20160908 TZHC Arusha

IN THE HIGH COURT OF THE UNITED REP~BLIC OF TANZANIA I I ARUSHA DISTRICT REGISTRY I I Al'ARUSHA i ' CRIMINAL APPEAL NO 61 OIF 2015 I . (From the Arusha Resident Magistrates Court Criminal Case No. 331 of : I !2013) ! SALIM ABUBAKAR@MJUSI ...................... 1 •••••••• 1 st APPELLANT I DICKSON SIMON .......................................... 2ND APPELLANT ANTHONY ABDALLAH ............................. ~······ 3RD APPELLANT RASHID ALLY@ CHID .............................'· 1. . . . . . . 4 TH APPELLANT JUMANNE ABDALLAH @ BAB "G" ........... .\...... 5TH APPELLANT VERSUS ' THE REPUBLIC ...................:.................... ~········ RESPONDENT f I JUDGMENT f Mwaimu, J. ; 1Six persons, Salim Abubakar @ Mjusi, Dtekson Simon, Anthony Abdallah, Rashid Ally @ Chid, Bakari Abeid and Jumanne Abdallah @ Bab "G" were jointly charged before the Arusha Resident magistrates' I i Court with the offence Armed Robbery contrar~ to section 287A of the 1 Penal Code Cap 16 RE 2002. In addition to the count Bakari Abeid was charged along with the others, he faced the charge of Receiving Stolen Property Contrary to section 311 of the Penal Code. It was alleged that on the 22 nd day of September, 2013 at Born City place, Terati area within the Arusha City, the six persons did steal a number of assorted items including nine mobile phones, a laptop, a DVD system, a heavy duty camera, a wallet containing an ATM Bank card, a hand watch, a scanner machine, two bags, a a pistol Browning make black in colour with thirte~n bullets and car keys for Toyota Corolla with Registration No. T 674 ANL the property of Embross Mwanguku. I was said that immediately before and after stealing the six persons used a pistol, bush knives, iron bar and a club to threaten the said Amboss to obtain and retain the stolen properties. In the second count it is said that on the 30 th day of September, 2014, at Sakina area within the Arusha City, Bakari Abeid received a mobile phone hand setmake Nokia from Salim Abubakar @ Mjusi while knowing or having reasons to believe that the mobile phonewas a stolen property or unlawfully obtained from Embross Mwanguku. After a full hearing all the accused except Bakari Abeid were convicted on the first count of offence of Armed Robbery. Bakari Abeid was convicted on the second count on the offence of receiving stolen. The five accused were seliltenced to serve thirty (30) years jail term. Bakari Abeid was sentenced in absentia to serve one year jail 2 I term after he absconded. The five accused persons were not satisfied with the judgment of the trial court and therefore preferred a joint I appeal to the Court containing ten grounds of appeal. However, after I scrutiny I found some of them as being repetitiv~. Ground 1, 2, 3 and 6 are related to identification. Ground 4 and 9 are challenging the 1 I admission of cautioned statements. Ground 5 is i0n contradictions on the statements by the prosecution witnesses, gr6und 7 and 8 are on I weakness of the prosecution evidence. For the purposes of resolving them they will be treated in clusters. All the five appellants disputed to have b~en identified at the scene of the crime. Generally they claimed that the environment was I not conducive for identification as the offence is alleged to have I committed at night. Firstly, they said, the evide~ce led did not show the intensity of light used to identify them. Secondly, none of the witnesses ever described the identity of the assailants. The first appellant Salim Abubakar told the Court that he was not subjected to identification parade. He claim~d that his conviction was based the cell phone, an exhibit alleged td have been found in I the possession of Bakari Abeid who was charged as the fourth I accused but absconded before the end of the tri al. He said, as Bakari 1 Abeid did not testify there was no proof that he handed the alleged I cell phone to him. 3 I I I I The second appellant apart from disputing h,is identification, he I claimed that his conviction was based on a cautioned statement which I was taken as his confession. He claimed th~t no inquiry wa.s I conducted before the statement was admitted as an exhibit. ' i th According to him he was arrested on the 15 day tjf September, 2013. I However, PW3 who was the investigator of the case told the Court I rd that his statement was taken on the 23 day qf September, 2013 which was eight days after his arrest. Worse :enough he urged, I reading of the statement it shows that it was reco~ded on the 24th day of September, which was a day after. He bointed this as ·a I contradiction. 1 I I The third appellant, apart from refuting ~is identification by I voice and by description he denied to have been the person alleged to I have snatched the ignition key of the car from the! victim of the crime. I I The fourth appellant claimed that he was1 identified from the I dock. 1 I I The fifth appellant challenged the identifiqation parade and a I cautioned statement alleged to have recorded ag~inst him. He said he I was not told of his rights before the identiffication parade was I conducted. Moreover, he claimed that the cautioned statement was not taken in accordance with the law. 4 I I I I I I In her reply Ms Lucas learned State Attorne;Y conceded to the I appeal on one ground that the offence charged was not proved I beyond reasonable doubt. I I I . Taking the evidence on record I have no doumt that although the I charge sheet is silent on the time the offence wasI committed, it was I committed at night. This is in accordance with th~e evidence of PW_l Ulimbakasile John Mwanguku who was the wife ~f the victim, PWS Ambross Mwanguku the victim (referred as PW 6 in the judgment 1 I , instead of PWS as referred in the proceedings) and PW2 Juma I , Abdallah who were in the house. According to P\/\/5, the offence was I committed around 1:30 and 2:00 hours meaning1 that it was at mid I night. According to PWS and PW2 when the ass;ailants entered into I the house PWS was in the seating room doing some work. I I The issue is whether the appellants were identified at the scene I of the crime. PWl and PW2 during. examination ih I chief told the trial court that they identified the second accused (serond appellant). B:ut on cross examination by the fourth appellant (fift~ accused before the I trial court) PW2 told the court that he also identified the fourth I appellant. In his testimony PWS claimed to have i~entified the second, I third and the fifth appellants. In her judgment he trial magistrate . I . recorded that PWl and PW2 identified the seco~d appellant throu~h I electricity light. I think that is not true as there is nowhere in their testimony those witnesses mentioned about elecJricity having been at I 5 I the scene. Both including PWS told the trial court that there was light in the house but did not state its source and its intensity. From the evidence on record it is crystal clear that the first appellant was not identified at the scene of crime because none of the prosecution witnesses told the court about having identified him. As he submitted, he was only connected because of the cell phone which was found in the possession of the fourth accused who absconded before the end of the trial and could not adduce evidence. Not only that but also as correctly argued by the appellants, and conceded by the learned State Attorney, the witnesses purported to have identified the second, fifth and six accused persons at the scene of the crime, the court record shows none of them gave any description of the assailants. In order to avoid mistaken identity, description was vital taking into account that they were strangers to them and the incident took place at night. (See Waziri Amani versus Republic 1980 T.L.R 250). Although PWS claimed that the assailants spent about fifteen minutes in the house that was not sufficient to identify a person who was not known to the witnesses. Another matter which waters down the prosecution evidence is the irregular admission by the Court of the cautioned statements of the third appellant (Third accused at the court below) and the fifth appellant (Six accused before the trial court). The statement of the second appellant Dickson Simon and fifth appellant Jumanne Abdallah 6 ... were taken in breach of the law. It is a trite law that where the I ' admission of a cautioned statement is objected, th~ trial court must ' conduct an inquiry or conduct a trial within trial. : Failure to do so ' lowers the value of the admitted cautioned statement. This is supported by case law. In Mazambi v Republic [1990-1994] 1 EA 356 {C~ T} at page 358 the ' Court held: ' ' I •~ trial within a trial has to be conducted whenever an accused I person objects to the tendering of any statement:he has recorded.// I ' I Also in Rashidi and another v Republic [1969] 1: EA 138 {CAD} the I I Court of Appeal held: ''(b) (i) the correct procedure when a statement is challenged is ' for the prosecution to call its witnesses and then for the accused to I give evidence or make a statement from the dock and call his witnesses, if any/// This was followed in Selemani Abdallah and! 2 Others versus ' Republic, Criminal Appeal No 384 of 2008 (CAT DSM) (Unreported) where the Court insisted on conduct of an inquiry when an objection is raised on I ' a cautioned statement to be tendered to ascertain its voluntariness before I I its admission in evidence. ' In result for the fore reasons the app¢al is allowed. The I judgment of the resident magistrates' court is quashed and the I I 7 I I I ' I I I I I I I I I I I I 'I I • I ~ sentence. is set aside. The appellan~ should be released from priso~ unless lawfully withheld for any oth4r lawful cause. I J I !I It is ordered accordingly. !I I ,1· I M.P.M. pt,waimu JudGE Ii I j 8/09t2016 I I I Judgment delivered on this 8th ~day of September, 2016 in ttie I presence of both parties. I 'I I I / l I