20151009 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY ' ,(. AT DAR ES SALAAM ORIGINAL JURISDICTION CRIMINAL SESSIONS CASE No 80 OF 2011 REPUBLIC VERSUS GERALD SOSPETER MHANDO RULING Munisi, J The accused person, Gerald Sospeter Mhando, stood before this court charged with the offence of murder contrary to section 196 of the Penal Code, Cap 16 RE 2002. It was alleged that on 15/8/2010, at Tabata Chang'ombe area, within llala District, Dar es Salaam Region, the accused person murdered one Nasobile . ·• Kabola. To substantiate the allegation, the prosecution called five witnesses to substantiate the allegation. Allegedly, deceased met ·· his death when a group of robbers invaded the house in which he used to live with his fami~y and stole a number of items inclu~Jng mobile phones and in addition they attacked deceased who died soon thereafter due to hemorrhagic shock. · PWl was one Happin~ss Maiko, her testimony was to the effect that she and the accused person were lovers. In that respect in July 2010 they used to communicate with each other through her 1 ... two mobile numbers 0719689701 and 0765014432 while the accused numbers were 0655852029 and 07 62728991. In the month of September, 2010, while in Dodoma, she was telephoned by an unknown person who wanted to meet with her. She heeded and went to meet with him at a certain hotel, however upon reaching there she found herself arrested and her handbag and mobile phone impounded and taken to the Dodoma Central police Station where she was locked up. In the course she was interviewed and asked about her relationship with the accused person and was shown a photograph which she acknowledged and admitted knowing him. She was thus informed that he was been sought in relation to a certain murder and that she will remain under custody until he was located. Due to that she cooperated with the police to facilitate the accused's arrest. Subsequently trough a trap laid by the police PWl telephoned the accused person and agreed to meet in Dar es Salaam and it was in the process of meeting each other at Taba.ta area that the police arrested the accused person. PWl added that the accused person upon being arrested was beaten by the police. PW2, D/Cpl Erasto was the investigator of the case. His evidence was to the effect that among the assignments that he undertook as an investigator was to record witnesses' statements including those of Tumpe Kapola and Eunice Masele. Tumpe Kapola was the deceased' s wife whose statement had to be tendered in evidence under section 348 of the Evidence Act due to information received that she died before testifying in court. In the said statement which was read out loud in court, the said Tumpe 2 Kapola had in her statement claimed to have identified the accused person at the scene of crime that fateful night. In the course of his investigation, PW2 followed up the whereabouts of a Nokia phone alleged to have been stolen at the scene of crime which was using a Mobile SIM Card with No. 0715707600. In that regard he requested for detailed information from Tigo regarding the said hand set together with its IMEI number. After obtaining the report, it revealed that up to 14/6/2010 the chip with No. 0715707 600 was been used in it, however from 16/8/2010 a new chip with No. 0653252927 was inserted. According to PW2, this information enabled the investigators to locate the person who was using the phone by the name of Hamis Abdallah @ Karume. When arrested, the said Hamis Abdallah @ Karume claimed that he bought the said phone from a person he saved his mobile number by an acronym of '' Aa" and that they used to call each other. Through this number the accused person was traced until eventually a trap was laid by the police in collaboration with PW 1 who was his girlfriend and the accused person was drrested. After the arrest, PW2 recorded the accused's cautioned statement which was admitted in evidence as exhibit P6. · PW3 was SP Gerad Ngiichi, he supervised the Identification Parade which was conducted at Stakishari Police Station. Three witnesses attended the parade, ie Tumpe Kapola, Eunice Mwasele and Hamis Abdallah all of which identified the accused person. After the parade, he prepared a Register which was admitted as exhibit PS. 3 " PW4 was one Martin Mdoe from ·Tigo. His testimony was to the effect that he is the one who worked on the request by the police to obtain the call up list in respect of a mobile phone using SIM Card with No 0715707 600. His findings which he compiled in a · report showed that the said SIM Card with No. 0715707 600 was been used in a mobile phone with an IMEI No. 355208036953580 up to 14/8/201 O; however frmn 16/8/2010 the said phone storted using a different SIM Card with No 0653252927 up to 31 /8/2010 the period requested by the police. The Report on the print out call details from Tigo Company was admitted as exhibit P7. On being cross examined by Mr. Mapinduzi, learned counsel, he admitted that he only worked on the numbers given by the police which he did not know the persons who were. using them because the requirement for registering SIM Cards had not been put in place at the time. The last prosecution witness was Eunice Mwasele a daughter of the deceased person. Her evidence was to the effect that on the fateful day she is the one who opened the gate for her parents before they were attacked by robbers and her father died. She said she identified the accused person at the scene of crime and two weeks later she identified him in an identification parade conducted on 27/8/2010 at the police station. She insisted that she identified the accused through his looks and colour saying that he was tall and light complexioned. In court she also identified him · through the same description adding that he is the one who assaulted her mother. On been cross examined, she insisted that description she gave been general, adding that although she was 4 . put. under arrest and forced to kneel down but due to the electricity light that was illuminating the place she managed to carry out the identification. At this juncture, the prosecution closed its case. On 8/10/2015, Mr. Mapinduzi, learned counsel prayed to address the court on the sufficiency of the evidence before the court, arguing that it was insufficient to warrant calling upon the accused person to put up a defence. He elaborated that the accused person is facing a serious offence of murder and the evidence adduced by the five prosecution witnesses has not establish a prima facie case, he thus prayed for the court to make · . a ruling that the accused person had no case to answer. Addressing the issue of identification, the learned counsel contended that the relied upon evidence, particularly that of PW 1, statement of Tumpe Kapola and Identification Parade Register -exhibit P5 were all lacking because, it is glaring from the evidence that the incident occurred in the middle of the night and none of the identifying witnesses knew the accused before. Further, when being cross examined, PW 5 admitted that she was shocked and confused when the robbers invaded them, yet herself and her mother managed under those circumstances to identify the accused at the scene and ·Iater at the identification parade. Adding that this was done without having given any description or peculiar marks of the accused person which enabled them identify him, he cited the Court of Appeal cases of Aziz Mohamed and another V Republic, Criminal Appeal No. 15 of 5 2006 and Omari lddi Mbezi and Others V Republic, Criminal Appeal No 227 Of 2008 (both unreported) to support his stance that there was no credible evidence to support the alleged identification. On another score, the learned counsel challenged the claim that there was a mobile phone stolen from the scene of crime which was sold to one Hamis Abdallah arguing that there was no evidence adduced to back up the claim that such phone existed. He thus argued that in the absence of such phone being tendered in evidence the claim cannot stand. With regard to the variance on the date when the identification parade was conducted whereby PW3 and exhibit P5 alleged that the same was done on 27 /10/2010 as opposed to 27/8/2010 claimed by PW 5; the learned counsel argued that the disparity constituted a serious anomaly which rendered the alleged identification unreliable. With regard to exhibit P6 -the cautioned statement, the learned counsel argued that in the absence of any other evidence, if it were to stand alone, in law it requires corroboration to sustain a conviction which is lacking. He thus argued that there is no evidence sufficient to require the accused person to be called upon to answer the charges of murder he is facing. Consequently he prayed the court to rule that the accused person has no case to answer and acquit him. On his part, Mr. Kweka, resisted the submission by Mr. Mapinduzi arguing that the evidence adduced by the Prosecution was 6 sufficient to warrant calling upon the accused person to defend -himself. - Canvassing the evidence adduced - by the five prosecution witnesses, he argued there is ample circumstantial and direct evidence comprised of oral and documentary evidence to connect the accused person with the commission of the murder charged. He elaborated that it is clear from the testimonies of PW 1 and PW 5 together with exhibit P7 that the arrest of the accused person as one of the culprits in the commission of the murder was unfolded following a call details printout from Tigo which revealed that the stolen phone had made calls after the incident. The report gave the numbers which_ were called and eventually facilitated the arrest of one Hamisi Abdallah who had bought and through the latter the accused person was arrested. With_ regard to the issue of identification, the learned State Attorney argued that the evidence of PW5 and exhibit P4 - the statement of Tumpe Kapola which was admitted in evidence under section 34B of the Evidence Act due to the latter's death together with the Identification Parade Register - exhibit P5, they clearly established that the accused person was adequately identified at the scene of crime. Commenting on the variance of the dates when the parade was conducted, Mr. Kweka conceded to the anomaly however, he hastened to state that the same which pertains only to the disparity on the dates the parade was conducted is of no much consequence because it does not go to the root of the matter. With regard to the cautioned statement - exhibit P6, Mr. Kweka was emphatic that its contents amounted to a confession and 7 that when taken together with the rest of the evidence it was sufficiently corroborated. He thus prayed for the court to rule that the accused person has a case to answer. I have given due consideration to the lucid submission by both counsel and at the same time have thoroughly· scrutinized the evidence adduced by the prosecution evidence. It is trite law that at this stage of the trial the duty of the court is to assess whether directing its mind properly to the law and the evidence so far adduced could convict if no explanation is offered by the defence. The Eastern African Court of Appeal in ·the case of Ramanlal Trambaklal Bhatt V R (1957)1 EA 332, while discussing · what amounts to primafacie case observed:- (iJ "The onus is on the prosecution to prove its case beyond reasonable doubt and a prima facie case is not made out if, at the close of the prosecution, the case is merely one "which on full consideration might possibly be thought sufficient to sustain a conviction. (ii) The question whether there is a case to answer cannot depend only on whether there is some evidence irrespective of its credibility or weight, sufficient to put the accused on his defence. A mere scintilla of evidence can never be enough, nor can any amount of worthless discredited evidence." In the light of the above authoritative decision, the question I need to answer is whether there is credible evidence to require the accused person to answer the charges preferred. Mr. Mapinduzi, 8 I j learned counsel has strenuously argued that there is no evidence whatsoever to justify calling upon the accused to defend himself, on the other hand, Mr. Kweka, learned Principal state Attorney has taken the contrary position. It is glaring from the evidence presented that the fateful incident which resulted in deceased' s death occurred in the middle of the night after O1.00am, this is apparent in PW5 and the statement of Tumpe Kapola -exhibit P4. In tha_t regard there is · no doubt the circumstances were unfavourable, as such any alleged identification has to be tested within the guidelines set in the case of Waziri Amani V R, {1980) TLR 250. In addition, for the identification to bear any credence, the identifiers have to provide a clear and detailed description that enabled them to identify the accused person at the scene of crime before proceeding to the identification parade where they managed to identify the accused person. From the testimony of PW5 and the statement of Tumpe I have not been able to see a description or distinctive features which made them distinguish the accused from many other people hence carry out positive identification in the identification parade. Indeed before the court PW 5 repeated the general description used to the effect that the accused person was tall and of light complexion. With respect, such description leaves a lot to be desired in that the same fits not only on him but so is the case for so many other people. The law is very clear that such description is very wanting and undesirable as per many Court of Appeal cases including the Azizi Mohamed case cited to me by Mr. Mapinduzi. As such the identification done by PW 5 and the late Tumpe is in law without foundation thus 9 . redundant. Additionally, there was the issue of the variance of the dates on which the identification parade was conducted, while I . agree with Mr. Kweka that in a befitting case lapse of time might explain such a discrepancy, in a case such as the present one where the accused person was a complete stranger to the identifiers and no description was stranger was given, the anomaly cannot be taken lightly. The only other person who participated in the parade whose evidence would have been useful if called by the prosecution was Hamis Abdallah, the prosecution however opted not to call him. It is apparent that the latter was instrumental in the arrest of the accused person as he is the one who allegedly bought the deceased phone. Failure to call him attracts an adverse inference against the prosecution because no explanation was provided regarding his whereabouts or failure to come and testify. (see Aziz Abdala V R (1991) TLR 71 ). Having found that the identification evidence was incredible, the other piece of evidence available is the call print out report which however did not connect the accused person with the phone alleged to have been recovered from the scene of crime nor was the phone itself produced in court so as to invoke the doctrine of recent possession. It was glaring that the prosecution failed to tender the alleged stolen phone or even call Mr. Hamis Abdallah who purportedly bought it from the accused person. Under the circumstances I do not see how one can connect. the accused person with the said phone in the absence of the slightest of evidence establish its existence. As the evidence of PW 4 showed 10 • I' his analysis dealt only with numbers not names so he could not tell .· the persons who were operating the said numbers. The only remaining piece of evidence was the exhibit P6, the accused's cautioned statement. This one cannot detain me much for. the simple reason that it is settled law that for it to sustain a conviction, it requires corroboration. The question is whether having found as I have already found herein above that there is no credible evidence to connect the accused with the nonexistent phone and that the identification evidence is . insufficient, there is still material evidence to provide corroborative evidence to exhibit P6. With respect my answer is undoubtedly in the negative. Consequently for the foregoing reasons, I am in agreement that having directed my mind properly to the law and the evidence adduced by the prosecution witnesses, I am satisfied that the same has not established a prima facie case to require the accused person to be called upon to put up his defence in answer to the charges of murder preferred against him. Accordingly under the Provision of section 293 of the Criminal Procedure Act, I found that the accused person, Gerald Sospeter Mhando has no case to answer and I acquit him of the case of murder he is charged with. The accused is thus to be released forthwith unless otherwise la 11 9/10/2015 Court: Judgment delivered in open court in the presence of Mr. Kweka, learned Principal State Attorney for the Republic and in the presence of Mr. Mapindu · arned counsel for the accused - per~9n . ~_pp is also present th·s 9/10 015. d%:of.' ", /}/o ~ · . ;-,,, ~r.g -,_ . A.A. Mu isi 17ffv-,/1/ 12?-•-t;-:-.r;::::,.C:':\. 1/J:" 1~ ·, '.li.c'r,.",- ·i- .• ...}, , :, JUDG Ji~~- ~~\;t: ~~~jJ~~t . ;~ i r,1-, .. ,"·•cc• , •. • t )J , ;,cc ''ti ,. ·,J 9 /10 / 20 5 '~?,\JJ:t::;_S~!w{~golai Mshana and~ajabu Dege •re here y th~rrk:e-d.J6Wtti~ir service an ccordingly disch~ u 12