20151008 TZHC Tabora

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: KIMARO, J. A., MASSATI, J. A. And MZIRAY, J. A.) CRIMINAL APPEAL NO. 236 OF 2013 ZAKARIA KAZEMBE ••••••••••••••••••••••.•••••••.••.••.••••••••••••••••••••••••••••••••••• APPELLANT VERSUS THE REPUBLIC ••••.••••••••••••••••••••••••••••••••••••••••.•••••••••••••••••••••••••• RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Tabora) (Lukelelwa, J.) dated the 30th day of July, 2013 in Criminal Appeal No. 155 of 2011 JUDGMENT OF THE COURT . 6th & 8 th October, 2015 MASSATI, J.A.: The appellant, and three others were charged with one count of Robbery with violence contrary to sections 285 and 286 of the Penal Code. He and another were convicted as charged and sentenced to 30 years imprisonment. He appealed to the High Court which found that he:- "was properly convicted and the sentence of thirty years imprisonment was the statutory minimum" Aggrieved the appellant has now come to this Court. 1 The brief facts of the case are that on 13/12/2007 at around 9:00 p.m. PW1 was invited at a friend's residence at Ndembezi, in Shinyanga Municipality. PW1 was sent out on a motorcycle with PW3's son, to purchase some drinks. On their return, the party, comprised of PW1 himself (ALFAN 5/0 MOHAMED), PW2 ANATH D/O SAMSON, and PW3 VERONICA MAGANGA or mama CHENGE sat down to drink. No sooner had they started drinking than they were invaded by armed bandits. The bandits demanded and stole cellphones, a radio and video deck, all total valued at Tshs. 1,130,000/=, and vanished in thin air. The suspects were however, arrested between 13/12/2007 to 15/12/2007, and first appeared in court on 19/12/2007. At the hearing, four prosecution witnesses testified. PW1 narrated to the court how he and the party were invaded and terrorized by the bandits on 12/12/2007 and how they were made to part away with their cellphones, money and the radio, and thereafter reported to the police. PW2 repeated the same story. PW3 also explained how she was robbed of her money and her cellphones. According to PW3, she identified the appellant who also confessed to have committed the offence. PW4 E. 8752/SGT MICAH 2 investigated the case. He testified that PW3 identified the appellant to him. He also took and tendered a cautioned statement from the appellant. In his defence, the ·appellant testified that he was arrested on 13/12/2007 at a certain shop where he was trying to sell his cell phone to raise money for a fare to Mbeya to attend to his mother's funeral. The next day while at the police lock up, he was taken out only to see a man and a woman who were witnesses in the case, who purported to have identified him, and the cell phone, as theirs. Then he was tortured into signing a cautioned statement, for which he tendered the PF3 as his exhibit DEi. The trial court believed that the appellant was positively identified by the prosecution witnesses at the scene of crime and that this was corroborated by the appellant's own confession. The trial court also rejected the defence of alibi raised by the appellant. As we observed above, the first appellate court was also satisfied that the appellant was positively identified at the scene of crime and so properly convicted. Those findings are the subject of heavy attacks by the appellant. In his memorandum of appeal, he has raised six grounds of appeal but essentially they revolve around the evidence of his identification, which he 3 submits were problematic, and the circumstances in which the confessional evidence (ZKI) was admitted. On this, the appellant submitted that the exhibit was not properly admitted. He ended up by submitting that once Exhibit ZKl was expunged, the evidence of visual identification was properly scanned and found wanting there was no way his conviction could be sustained. For the reasons, the appellant prayed that his appeal be allowed. Mr. Juma Masanja, learned Senior State Attorney who appeared for the respondent/Republic, did not see it prudent to support the conviction and sentence. In his considered view, the cautioned statement (Exh ZKl) was admitted without an inquiry. This was wrong, he said. So he prayed that this exhibit should be expunged. He went on to argue that the remaining evidence was that of visual identification from PWl, PW2 and PW3. He criticised their evidence for not being preceded by description of the appellant prior to their sighting at the police station and in court. This was poor identification, and was not sufficient to found a conviction. Therefore, he prayed that the appeal be allowed. Given a chance to respond the appellant, had, understandably nothing useful to add. He simply reiterated his prayer that his appeal be allowed. 4 We think the crucial issue here is whether the prosecution case had been proved beyond reasonable doubt. We are aware that this is a second appeal. As such, this Court would not normally interfere with concurrent findings of fact of the lower courts unless it is clear that the two courts below, clearly misapprehended the evidence on record, and which led to an miscarriage of justice. (See SALUM MHANDO vs R. (1993) TLR. 170. The conviction of the appellant in this case is predicated upon two pieces of evidence, the evidence of visual identification, and that of the appellant's cautioned statement (Exh I) or (ZKI). The manner in which the cautioned statement of the appellant was admitted is reflected on pages 29-30 of the record, where PW4 is on record to have said that:- PW4 "On 14/2/2007, we interviewed the first accused and he confessed to be responsible for the commission of the offence and he mentioned the second and their 5 -Yes I pray to tender the confession of the first accused. Public Prosecutor- Yes honor, I pray to tender the confession statement of the first accused where he mentioned the second and third accused. Court - In respect with my view and with regard that the confession statement was taken by a police with legal authority and since the first accused had admitted it before the court, I hereby admit it and take it as exhibit number one hence its hereby marked as ZKI in support of the prosecution side". The record is not clear when was the appellant asked but if the court was referring to the paragraph prior to its order shown above this is what the court recorded:- ''After the confession statement being read to the first accused before the court the first accused has admittf!d his confession statement but he is praying that he admitted it after being ''arrested" (sic) by 6 police and after being informed by police that he will be given bail if he will confess'~ If this is the statement, there are two problems. First, normally in trying to clear such documents for admission in evidence, the accused's own words must be recorded not a summary of what the court thinks the accused meant. But secondly, even in that statement, the accused/appellant was raising the issues of inducement and harassment; thus negating the voluntariness of the statement. In such a situation, the most appropriate step would be to hold an inquiry or a trial within trial, to determine whether the appellant gave the statement by his own free will. Failure to observe these salutary rules of procedure, diminishes the legality of the existence of such evidence on record. Accordingly we agree with Mr. Masanja, that Exh I or ZKI, deserves to be expunged from the record, as we hereby do. The remaining evidence is that of visual identification. The law is now settled that evidence of visual identification should not be acted upon unless all possibilities of mistaken identity are eliminated and the court is satisfied 7 that such evidence is watertight (See WAZIRI AMANI vs R. -(1982) TLR. 250, MATESO vs R. (2013) I EA 183. It is equally settled law that in a situation where there was an invasion by a mob of armed bandits, positive identification is also necessary, AYUBU S/O ZAHARA vs R, Criminal Appeal No. 177 of 2004 (unreported). The issue then, is, did the witnesses in this case identify the appellant to the requisite standard? Let us examine what PW1, PW2 and PW3 and PW4 testified about identifying the appellant:- PWl said that he knew the appellant due to the offence committed on 12/12/2007 it was at night, at 9:00. PW2 also said she knew the appellant since the date of crime. Similarly, PW3 came to know the appellant since the date of committing the crime on 12/12/2007. It is therefore safer to conclude that these witnesses met the appellant for the first time on 12/12/2007. It was the question of evidence of identifying a stranger. 8 In such a case, the law demands that these witnesses should have given a description of the appellant to the police in their first report. But ·surprisingly PW4, the police officer, testified that PW3 mentioned the appellant's name to the police, a fact, not supported by PW3; who only told the court that she arrested appellant when he tried to sell the cell phone. Unfortunately still the cell phone which the appellant was trying to sell was neither identified nor tendered in court as an exhibit. The link between the intended item of sale and the robbery is not shown. Was this sufficient to enable PW3 to identify the appellant? We have serious reservations about the probative value of that piece of evidence, in as far as identification of the appellant is concerned. In our view the absence of clear description of the appellant prior to his arrest, such as to his facial appearance, type of clothes, etc. by the witnesses themselves, and then by the police to whom the description was given was a very serious omission (See R v MOHAMED B. ALLUI (1942, 9 EACA 72., AUGUSTINE KENTE v R. (1982, TLR. 122. The contradictions between PW3 and PW4 as to how the appellant was identified, and in the absence of an identification parade lends credence to the probability that these witnesses money made a dock identification of the appellant, which is reputably unreliable, unless preceded by own 9 identification parade (See MUSA ELIAS AND TWO OTHERS vs R., Criminal Appeal No. 172 of 1993 (unreported). In view of these serous misapprehension of the evidence on visual identification, we are forced to intervene. Contrary to the concurrent findings of those courts, we find that the evidence of visual identification against the appellant was not watertight. Accordingly the conviction of the appellant is not safe. For the above reasons, we allow the appeal. We quash the conviction and set aside the sentence. We order his immediate release from custody unless he is held there for some other lawful cause. DATED at TABORA this 8th day of October, 2015. N. P. KIMARO JUSTICE OF APPEAL S. A. MASSATI JUSTICE OF APPEAL R. E. MZIRAY JUSTICE OF APPEAL I certify that this is a true copy of the original. Z.A.~A DEPUTY REGISTRAR COURT OF APPEAL 10