20150227 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM HC CRIMINAL APPEAL. NO. . . 176 OF 2014 (Appeal from the decision of the Kisutu Dar es Salaam RM's Court, in Criminal Case No. 69 of 2012) EX.G.3205 PC YASSIN RAMADHANI · ................ APPELLANT Versus THE REPUBLIC ••!11••·••.•··················••!11••· RESPONDENT 5th & 2ih February, 2015 JUDGMENT Feleshi, J.: The appellant, one Ex.G.3205 PC Yassin Ran:,adhani, together with · Abasi Saidi Sanze and No. EX.G.3133 PC Frank Joseph were all charged before Kisutu Dar es Salaam Regional -Court with'the offence of_ Armed Robbery: contrary to section 287A of the Penal Code, [Cap.16 R.E. 2002] . . ' as amended by Act NO.3/2011. At the closure of ' the prosecutions' case, . . the appellant's co-accused persons were acquitted under section 231 of the Criminal Procedure Act, [Cap.20 R.E.2002].° Upon a full trial, he was held · liable, convicted and ,sentenced to thirty (30) years imprisonment. The court also ordered that all exhibits be returned to police. The particulars of offence has it that on the _2 nd February, 2012 at • • Msasani Tanesco Bonde la Mpunga area :within Kinor:,dom District in Dar es 1 .,. ..... salaam Region the accused stole six gold bangles, four gold reckless chain, seven gold rings, two gold bracelets and one mobile phone make Nokia ES all valued ·at Tshs.10, oo·o, 000/ =, the property of pne Sabrina Jusse and in the course they threatened her with iron bar in order to obtain and retain the stolen properties .. The prosecutions.. evidence·. adduced at the trial was that on the fateful day at around 11:30hrs Sabrina 'Jusse (PWl) and four members of her family-her 18 year? old daughter, one Swahila Issa (PW2), her house maid servant, one Zainab Suleiman (PW3), her cook, one Hadija Selemani . (PW4) and her house servant, one Pori Pascal (PWS) were invaded by a group of assailants of whom four were put on Police uniforms. The bandits · whom initially they thought were police officers demanded for money. They had ropes and plasters (Exh.Pl) and iron bar (Exh.P2) which they used to · perpetrate then evil mission. With. her mouth sealed by a plaster and under · severe beating, PWl surrendered her jewels to the assailants. Shortly after · ·their departu_re; PWl unzipped her mouth and raised an alarm which was attended by Good Samaritan~ ·All family witnesses · present identified the appellant at the scene . . being amongst those who wore police uniforms and he was the last thug to dise_mbark PWl's house. He got out running and entered into the premises occupied by Michael Mathias (PW6) and Hassan Mbarouk (PW7) wherefrom he was arrested and severely beaten up by angered civilian. PW6 deposed .· that the appellant undressed the police uniform whilst in PW7's room. ' On their part, F.5712 D/Sgt Nehe·mia (PW8.), D. 7847 D/CPL Be~tus- · (PWll) and E. · 2107 D/CPL Morris. (PW9) recorded the. cautioned· . . ' . statements of the 1st, 2nd and 3rd accused persons-Exhibits P.4,P.5 and P6 · ' "' respectively. Of the three cautioned statements,· only the appellant's cautioned statement (Exh. P4) was objected to at the tendering ~nd admission stage.· The grounds for his objection were that the statement was not voluntarily recorded, it was taken after four hours after his arrest and it lacked the signature of his relative. Despite' the objection the trial magistrate admitted it as Exh.P.4 after noting that: "I have perused the argument leveled by the first an·d third accused person {sic) that the statement was made involuntary; the first accused person was tortured. This court is of the view that this · statement is one of the things which was disputed by .accused person in memorandum of facts for sake ·of justice I hereby admit as · Annexture P.4. Objection overruled." When it turned to the tendering of Exh. P.5 for the 2nd accused and ,. P6 for the 3rd accused by E. 2107 D/CPL Morris (PW9) and D. "7847 D/CPL Beatus (PWll) respectively, all accused. persons the appella.nt inclusive, were invited to comment ! on their admission and all gave their similar comment, that is, "no objection" (see: pp.22 and 27 of the typed procee~ings). The court caused the contents of Exh.PS and P.6 to be read over in court. That's the prosecution's evidence. The appellant gave his defence. In his defence recorded at pp. 32-33 of the· trial. court proceedings, the appellant deposed that as he was returning from the National. Health Insurance Fund offices at Mwenge at 11:30 hrs he went to his friend who was living at Masasani Tanesco road. · . . . 3 . . However, he was stopped by· civilian who told him that at about 20-30 meters ahead there was Toyota Hiace unloading cocaine. Using his words, h~ deposed: " I went up to there and found them with box, then we start (sic) quarrel with them later on ttfey shouted me as Thief and, 1 was severe (sic) beaten by civilian got (sic) severe injuries ... " On his re-examination he _:·still gave unclear sentence about his dothing at the time of his arrest. He said" 1 "police did turn up at Msasani (scene of Crime). They took me while, I was p·ut on police uniform trouser and shirt was undressed by me because I was sev·ere (sic) bleeding, so I did avoid it to go blood spills .... " · In his judgment,_ the trial magistrate held that, as per prosecution evidence testimony of P,Wl and ~W8 it was undisputable that the accused person on the_ material day was seen and identified by prosecution's witnes~es at the scene together with his fellow who were still at large. He held: ' . ' "the appellant and his companions used offensive weapons. Exhibits PI and P2 to obtain the stolen things from PW1 .... the appellant was · clearly identified .and pointed by at the witnesses PW 1-10 as was well · corroborated by the appellan'ts' cautioned statement. " In his petition of appeal, the appellant who, initially filed five grounds of · appeal and added three more_ at· the hearing generally attacks the sufficiency· of. the prosecution evi(;lence mainly in terms of -identification, 4 . . 1 credibility ·of prosecution's witnesses, trial court's · ~eliance on retracted ·cautioned statement (Exh.P.4) and its failure to consider his defence. !. . . Mr .. Mackanja, the learned state attorney, represented the Republic, the Respondent at the. hearing. He supported the ~ppeal mainly based on • I ' ~ two grounds. Firstly, he argued that there is material contradiction on the evidence adduced by the prosecution's witnesses PW 1, PW6, PW 7 on the · one hand and PW4 a~d PW5 on the other hand or) the attire put by the appellant on the fateful day and also on the circumstahces that surrounded t his ·arrest. He submitted that whereas PW 1, PW6. and PW7 · deposed to have seen the appellant put on the police uniform, PW 4 and PW5 on their part; deposed to have seen the appellant put on short penc~ the uniform that is n_ot us~d by the police. !Q him, the said cqntradiction was deep rooted in as far the ide_ntification of the appellant is ~?ncerned. · He· submitted that, under normal situation witnesses who were together at the scene of crime would· be expected to have common description on what they saw at the scene. On the c9ntrary, the witnesses contradicted themselves. He also said the contradiction between PW6 .and .. PW7 about the appellant _being seen in the Police :uniforms and that of . . undressing them whilst in PW6's residence closer to PW1's house- was un~alled for. Secondly, he faulted the trial cou~ to base its· conviction against the . . .. appellant on· his retracted cautioned statement (Exh._ P4). He argued that ... upon the appellant's objection to its tendering· of Exh. P4 ·for the reason that it was obtained by torture the trial magistrate was duty bound conduct · 5 . an inquiry prior to its .admission. He .submitted that the faulty dented the , .~vidence contained in Exh.P4 with~ut _which there.is no enough evidence left to sustain the prosecution's case. The learned state Attorney referred this court to the decision in the case of Moris Agenda & 2 others V. R~p .. (2003) TLR 449 and sectiqns 27 and to 28 of The Tanzania Evidence • · .· Act, [Cap. 6 R.E 2002]. It is crystal clear that after reading the proceedings and judgment of the trial court I gleaned from them that the court was satisfied that the appellant was perfectly identified 9t the scene by PW1 whose evidence was corroborated by other witnesses as well as the appellant's cautioned statement (Exh.P4). it is well settled in our law that under normal- circumstances appellate courts are bound by trial· court's findings as to the credibility of witnesses, save only if there are circumstances on the record which call for a reassessment of their credibility (see: Omari Ahmed v Rep: [1983j TLR 52, Ali Abdallah Rajah v Saada Abdallah Rajah & g others [1994] TLR 132,. Adventina Alexander v Rep., Cr. Appeal No. 134 of 2002 (unreported). · Before exposing the findings of this court on whether or not is in ' . . agreement with the findings of the trial court on the issue of credibility of ' the prosecution witnesses, let rrie quickly dispose the issue of Exh.P.4 which constitutes one ground of appeal which also gained support of the Respondent. I buy their position.on Exh.P4 and expunge it right away from the evidence. It is trite law that sections 27 and 28 of the Evidence Act · (supra) makes it man~atory that only voluntarily obtained confessions are 6 admissible' arid dese(ving; credence by trial courts·; It is for that purpose Ii . I that once·• the voluntariness is questioned an inquiry must be conducted immediately: as rightly pofnted out by· Mr.Mackanja. However, it is also impdrtant to observe ·thateven where-tonfessioni are admitted but afte.r conducting. an inquiry it is prudent for a trial court whenever it is feasible to . • . . I . get corroborating evidence (See: Jackson ·Mwakatoka and 2 others Vs. R [1990] TLR 17) As regards Mr.Mackanja's first ground in support of the appeal that the contradictionS" he noted from the evidence of PW 1, PW6, and PW 7 on the one hand and PW4 and PWS on the other hand in relation to the -~ittire put on by the appellant on the fateful day were fundamental, I further . . noted that the learned trial magistrate find out if there were contradictions and if any attempt to resolve them as was directed by the Court of Appeal . •. in the case of Mohamed Said Matula v Rep. [1995] TLR 3,. which held: "Whenever the testimonies by witnesses contain inconsistencies and. contradictions, the court has a duty to ·address the· inconsistencies and try to resolve them whe_re po.ssible; else the court has to decide: whether the inconsistencies and contradictions are. only minor or whether .they go to the rood of the matter." .. · However, as the analysis of the trial court kept quite on the point, this court being the first appellate court armed wit~ jurisdiction to make · appraisal on the evidence adduced at the tri~I, I had. to scan it tidily. What ~ featured to me immediately is that it was most pro~able that the trial court did not at all sense existence of any contradiction. I too _found that it is only a superficial and piecemeal based reading Qf the proceedings that 7 t. ., ... s_•· suggests that there were inconsist~nce ... . in the prosecution evidence. . . On the contrary, a methodical· reading the proceedings reveals clearly· that the . ' time the appellant was seen putting on a short pence was after he had disembarked PWl's house. It further reveals that actually PW6 and PW7. lived in one residential, premises but, each, with his own home, that is why wh~n the appellant entered into their premises each at different time saw him ·and heard the angered mob outside pursuing him. Therefore, going along with the' Mohamed Said Matula's case . (supra) my finding is.that the one·package of evidence on the attire put by , . ~he· appellant must be viewed in regard to the point the appellant was observed fro·m, that is, whilst. first inside PWl's. house and latter whilst taking a hide in PW6 and PW7 ·premises and that stand point poses .no contradiction. . . Furthermore, I· have already reproduced part of the appellant's ·, evidence in defence above which:.does acknowledge that upon the attack by civilian he undressed the police uniform. He said trouser and shirt were undressed by him because he was severely (sic) bleeding, so he was · avoiding the blood spilling out. In view of the foregoing, I hold that as the evidence of PW1 to PW7 is closely co~nected chain as regards to what first ,.happened inside PWl's · house and then in the nearby premises wherefrom the appellant was arrested and severely beaten up, I like the learned trial magistrate, affirm g ·the credence he gave to PW1 and other witnesses whom he found to have . . . 8 had ably corroborated PWl's ·evidence, of course, minus the evidence . . contained in Exh.P4 which, I have already discounted._ To appreciate more the series of. event that s·urrounded the ·case under discussion, and in order to double check the veracity of the appellant's defe~ce, I took a liberty to revisit the cont~nts of the· cautioned statements made by the appellants' co-accused persons (Exh.P.5 ~nd · Exh.P.6) which as I pointed out earlier on were· not opposed at the · ' tendering: ·and admission stage and therefore forms part of .the court ' . evidence placed before me for apprai~al. The evidence in Exh.P.5 and Exh.P.6 which, in my unfeigned opinion, corroborates further the evidence of PW1,PW2,PW3,PW4,PWS,PW6,PW7, PW9 and PW11 makes disclosure on how the appellant and his companion plotted the armed robbery incident one day before. They further reveal that the vehicle the appellant ' points out in his defence that had cocaine 20-30 meters ahead at the scene was actually theirs. The reproduced parts of Exh.P.5 :and Exh.P.6: read: Exh.PS "mara ya pili alinipigia simu tena nikaenda kumchukua huko mabibo kuelekea Kilwa road polisi. Siku hii ·alikuwa amevaa sare za polisi na kusema yeye ni polisi. Nilimteremsha pale katika nyumba za polisi kulwa road akaenda zake akawa anongea na askari mmoja mwembamba mweupe na kisha akaja askari mmoja mweusi mwembamba ambaye meno yake yameungua .... alishuka Abdalla akaingia ndani katika nyumba mmoja ,. ambao naikumbuka akatoka na sare za polisi ambazo alikuwa ameziweka katika mfuko mdogo wa plasitic zikawa zinaonekana .... kabla hatujafika mbali Abdalla alisema amesahau mkanda ... Hapo ndipo tuliporudi hadi pale akafuata mkanda wa sare hizo ..... hii ilikuwa ni tarehe 01/02/2012 siku _ya jumatano .... njiani alianza kuniambia ku·wa kesho' yake watakuwa na kazi ya kutafuta pesa huko maeneo ya msasani. .. alisema kazi yenyewe ni ya kwend'a kuchukua pesa kwa ulaini ambako katika ·nyumba tunayokwenda_ kt.ichukua kutakuwa na wanawake tu ..-.Alisema kun.a wale watakaokwenda 9 pale kuwafunga kamba na plaster mdomoni iii wasipige kelele iii tuweze kufaniskisaha kuchukua pesa· katika ·nyumba hiyo. Kesho yake tarehe .:" . 02/02/2012 majira ya saa 0~.00 hrs nikiwa maeneo ya ubungo Abdalla alinipigia simu akinitaka nikamchukue huko mabibo ... nilienda mabibo saa ·"' ·•·v· 09.00hrs kumchukua ambapo nilimkuta akiwa akiwa amevaa sare za polisi. Hapo aliniambia ile kazi ni leo na kwa muda huo twende huko kilwa road katika _kambi za polisi iii kuwafuata askari. Baada ya kufika kule kilwa road polisi jirani na kambi.za polisi Abdalla alimpigia simu yule polisi iii aje .... na baada. ya kama dakika kumi hivi alirudi akiwa na askari mwenzake na wakaingia katika gari. ... tulipofika Mburahati barafu tulikuta gari. aina ya Toyota Hiace rangi nyenye ran:gi kama cream white ... wote waliingia katika_ gari hilo . kisha Abdalla akasema niwafuate nyuma .... baada ya hapo waliniambia niwafLiate hadi maeneo ya msasanL .. Ghafla ile ghari Toyota Hiace ikanipita . na nilipoifuata tukapotezana. Kila nikimpigia Abdalla hapokei simu. Tarehe 06.02.2012 majira ya saa 19:30hrs nilipigiwa siku kwenda maeneo ya urafiki ndipo ... nikiwa hapa kituoni O'Bay ndipo nllipomuona yule askari polisi niliyemchukua katika gari langu tarehe 02.02.2012 akiwa ,na Abdalla. Askari huyu nilimu_ona akiwa amekamatwa kwa tuhuma hizo za unyang'anyi wa kutumia nguvu. Pia askari huyu ndiye Yule niliyemshusha toka katika gari langu na akaingia katika_ile_Hiace_·- - - ---'-------S-uppereostorm al<aenaal<ufanya tukio huko msasani. ... " Exh.P6 " ... nina rafiki yang·u aitwaye Ya_siri Ramadhan Shaban ... yeye pia ni msela kama mimi :.. wakati tukipata kinywaji mara alikuja mtu mmoja ... yeye anaitwa Abdallah ... na tukawa marafiki mpaka kupeana na namba za simu pia .... nakumbuka tarehe 02/02/2012 majira ya 07.00hrs niliingia kazini ofisini kwetu polisi Band ... Yasin akiwepo baada ya muda mfupi rafiki yangu Yassin yeye aliondoka ghafla bila kuniaga kwa ktJwa na mimi nilikuwa_ na shughuli zangu sikuwa. na wakati wa kumtafuta kwani simu yangu ilikuwa haina salio ilipofika majira ya saa 11.30 hrs niliipigiwa simu na Abdalla kunieleza kwamba wakiwa na Yasin· huko maeneo ya masaki wakifanya tukio amekamatwa· na ki.sha akakata simu. ...ilipofika saa ·13.00hrs kuja kuitwa na kuelezwa ·. ninahitajiwa Polisi Osterbay nilipofika · nilimkuta Yasin ·akiwa amefungwa plaster kichwani na kuelezwa kwamba .r . alikamatwa huko_ maeneo ya msasani walipokuwa wamekwenda kufanya unyang'anyi wa kutumia nguvu ndipo nikagundua kuwa Abdallah hakuwa mtu mzuri · · 10· • . . , . . . . ·, - I . • . In view of the reproduced contents· of Exh.P.S' and Exh.P.6 and _the·· above on·. discussion, I have no any spot of _doubt that the· appellanfs defence generally fo,rms a piece of .evidence that carries ,further . the · I • ,, • •. • prosecution's case of which the Court of Appeal held in the cases of Ali Mpalilo Kailu v.R [1980] TLR 170, Mohamed Haruna@ Mtupeni ~- .R, - Cr.Appeal No.259 of 2007 and Ally Haji v. R, Cr.Appeal No. 45· of 2011 entitled the court to apply it in deciding on the question of his guilty. To use its word the court held- "if the acc~sed person in the course of his ( defence gives evidence which carries the prosecution case further, the Court will .be entitled to take into account such evidence of. the accused in deciding on the question_ of his guilty". From the foregoing analysis, with due respect to the appellant and the Mr.Mackanja, save for the appellant's retracted confession I have ' already expunged it from the evidence, the rest grounds in support of the i appeal are not meritorious. In this case, I am satisfied that the credibility and cogency of the evidence adduced -by PWl and other prosecution's witnesses· at the trialI ably warranted the appellant's conviction and·_ sentence. . ., Therefore, the Appellant's appeal - is hereby dismissed. r o'rtler accordingly. DATED at DAR ES SALAAM this 2Jth day bf February, 2015. E.M.FELESHI JUDGE . . 11 , . Delivered iri the· presence of the Appellant and Ms. Chaya Mlaki, the . learned Stat~ Attorneys, for the Republic, the Respondent. E.M.FELESHI .JUDGE 27/2/2015 A right of Appeal explained ........, .. E.M.Feleshi JUDGE 27/2/2015 (·. 12 , ·.