA SWIRE (an eye witness) is that her relevance is relevant only in establishing the existence of the charged offence but, she did not identify the assailants after the invasion. She said, that was because she took a hide behind the cupboard. Her evidence therefore is collaborative to that limited extent. As regards the challenged evidence from the Identification Parade it was correctly submitted by the appellants, that the testimony by PW2 was clear that, the persons paraded in the Identification Parade did not resemble each other. That however, did not make her hold that she did not identify her assailants. Her analysed evidence above refers. In any case, a failure to parade resembling identification parade (Item 4) is a failure to comply with one of the requirements prescribed by the ·erstwhile East African Court of Appeal in Rex vs. Mwango S/O Manaa (supra) where Page 6 of 11 -----,-------- ---~ -- --- ··-------·-·---·- - - - - - - ~ ~ ~ the Court listed the prerequisites in conducting an Identification Parade 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. 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 parade, 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". Thus, in view of the cited case of Rex vs. Mwango S/O Manaa (supra) which was later followed by the Court of Appeal of Tanzania in Raymond Francis vs. Republic [1994] T.L.R 100 it is important to note Page 7 of 11 that identification parades at least should take care of those prerequisites. However, the fact that PW2's identification Parade Register (PF 186) in our case is not in the court record I scanned that vitiates the her evidence premised the Identification Parade. For that reason, that piece of evidence cannot considered in determining the appellants' fate in this case. Besides, the two Identification Parade Registers dated 22 nd January, 2012 (Exh.P2) where one Edward Stanislaus served as an identifying witness but he was not amongst the witnesses paraded in court by the Prosecution makes that piece of evidence too worthless and of no effect. Two quick observations in connection with the above evidence are: one, that, extra-judicial parade proceeding always is not substantive evidence. It is only admitted for collateral purposes and, in the majority of cases, is presented to corroborate the dock identification of an accused by a witness (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 and Yahaya Mussa Bisega v. The Rep., HC Cr.Appeal No.95 of 2015, Dar es Salaam Registry-Unreported). Two, it is pertinent to bear in mind that the thirteen (13) items listed in the cases of Rex vs. Mwango Manaa and Raymond Francis v. Rep., above, in my view, are more instructive and still not conclusive. They need realistic and objective application as they differ in terms of their vitality in ensuring to the compliance with the fundamental rights of both the accused and the victim or identifying witness. For example, items 1, 2, 3,6,10 and 12 seems to me to be more basic when compared with the rest Page 8 of 11 whose application still may be subjected to other conditions which may necessitate adjustments by those organizing identification parades to accommodate realities on the ground. Thus, having discredited the identification parade evidence, another challenged piece of evidence is that contained in the Cautioned Statements recorded by PWS D 7687 D/CPL MOHAMED on 16/01/2012 and 17/01/2012 from the 2nd & 4th accused (2nd & 4th appellants) respectively, whose Cautioned Statements ("P3" by the 2nd appellant and "P4" by the 4th appellant) are said to have premised the appellants' conviction. As these statements were not objected to by the 2nd and 4th appellants at the tendering and admission, as shown at page 32 of the typed proceedings, and they provide detailed account on how all appellants took part in ransacking PW2's properties I am inclined to share with the trial court's findings and find these statements are nothing but their true account of what they did at the scene. The statements were therefore, in my unfeigned opinion, rightly relied upon to corroborate PW2's evidence. Besides, I take a note to observe that the same evidence could still premise the appellants' conviction as per the Court of Appeal of Tanzania decision in the case of Hatibu Gandhi & Others vs. Rep.[1996] TLR 12 where it was held that:- "{vi) A conviction on a retracted uncorroborated confession is competent if the court warns itself of the danger of acting upon such a confession and is fully satisfied that such confession cannot but be true. "{vii) A retracted uncorroborated confession, if truthful, can corroborate other evidence against the confessor". Page 9 of 11 ,. The last issue is in respect of proof of ownership of the alleged stolen . properties. PWl and PW2 evidence when read together with that of PWS and the 2nd and 4th appellants' confessions in Exh.P3 and P4 leaves no doubt that the robbed properties were well mentioned and latter identified at by PW2 at the recovery. The application of the doctrine of recent position was therefore well placed and is in line with the decision of the Court of Appeal of Tanzania in the case of JOSEPH MKUMBWA & ANOTHER vs. THE REPUBLIC, Criminal Appeal No. 94 of 2007 (Unreported) which was cited in the case of ABDI JULIUS@ MOLLEL NYANGUSI & ANOTHER vs. THE REPUBLIC, Criminal Case 109 of 2009 (Unreported) whereas the Court observed inter alia that:- "For the doctrine to apply as a basis of conviction, it must be proved, first, that the property was found with the suspect, second, the property is positively proved to the property of the complainant, third, that the property was recently stolen from the complainant and lastly, that the stolen thing in possession of the accused constitutes the subject of the charge against the accused. It must be the one that was stolen/ obtained during the commission of the offence charged. The fact that the accused does not claim to be the owner of the property does not relieve the prosecution of their obligation to prove the above elements". From the above, I am inclined to agree with the trial court's findings that the prosecution, as submitted by Ms. Mbwana, established its case to the required standard. The appellants' appeal is thus non meritorious and is hereby dismi =--:--· "ts e .......,..--.-.., Both conviction and c e nee are !.,. upheld. Order ~~e::""' ~ ·t.- \"-...l HI -.27/11/2015 .,b :z:· ,"< Page 10 of 11 • Judgment delivered in chambers this 27th day of November, 2015 in presence of the appellants in person and Thomas, M.-, learned State Attorney for the Republic/Respondent. Right of Appeal is explained. Page 11 of 11