20151111 TZHC Mwanza

; I IN THE HIGH COURT OF TANZANAIA .. - " AT MWANZA CRIMINAL APPEAL NUMBER 97 Of 2015 { Original criminal case number 168 or 2013 of the District court of Nyamagana District at Nyan1agana Before Mwajombe £sq, Senior District Magistrate} . INNOCENT SINAI KA GABRIEL ..................... APPELLANT VERSUS THE REPUBLIC ·······················~······· .... RIESPONDENT JUDGMENT ·Matupa, J. k "- Before the district co_urt of Nyamagana at Nyamagana, the appellant was charged and was convicted with the offence of armed robbery, contrary to section 131 of the Penal Code, Cap16 Of the 2002 Revised Edition of laws of Tanzania, and yvas sentenced to a term of imprisonment of thirty years. It was alleged· at the trial that, on the 16th September·2013 at Kilimahewa, Ilemela did steal one handbag valued at Tshs 50,000/=. the property of Zaituni d/o Idd and immediately before and after the stealing h_e_ used a gun to· obtain and to retain the said stolen weapon. fj, The facts of this case are as follows. On the ·fateful day at about 2190 the complainant alighted· from a bus at Kwa Lema bus stop, Nyakato Mwanza, as she was heading to her residence, she walked past a group of youths. f\Jo sooner as she passed them than she was accosted by one of them, was grabbed and held at gunpoint, she was shot by the cheek. The bag she was carrying was snatched. In that ba_g were an assortment of ite·ms, all of them disappeared with it. The shct was heard from the direction of the incident. _Qne of the first person to respond was. Anthony Briton Daddy PW1. As he was rushir~;J to the scene of crime, on the way he clai"med to see a motorbike -..,.:ith registration number T. ·939 CNL. He proceeded to the scene 1/.;; :ere he found the victim_ lying in the pool of blood. He joined othe:·s to assist the victim. It transpired · that the victim was his relali< ::. The matter was. reported to the police at Kirumba Police staU01. Nhere the complainant was given a PF3 and was sent to the hOSiJ;1.:.i. The complainant was critically ill; she was hospitalized for d :onsiderabl~ length of time. The complainant explained the· i1 <;.__ 2nt as having occurred so abruptly that she was not able to idei 1Li;, any p~rson. It is not clear ~ow the 3,) 1 ~!!ant was arrested. There are.three versions, two versions co.n-.: ,__ from the prosecution and one from the appellant. One versic., ;Jm the prosecution has it that following· a report by PWl t:::.i. the aforesaid ·motorcycle wa·s seen speeding from the scene of c.: 2; the appell~nt was arrested as its driver. The other version t ,c..-.:• :t ·that, on the 19th of September, 2013 the appellant was . arn..::~i, : allegedly o"n a·_charge of unlawful . possession of a firearm. The... Jellant denied that he was arrested on this· accusation·. He has own ·version, the third in arrow, 2 which alleged that in fact he was arrested on accusation of unlawful presence in the Country. J All in all, it is common ground that on the 20 th of that month, at 08:00m the appellant _was taken for interrogation. It ·was alleged by the prosecution that in the course of the interrogation, the appellant admitted the present _offence together with other offences. The investigating officer had it that he conducted the interrogation in two phases. The first investigation was not in respect of this offence. This investigation started at 8:00. He stopped the investigation in respect of the first o_ffence some few minutes to 10:00 after the appellant is said to have confessed the present offence. At 10:00 he commenced fresh interrogation in respect of the present offence. It took about three hours and forty five minutes u~til 01 :45 hrs.· to conclude the second interrogation. In the cour~e of this second interrogation the appellant is said to have confessed the wounding of the com.plainant with a bullet. . Another -line facts worth the consideration is as it relates. to the _recovery of the weapon us~d in the crime.- It was alleged at the trial that, "a cove~ .of the pistol". was recovered at the scene of crime. The real meaning of this cover of a pistol will be a subject of discussion in· due course. That "cover" together with the pistol allegedly· recovered from the. appellant were sent to · poli_ce. headquarters for ballistic examination. By the time the trial was . concluded the results of the examination were not yet out. The prosecution was conducted and was concluded ·without the "cover" or the gun. At this juncture let me point out the lack of clarity as to what was actually recovered at the scene. Was it a "cover" of the gun or a bullet cartridge? It would appear at p13 that what the court refers. to as a "gun cover" is also referred to as "bullet cover shot" on the . . same page. This confusion apart, an exhibit was admitted and the proceedings show that what was admitted was a "shot bullet cover." The record has not shown what this exhibit is and no trace of it can be made in the file. I would presume that the .learned magistrate meant a bullet cartridge. I would not need to make a presumption had the magistrate been more careful in receiving a complete exhibit and making a correct description of it. On the strength of the confession, the appellant together with three ·others were charged of the offence of armed Robbery. The court, relying primarily on t~e confession, convicted the appellant and acquitted the remaining three accused persons. Aggrieved with the qecision of the court, the appellant has appealed to this court on the following grounds; 1. T~AT, the victim did not identify the complainant at locus in quo 2. THAT, the trial magistrate disregarded. the identification par~de was not conducted as required by law -. · 3. THAT, the victim did not put out the ba_ndits. descriptions . . 4 4. THAT, the lower court did err to dismiss the appellant's strong probative defence confession whereas the ·prbsecution did fail to establish the alleged retrieval and arrest of the appellant 5. THAT, even the purported gun (pistol) did not exhibit in court to justify the relevance of the prosecution assertions 6. THAT, the purported caution statement were totally · illogical as recorded out of the prescribed period 7. THAT, the trial court did not perceive_ that the purported business transaction pertaining the (pistol) . was not legally established in court. Before this court the appellant appeared in person, he was not represented by counsel. Ms Ajuaye Bilishanga, Senior State Attorney appeared for the Republic, the respondent. The appellant was reminded of his grounds of appeal in Kiswahili, he adopted them all. He only added that the trial Court failed to evaluate the evidence for the prosecution hence, it failed to do justice to him. He _prayed to the court- to allow the appeal and discharge him. In support o~ the convictlon, the learned senior state attorney submitted that the major piece of· evidence incriminating the appellant was his own confession which, though retracted, was demonstrably solid, and it was correctly admitted following an ·_ enquiry by the. trial court. She nevertheless admitted .that the · failure by the prosecution to- pursue the ballistic evidence was a ·serious let down. 5 ' . As regards the 1st, 2nd and 3rc, grounds of appeal, the iearned Senior State Attorney was of the view that the fact of identification was not at issue, since neither of the witnesses claimed to know or identify any of the accused persons at the trial, including the appellant herein .. We need not detain ourselves· with these· grounds of appeal. The learned Senior State Attorney is absolutely right in her position. The victim, PVV4 was honest when she said that the incident was so sudden that, she was unable to identify any. on~ under these circumstances an identification parade would be a moot exercise. We dismiss these grounds of appeal. The remaining grounds ·of this appeal are rather exercising. As correctly submitted by the learned senior state attorney, the appeal stands or fails on the strength of the confession. However, considering the circumstances of this case there are a number of other issues which can only make sense if the remaining grounds are discussed together in order to d€termine the credibilfty of the confession. · It is claimed that the appellant confessed using a gun to shoot the complainar:,t. It would appear from on·e version of the prosecution that both : the . gun and· the bullet cartridge were retrieved. N_evertheless, the fact that the cartridge was recovered from the scene is a nightmare for three reasons. First, this claim is . fraught with contradictions. Whereas C/CPL Mudrigat, PW2. Has ·. · claimed that the cartridge was recovered from the seen~ of crime_. on the 17th September, 2013 by himself in the company of PWl 6 · Anthony, the evidence of the said PWl does not mention that he ) saw the cartridge, not alone that he returned to the scene of crime the next day as it is claimed by PW2. The other strange element of this part of the evidence is the way the cartridge was introduced in .evidence. We have explai~ed ·hereinaqove the lack of clarity that · shrouded the item that was tendered in evidence. As if that confusion ~as not enough, whereas the trial magistrate was told that the cartridge was sent to the ballistic laboratory for . . . investigation, he was not told that results were given; and yet he accepted an exhibit that was purportedly sent for examination without results of the examination. As if that was not enough the• exhibit s·upposedly marked Pl is nowhere to be seen on the file. The appellant objected to the admission of the exhibit, the magistrate was not alerted that not every cartridge was relevant. It only becomes relevant after the report which would explain that it was indeed discharged from the alleg_ed gun as claimed was rendered. The evidence on record is virtually silent if at all the cartridge was discharged from the gun that was used to shoot the complainant. As it transpired, the same witness told the court that _the cartridge was sent to a_mmunition laboratory together with the . . gun. He didn't tell · the court the results of· the examination. Definitely if the cartridge that was picked from the s·cene was sent for ballistic examination was returned, it was incomplete and therefore inappropriate to just pick . the cartridge ·.and admit it in . . . . court an9 leave out the gun and the report of the pallistic expert. 7 At this point let me point out that the haste by the prosecution to proceed with the trial in the absence of a complete evidence of the gun and the cartridge that was sent for laboratory investigation casts a gloomy picture on its willingness to have a successful prosecution of this case. This finding brings us to the_ next issue. That is was it true · that the appellant was arrested with the gun? He has vehemently . protested his innocence on this. As we have shown above, it has been demonstrated that neither the gun nor the seizure order were produced in evidence. With which gun was the appellant arrested? This is crucial -because according to· PW4, the appellant's arrest and the subsequent questioning and confession was a result of his f-- being found with af'; the absence of which, the questioning becomes suspect. With this· background, let me deal with the crux of the app~al. The appellant has complained that the trial court was not entitled to rely on the confession since it was retracted. In dealing with this ground o(appeal, one cannot ignore the details of the statement and the timelines. The record~r. was ·meticulous as to detail in terms of · cautioning and timing. It therefore becomes easy to track at what time each particular was recorded. What transpires from the evidence is the ·foflowing. The first statement opens with the history of the appellant and how he entered the country. It traces his route· 8 until the. time he came to Mwanza. That line of questioning that occupies a page, takes almost half an hour. After that time the appellant is asked about the possession of a pistol this takes another twenty minutes from 10.30 to 10.50. The remaining minutes are spent on how he co_mmitted the. offence and naming his accomplices. The devil is on the detail. First, this detail would show that in fact if anything,· the appellant is vindicated that he was interrogated on his coming. to the country. Two the appellant mentioned t_he facts that constituted his confession in the course of responding to questions put to hrm. Lastly, the length of time it took for .him to confess is inordinately too long. One would expect that if at all the appellant confessed before 09:45 as it is claimed, then the second round of questioning that began at 10:00 would focus on the confession. That was not to be. The content of the confession and the time _lines explain that it was most probable than not that there was only one recorded statement. The issue is did the appellant confess. Definitely he did. But he has retracted it. The second thread of evidence pertains to the motorcycle_ nexus. PWl testified that the appellant was arrested following his identification of .a motorbike that he saw coming from the· scene of · crime. This line of evidence was abandoned, · this disconnect between the evid?nce of a person who was at the ·scene of crime · 9 {I I almost immediately, was left to hang. He was illogically connected J to another thread of recovery of a bullet cartridge this again didn't connect. Another thread was adopted by PW2 that is, the appe_llant was arrested following his possession of a pistol. This line was also abandoned as neither the pistol was produc~d in court, nor was the cartridge credibly admitted in evidence. Then there emerged the confession. These three lines of evidence were loo"se. Each one was left to hang. The cartridge and the pistol ended at a laboratory in Dar. The same cartridge again emerged in Court and i~ was not accounted for as how it came from Dar es $alaam without a report. In this background one has to approach the confession. The appellant was supposed to volunteer an information flowing from illegal- possession of a pistol. It is glaringly clear from the evider:ice that it was not tendered in Court. Under the foregoing loose ends one can legitimately ask oneself if it is safe to rely on such a retracted confession. I am afraid, had the trial court warned . . . . ·itself on the dangers of relying on a retracted confession under these circumstances, ·it would have entertained a doubt on its truth. To add to the foregoing, we are also constrained with the procedural irregularities attendant to the confession. The appellant was allegedly arrested on 19th September, 2013. He was· ·not · questioned until· the next day. The time of questioning is not .. apparent. Whereas the prosecution contends that it started in the 10 . I morning, the appellant has it that it started in the afternoon at ) 1300, before then, he was put through a process of physical persuasion. We have demonstrated l1Jw odd it is for ·a three pages statement to take more than ~hree and a half hours to record. Whatever the case, in the circumstances of this case, when the recording started at a time when already the time available for recording the statement in terms section 51 of the CPA had already elapsed, The only recourse .unc'.2r the particular circumstances of this case was either to seek an extension from a magistrate or to follow a procedure for recording an extra judicial statement. That was not done, we have nc J!t.er; .:..tive but following the authority of Juma Nyamakinana and ;___:-ioth'--.·, (C.A.) er. app. no 133 of 2011 (Mwanza Registry) and Mi..!ssa i'-,ustapha Kusa and another (C.A.) er. app ·no 51 of 2010 all (unre;,-orted), I have to expunge it from the record. To sum up, we ·find t:·:Jt frc... .1 the su~ total of the evidence on ' . . . record it is improbable th~;~ ~he: - ~)pellant was arrested while in the possession of the pistol, 2s it vv~::; not produced in· court. Two, the cartridge that was produc~_j in -~.Jurt could not be the same as the one that is alleged to ha\'i.:: bee .. recovered from the locus in quo. Three the recovered cartr:._';je v, :; sent to Dar es Salaam; and was not show·n to have been r~:eivc__; therefrom. Four the_ time lines for· recording the confession v. ..::re ii ,__ onsistent with the evidenc~ of the -recorder. Five it is doubth_.: ;f d~ JI the appellant was arrested with . ... the pistol or he was so arrested following the report by PW1 that he _) was riding a suspect motorbike. All these loose ends lead to a serious doubt that, there are a .good number of conclusions that it becomes unsafe to rely on any . . one of them. I have no option except to resolve the doubt in the · favour of the appellant. · In· the result I dismiss grounds 1, 2; and 3 as they are irrelev 9nt in the circumstances of this case. I a!low the remaining grounds of appeal. The evidence was not solid enough to warrant the conviction of the appellant. - In the result this appeal is allowed, the conviction of the appellant is hereby quashed, the sentence is set aside and the appellant shall forthwith be released from custody, unless he is otheryvise lawfully_ held. Dated at Mwanza this 11 th Day of November, 2015 -, 1L . • I