20160909 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 172 OF 2016 (Originating from Mkuranga District Court Criminal Case No. 100/2015) 1. HEMED s/o HAMISI @ KIPINGA ............................ 1 ST APPELLANT 2. JUMA s/ o HAMISI @ Kl PI NGA .............................. 2ND APPELLANT VERSUS THE REPUBLIC ••••••••••••••••••••••••••••••••••••••••••••••••••••••• RESPONDENT Date of Last Order: 24/08/2016 Date of Judgment: 09/09/2016 JUDGMENT FELESHI, J.: In the District Court of Mkuranga at Mkuranga, the appellants were charged with two (2) counts, that is, one, burglary contrary to section 295 and two, stealing contrary to sections 258 and 265 all of the Penal Code, [CAP. 16 R.E, 2002]. It was alleged that, on 13/09/2015 at about 1:05 hrs at Chugu village within Mkuranga District in Coast Region, both the accused persons did break a shop of one Msafiri Ngwenya with intent to commit an offence and that after the said breaking, they stole cash money amounting to Tshs. 1,414,000/=, the property of the said Msafiri Ngwenya. The accused persons pleaded not guilty to the charged counts. They were tried, convicted and sentenced to fourteen and seven years terms of imprisonment for the 1st and 2nd counts respectively with order for the sentences to run concurrently. Aggrieved, the appellants preferred two sets of Petition of Appeal on the following 8 grounds of appeal to wit that:- 1. The trial Magistrate grossly erred both in law and in fact in convicting 'the appellants relying on sworn evidence of PWl (lames Edward) who, is of Page 1 of 6 tender age without having conducted an intelligence test {voire dire test} to ascertain whether he possessed enough intelligence and knew the meaning of oath and the duty to speak the truth to justify reception of his sworn evidence in compliance with the mandatory provisions of Tanzania Evidence Act, [CAP. 6 R.E, 2002]. 2. The trial Magistrate grossly erred both in law and in fact in convicting the appellants by relying on accomplice's evidence {PWl} without cogent corroborative material evidence in compliance with the mandatory provisions of Tanzania Evidence Act, [CAP. 6 R.E, 2002]. 3. The trial Magistrate grossly erred both in law and in fact in convicting the appellants relying on un-credible visual identification of PWl against the appellant as the crime is alleged to have occurred during night at about 1:00hrs, however, the said identifying witness did not disclose the source of light that aided identification of the appellants. 4. The trial Magistrate grossly erred both in law and in fact in convicting the appellants relying on procedural identification of PWl against the first appellant made at Bupu village where the 1 st appellant and his co-suspect {2 nd appellant} were lined among four other people and PW1 alleged identified the appellants who as per his testimony, were familiar to him prior to the crime contrary to the procedures of law. 5. The trial Magistrate grossly erred both in law and in fact in convicting the appellants in a case where the prosecution side failed to lead an investigatory evidence to establish how the appellants were connected with the case at hand and further no local leader was summoned to testify to the effect in order to cement their case. 6. The trial Magistrate grossly erred both in law and in fact in convicting the appellants by relying on hearsay evidence of PW2 and PW3 without any corroborative material evidence contrary to the procedures of law. 7. The trial Magistrate grossly erred both in law and in fact in convicting the appellants and in failing to draw an adverse inference against the prosecution side for not having summoned in the trial Court one John who was alleged by PWl that he went together with him at the scene of crime where he left the 1 st appellant with his fellow at PW2's shop to testify to that effect. 8. The trial Magistrate grossly erred both in law and in fact in convicting the appellants considering the evidence of PWl who was unreliable witness as he claimed to receive a dividend from the 1st accused {1 st appellant} who knew that he stole from PW2's shop but PWl never reported the matter to anyone, hence, his evidence is just an exculpation from the crime he took part. The hearing of the appeal was conducted orally whereas the appellants appeared in person, that is, unrepresented while the Republic was represented by Ms. Elizabeth Olomi, learned State Attorney. Page 2 of 6 .., Addressing the appeal, the appellants urged for the grounds of appeal to form integral part of their submission thus urging for the appeal to be allowed. On her part, the learned State Attorney submitted for the 1st ground that, the evidence on record which was not challenged was that, PW1 was 15 years old thus not necessitating conduct of voi~e dire test. Regarding the 2nd ground, she submitted that, in terms of section 142 of the Evidence (supra), an accomplice is a competent witness whereas lack of corroboration cannot be said to render a conviction illegal. Besides, the evidence on record proves their role in commission of. the offence rendering that ground baseless thus non meritorious. As to the 3rd ground, the learned State Attorney submitted that, PW1 knew the appellants by their names whereas they spent reasonable time at the scene of the crime whereas they were close to the culprits that enabled unmistaken identification. She cited the case of Scapu John & Lipi Shaha vs. the Republic, Criminal Appeal No. 197 of 2008, (Unreported), (Dar es Salaam Registry) where the Court of Appeal held to that effect. Besides, later on, the culprits traced PW1 and give him Tshs. 60,000/= that he should not relate the episode to other people. In respect of the 4th ground, Ms. Olomi learned State Attorney submitted that, the purpose of PW1 going to Buku village was to make other people know that what he had said was true. She cited the case of Benson Kibasa Nyankonda vs. Republic, [1998] T.L.R 40 where it was held that, Identification Parades are merely investigatory and extra judicial in nature. Their outcome has no independent probative value but can only corroborate the evidence given in Court by the identifying witnesses. Page 3 of 6 ·" Regarding the 5th ground, the learned State Attorney submitted that the investigation was properly led adding that, "in terms of section 143 of the Evidence Act (supra), no specific number of witnesses is required to prove a case adding, the witnesses paraded were only the material ones. As to the 6th and 7th grounds, Ms. Olomi submitted that, the trial Court did not rely on hearsay evidence as PWl gave direct evidence which was corroborated by PW2 & PW3. In respect of the 8th ground, she argued that, the culprits carried machetes with them adding that, PW1 had no intention to commit the charged offence as he did not conceive any mens rea as well as committing the actus reus in terms of section 10(1) & (2) of the Penal Code (supra). It is from the above the learned State Attorney urged for the appeal to be dismissed for lack of merit. Having considered the evidence on record and the respective submissions by the parties, the following are the deliberations of this Court in disposal of the grounds of appeal. Regarding the 1st ground, as correctly submitted by the learned State Attorney, the evidence on record is clear that PW1 was 15 years of age at the time testifying in Court. Being the case, there was no need for the trial Court to have resorted into conducting a voire dire test while the testifying witness was not a child of tender age in terms of section 127(5) of the Evidence Act (supra). Thus, the 1st ground is non meritorious and it is dismissed. In respect of the 2nd ground, the provisions of section 142 of the Evidence Act (supra) are clear that the evidence of an accomplice need not be corroborated. The said section 142 of the Evidence Act (supra) reads:- Page 4 of 6 .• "An accomplice shall be a competent witness against an accused person, and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice". This position was subscribed by the Court of Appeal in Marthine Christian @ Msuguri vs. the Republic, Criminal Appeal No. 209/2010, (Mwanza Registry), (Unreported) where the Court underscored that:- "The trial judge invoked the provisions of section 142 of the Tanzania Evidence Act which state:- "An accomplice shall be a competent witness against an accused person, and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice .... " We subscribe to the approach taken by the trial judge in respect of this issue". From the above, as rightly submitted by the learned State Attorney, the appellants' assertions of an accomplice lack merits in law for the trial Court was satisfied with the testimony by PWl (the said accomplice) in finding the accused persons guilty of the charged offences. Reasons wherefore, likewise, the 2nd ground lack merit and it is hereby dismissed. Regarding the 3rd , 5th , 6th , 7th and 8th grounds, as correctly submitted by Ms Mtaki, the bandits were well known to PWl as sons of Mpalangolo. Besides, the said culprits later in the same fateful night, traced PWl and gave him Tshs. 60,000/= for PWl not to disclose their involvement in the incident. At this time also, PWl identified the appellants when he asked them "vipi tena" meaning that, he managed to identify them as the same persons who forced him to get inside the complainant's shop to steal. The testimony by PWl who properly identified the culprits as they were all known to him before the incident, water down the need to call for any other witness in establishing the case against the appellants because the said PWl was a credible witness who properly identified them. Page 5 of 6 This fact is backed by the provisions of section 142 of the Evidence Act (supra) which is clear that, a testimony of an accomplice need not be corroborated and that of section 143 of the Evidence Act (supra) that, no specific number of witnesses is needed in proof of any fact. From the above, the 3rd , 5th , th th 6th, 7 & 8 grounds lack merits and are dismissed. In respect of the 4th ground of appeal as to un-procedural conduct of Identification Parade, notably and truly, no witness was paraded by the prosecution side to tender in Court the Identification Parade Register and or to testify on how the Identification Parade was conducted. Despite that, the issue of improper conduct of the said Identification Parade was never raised by the appellants during trial as DW1 (1 st appellant) just testified in Court that PW1 identified him and his brother (the 2nd appellant) in the Identification Parade. From the above, this Court finds that issue to be an afterthought thus non-meritorious in law. Consequently, the 4th ground lacks merits and it is hereby dismissed. In conclusion, from all the above in composite, this Court is satisfied that this appeal has no merit. It is dismissed in its entirety. It is so ordered. \ Page 6 of 6