20151029 TZHC Mwanza

IN THE HIGH CURT OF TANZANIA ATMWANZA 1 CRIMINAL APPEAL NUMBER 141 OF 2014 J (Original Criminal case Number 4 of 2014 of the District Court of Mwanza at Mwanza Before Mpaze RM) M~JITA SIMON ·AND ANOTHER .... .. APPELLAANTS VERSUS THE REPUBLIC ............................... RESPONDENT JUDGMENT 7.10.2015 & 28.10.2015 Matupa, J. Before the district court of Mwanza, at Mwanza the appellants were charged were and convicted of the offence of Robbery contrary _to section 287 of the Penal Code, as amended by Act number 3 of 2011. It was al_leged by the prosecution that on the 20~17 day December 2012 the appellants· together \Vlth another person who was acquitted after trial, did joint!y and together· steal one mobile telephone, from one Robert Mwanakatwe and immediately before the stealing they used a bush knife to ass·ault him. 1 ' . •I ., Briefly stated, the facts of this case are as follows. It was not seriously disputed that the complainant who happens to be a police officer, was assaulted in the fateful night as he was walking back home, 300 metres to his home. It was late in the night at around 22.30 hours (although the trial magistrate erroneously recorded the time as 10.30 hrs.) when he was l . accosted by one of his assailants who was dressed in a black II jacket, he was ordered to sit down and to produce everything ·"' . he had in his possession. They took a mobile phone from him and shillings (10,000/=) together with his identity card. As they were leaving, the complainant raised an alarm. His assailants reacted by silencing him with an attack using a bush knife, they injured him on his head. He fell unconscious. When he regained his conscious, he went to a street leader who helped him to go to hospital where he was treated. The matter was reported to the police where they started to trace the telephone. Again it is not seriously disputed that the same was traced tq one Iddphonce Warioba PW3. The later was arrested. It was alleged at the trial that upon his arrest, he mentioned the person who sold. the telephone to him. The appellants· together with another were arrested and were charged with the offence of armed robbery. 2 ~ .( Both at their trial and before this Court they have all protested their innocence. Despite of their protest at their trial, they were disbelieved and were convicted as charged and were sentenced to a term of thirty years imprisonment. Aggrieved with that decision, they have appealed to this Court on the following grounds. First they have both faulted the trial Court for invoking the doctrine of recent possession for two reasons; one it was based on an uncorroborated evidence of PW3, a person who had an interest to serve and two the investigator did not furnish adequate information that could connect them with. the possession of the telephone._ Secondly, Identification by the complainant was not a_dequate and thirdly that the caution sta_tement by the appellants was not properly received and admitted in evidence. Before this court the appellants appeared in person, they were not represented by counsel. Ms Ajuaye Bilishanga Senior State Attorney represented the Republi_c the Respondent. Both parties spent much of their time to address this Court on two issues, Identification and the doctrine of recent .procession. Let me dispose of the issue of identification which under .the- .circumstances of this case was an easy one. The complainant said that he was able to identi_fy · the second accused person as he once had prosecuted a case with him. 3 . . ... - ... ~.. . . . ' - . Apparently this accused person happens to be the first appellant herein Mwita Simon. The said appellant has taken issues with this identification, contending that if at all the complainant was able to identify him; he would have mentioned him at least to the authorities who met him flrst and took him to hospital. As it were, the mention of the appellants was done by PW3 after the telephone was traced to him. At no time before were they mentioned by the complainant. Not even in the statement he made to the police did he mention any of the appellants. All he said was that, he could remember them if they were to be shown him. The trial court was not entitled to believe the complainant on the issue of identification. We have also considered _the circumstances obtaining at the tir:ne the crime was committed. The available light at that night and the manner the complainant was accosted was not conducive for identification as it is claimed. It has been claimed that the first appellant was acquainted wlth the complainant as he once prosecuted a case with him. we· do not fifld this to be credible enough as the complainant did not mention that special case he handled with the appel_lant. The conduct of the complainant is not consistent with a person who was acquainted with the appellant. Given, that a police officer handles many cases, he was expected to say what was special with the case he handled with the appellant. The · 4 V · circumstances of the present case demanded an identification parade. From the foregoing reasons, I allow the third ground that from the circumstances of this case, it was not probable that the complainant was able to identify any of his assailants at the scene of crime on the material day: On the first and fourth grounds which we propose to deal with together, the appellants are contending that it was not correct for the trial court to invoke the doctrine of recent possession basing on the evidence of PW3 who they claimed, has an interest to serve. They also contend that the trial court lent undue credence to cautioned statements without warning itself of the danger after they were repudiated. At the outset, let me agree with the appellants that under the circumstances of the present case, it was aptly unsafe to rely on the evidence of PW3 without more, as it is true that the witness had a demonstrable interest to serve. He was found in his possession ' a contraband mobile phone which he had to explain away. The issue is, did he discharge that duty? May be at this stage we have to deal with two matters. First is the way the appellants were arrested. There was a contention as tu the date of their arrest, was it on the 3rd or 4th January, 2013? Whereas the complainants asserted that -they 5 were arrested on the 4th January after the statement were recorded on the 3rd January, the prosecution had it that they were arrested on the same day their statements were recorded. The trial Court believed the prosecution that they were arrested on the 3rd January and their statements were recorded on_ the same day. j : The· appellants were able to demonstrate in their defence that they suffered injuries while under custody and were able to produce PF3 forms which showed while they were under custody; they were treated for various injuries they purportedly sustained while there. The second observation ·1 have to make in this respect is the inordinate delay in sending the appellants to Court. The trial court was of the view that the appellants were arrested on the 3rd January 2013. Even with this date, the appellants had to endure incarceration for fifteen days until the 1gtn January, 2013 when they were first arraigned in Court. On the day they were sent to· court they had to get_ treat_ment for the -injuries. This is shown by the PF3 forms which were admitted as Pl AND P2 respectively. Lastly, even PW6 one of the investigators is quoted saying that; · "we interrogated him roughly in which .he told us that he is with his fellow Mussa· Werema. We also arrested them at the police.,✓ ( P 26 of the typed proceedings.) 6 V. And this brings us to another issue, where were the appellants arrested? According to the prosecution witnesses, they were arrested at the police station as they were following up their case which they had filed at the police station. This is a conjecture we have to follow up with utmost caution. The app·ellants had their own stories to tell. Mwita Simon contended that he was summoned from his home to the police post where he was informed of accusations in respect of the present case. \ , : ~. When he denied he was arrested, interrogated and was put under custody. Mussa Werema also claimed that he was arrested as he was coming from his business. He was sent to the police station and was informed of his accusation. On this there is the word of the prosecution. against that of the appellants. I find the word of the prosecution too much of a conjecture, too good to be true. The totality of all that I have outlined above casts a doubt on the veracity of the prosecution story. Assuming the story of the appellants is to be believed that each one of them was arrested on his own errands and was not credibly identified what evidence remains that can connect them to the chain of possession? There remains only two threads of evidence, the mentioning by PW3 together with the · cautioned statements of the appellants, (which · in the background of the demonstrable injuries by the appellants, and 7 ' ' . Q;• · time lapse, their credibility remain suspect) on the one hand · arid the cyber investigation, which only created a chain of '. possession ending with PW3. I have followed the reasoning of the learned trial magistrate with keen interest. I find· nowhere the holding of fact is made, that connects the appellants with the chain of i : .• : ; · ! : ii possession. Since we have doubted the credibility of the confessions purported to be contained in the cautioned statements and the evidence of PW3, who has tried as much to exculpate himself, we have no option but to find as we hereby do, that the chain of ·possession ends with PW3. As a result, we ... agree with the appellants that the appeal in relation to credibility of t_he cautioned statements as well as the testimony of PW3 both are unreliable. We allow their appeal in that respect. And this takes care of the remaining grounds if they have not been covered. In the result, this appeal is allowed. The C()nviction by the lower court is hereby quashed, the sentence set aside. The appellaots shall be released from custody forthwith, unless they Date: 28.10.2015 Coram: Hon. S.B.M.G. Matupa, J Appellant: All present in person ·, l I· Respondent:- M/S Ajuaye Bilishanga (Senior State Attorney) . ' '. ;_ : ··; for the Republic Respondent B/c: Shida : . :• I:'j M/S Ajuaye (Senior State Attorney): \ 1 This appeal is set for judgment. We are ready for judgment and all appellants are present. S.B.M.G. Matupa Judge Court: . This appeal was read before the appellants and M/S Ajuaye Bilishanga on the 28th- October, 2015. ~ .#0p;:~ .S.Br'j~d;atupa ,t,;,, I ;1/- Yl, ,~ ,f;i,i lt I \ . \};' }I .)\J\ ~~~- ..s~. --.•,.;,·>,.._ ~i,•.. .. -~-· -:., '_j ,~/.;.c1/.'i,ff ./:..."vt·.,-lj.jf '(~~{~:::~l.It~it?- 7 9