20160908 TZHC Arusha

IN THE HIGH COURT OF THE UNITED REPUBLIC TANZANIA [IN THE DISTRICT REGISTRY] AT ARUSHA CRIMINAL APPEAL NO.33 OF 2016 (Originating from RM's Court of Ar:usha Criminal Case No.1210/2015) · VICENT CHARLES .................................................................APPELLANT VERSUS THE REPUBLIC ...................................•.................................RESPONDENT JUDGMENT DR. OPIYO, J. The appellant herein above was charged in Resident Magistrate's court of Arusha for the offence of Armed Robbery contrary to section 287 A of the Penal Code [CAP 16 R.E 2002] as amended by section 10 A of the Written Law Miscellaneous Amendment. Act No. 03/2011. He was then convicted and sentenced to 30 years imprisonment before G.A. Mwankuga, RM on 7/1/2016. Aggrieved by the decision of the trial court, he has preferred his appeal to this honourable court advancing four grounds as appeared as follows; 1. That, the trial court misdirected itself and consequently erred in law in holding that the appellant was properly identified at the scene of 1 crime on the basis of tenuous, contradictory and unreliable evidence of PW1, PW2 and PW3. 2. That the trial court erred in law and in fact when it failed to evaluate the evidence on record and so arrived at a wrong verdict. 3. That, the trial court erred in law and in fact in not finding that the prosecution case was not on required standard 4. That, the trial court erred in law and in fact in failing to see the glaring contradictions in the testimonies of the prosecution which should have been resolved in favour of the appellant. The hearing of appeal was done orally and the appellant who appeared in person submitted that he has lodged his appeal in order to challenge conviction and sentence by the lower court. He submitted that, he was convicted upon insufficient evidence as the prosecution witnesses were not credible and their evidence contradicted one another. That while PW1 said the accused's name was Vicent Charles, PW2 said he was Vicent Charles Kasim Ekeibise. He added that,PW1 was not a credible witness because during examination in chief she said she was robbed with three youths but in cross examination she said there were six people. The appellant submitted further that, PWl did not identify him at the crime scene, he argued, if PW1 identified himthere was no need of conducting 2 . identification parade at the hospital. His argument was that conducting identification parade proves that the witnesses did not know him before the incident, so the trial magistrate erred in convicting him based on insufficient identification and evidence. He thus prayed his appeal be allowed. In reply thereto, Mr. Kagirwa, learned State Attorney submitted that, they do support conviction as the charge against the appellant was proved beyond reasonable doubt. He submitted that,PWl who was the victim explained very well how he met the appellant at around 6 pm and she knew him very well. PWl was able to identify appellant as well as the knife (exhibit Pl) used to threaten her as there was still sufficient light. He went on to submit that, the victim's evidence is direct evidence in accordance to section 62 of the Tanzania Evidence Act. The learned State Attorney added that, the evidence of PWl is corroborated by the evidence of PW3, who was at the car wash at the time of the incident and testified to have seen the victim bleeding and crying for help and in few minutes he saw about six to seven youths passing near car wash, he ran after them and managed to catch one of them who is the appellant herein having a knife coated with blood wrapped with rubber band. Mr. Kagirwa submitted that the evidence of PW2 was that he was the one who received the knife from the one who sent the victim to the police station, thus, the evidence of PWl, PW2 and PW3 was watertight to warrant conviction, therefore he prayed for this appeal to be dismissed in its entirety. 3 I have considered the appellant's memorandum of appeal as well as his oral submission and that of the learned State Attorney for the respondent and found out that, the central issue for determination in all four grounds is whether the charge against the appellant was proved to the required standard. Starting with the issue of identification, the appellant claimed that he was not properly identified at the scene of crime. From the trial court records, the incident happened around 18.00 hours in which the condition for proper identification was still favorable, so the victim could still identify her assailant very well as stated by Mr. Kagirwa, Learned State Attorney. This is especially, given the fact that the victim claimed to have known the assailant very well before the incident. However, the court finds serious contradictions on whether the appellant was the one who was identified at the crime scene or not. PW1 testified that, she was able to identify the appellant as she knew him before and she was even able to identify the knife he used to cut her in robbing her, that it was long and written solingeni. She even confirmed it was the same knife that was tendered in court as exhibit Pl.However these facts do not tally well with the facts that among the first persons the victim met after the incident was her uncle by the name Simon, who found her wounded and even, took her to hospital. PW1 did not say whether she narrated to uncle Simon as to who wounded her to prove that she knew her assailant right from the beginning (being a person well known to her even before the incident) or not. She did not even name the accused at the police station when she went for PF3, necessitating identification parade when 4 \ . appellant was apprehended to identify her attacker.PW! did not also name the accused or anybody as her assailant to PW3 who seemingly was the first person to meet her after the incident and even ran after the suspects and managed to apprehend the appellant herein, as per his testimony. Surprisingly, in her testimony, PW1 does not even talk about meeting PW3 at all. These discrepancies bring some doubts on the issue of identification of the appellant, reasonable enough to be resolved in appellants favour. Although the above point would suffice to dispose of the appeal, but there is also an issue of chain of custody that the court feels a need to say something about. The record of trial court shows that the victim is the one who tendered exhibit Pl, the knife supposedly used to attack her, but there is no proper account of chain of custody on how the said knife was handled from the time it was taken from the appellant, if at all, to the time it came to the hands of PW1, the victim, for tendering. The testimony about that exhibit ends with PW3 apprehending accuse with it and handing it over to the police. Nothing is told or was recorded on how it was kept to the time it appeared in court in the hands of the victim, PW1. There was no evidence of the person who received the said exhibit Pl (knife) on the date it was supposedly seized to prove that was found in the hands of the accused person in the first place. And no account of who had their custody for all that long before the same was tendered in court. In absence of such account, the law says chain of custody was broken. 5 Chain of custody in this context is the chronological documentation and/or paper trail, showing the seizure, custody, control, transfer, analysis, and disposition of exhibits. See the case of Paulo Maduka & Others vs. The Republic, Criminal Appeal No. 110/2007, CAT at Dodoma (unreported). The idea behind recording the chain of custody was also stated in that case in the following words; "The ideal behind recording the chain of custody, it is stressed, is to establish that the alleged evidence is in fact related to the alleged crime rather than, for instance, having been planted fraudulently to make someone appear guilty." In view of those missing links, I am of the view that absence of a proper account of chain of custody in respect of exhibit in question leaves open the possibility of the said exhibit being concocted for the purpose of this case. And those 'open possibilities' are the reasonable doubts that are normally resolved in favour of the accused. From the above, my settled finding is that, the evidence before the trial court cast a lot of doubt and indeed fell far short of the requisite standard of proof in a criminal charge. The available evidence therefore was insufficient to ground conviction on by the trail court. For those reasons, I am satisfied that the appeal has merits, I therefore allow the same and quash and set aside both conviction and sentence by the trail court. I order 6 1 for appellant's immediate release from prison unless. he is otherwise lawfully detained. I DR. M.O,IYO JUDGE s10912b16 I 1 .! I 7 jy