20160727 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CRIMINAL APPEAL NO. 217 OF 2015 · (Originating from Criminal Case No. 196 of 2014 in the District Court of Morogoro at Morogoro) JUMA MUSSA @MCHELE vs THE REPUBLIC JUDGMENT Date of last Order 27/07/2010 Date of Judgment 27/07/2010 W. B. Korosso, J The appeal before the Court was filed by the appellant, Juma Mussa @Mchele being aggrieved by the decision of the District Court of Morogoro delivered by on. A. Kimaze RM on the 16th day of June 2015. The appelhmt was convicted of Armed Robbery contrary to section 287 A of the Penal Code, Cap 16 RE 2002 and sentenced to thirty years imprisonment. The appellant filed ten (10) grounds of Appeal which in context alluded that the prosecution evidence was weak and failed to prove their case beyond the standard required. Specifically that, the Conviction was based on a finding that the appellant was identified while the visual identification did not meet the evidential standards required, since the intensity of light was not properly outlined by the witness, PWl to show it was sufficient for identification of the appellant. The other ground being the failure of the trial Court to sumrrion the medical Doctor who had issued the PF3 form tendered and admitted 1 'I in evidence by the Court and that the trial Court had disregarded the defence sworn evidence which had provided a reasonable hypothesis of facts which raised doubts on the evidence of the prosecution. The appellant other contention on the evidence used to convict him in the trial Court was alleged inconsistencies and contradictions in the evidence of PWI relied upon by the trial Court in the conviction of the appellant. On the date of hearing of the appeal, the appellant who appeared in person being unrepresented and informed the Court that he had nothing further to expound on the grounds filed and prayed the Court to adopt and consider the grounds of appeal filed and _prayed _the Court to sef-liim-free -ancI--quash-the-Gonviction. _On_tbe_ 9jll~r_ h~n_d the Respondent Republic which- ~as- representecr by -Ms. -Lilian -R welabura, Learned State Attorney submitted to the Court that they do not intend to support the conviction and sentence meted by the trial Court. The Learned State Attorney submitted that, their decision to support the appeal filed by the appellant was based on the fact that, upon review of the proceedings and judgment of the trial Court, was due to the fact that they were convinced that the Prosecution had not proved its case to the standard legally required. Mainly, they challenged the evidence related to the identification of the appellant has being the culprit stating the evidence relied upon by the Court that of PWI and PW3 cannot be sustained in view of its weakness. That is PWI evidence that on the particular day of 3rd August 2014, he and his colleague one Sadiki went to sleep at around 23.00hrs, and while sleeping they heard a sound of a door being broken down and soon after some people started beating/attacking them. One of the attackers the bandits had a firearm. PWI stated he was shoved and pulled around and the said bandits kept demanding for money and keys. PWI evidence was that he gave the bandits the keys to the shop but then failed to open the shop with the keys and the bandits decided to break down the door to the shop using big stones/rocks. After the door was opened, PWI handed the bandits the box with the 2 ',, money and alleged that he had identified the 1st accused, alleging that there was light sourced by solar energy. PWI had testified that the bandits managed to depart with various items such as mobile phones and in the shop worth around Tshs. 3,000,000/-, and money about Tshs. 700,000/-, and that PWl and his friend were locked in and the bandits departed. Later PWI and friend managed to escape and call for help from the neighbours. The Learned State Attorney in her submission contended that despite the evidence given by PW 1 regarding the circumstances leading to the break in and the theft, the witness had failed to testify on the intensity of light at the scene which facilitated the identification of the culprits, nor provide any special description related to the said · · -bandits which assiste~ _him_ t~ _r~cognize them nor did he manage to provide the time of the said incidence. The State Attorney contended further that PW2 evidence did not assist the Court to fill the gaps in the evidence of PWI, although PW2 had testified not to have recognized any of the culprits in the examination in chief but had changed this during re-examination stating he recognized accused no. 1, the appellant. Again the witness did not provide any particular circumstances which led him to identify the appellant nor expound on the lighting at the scene. The Respondent Republic cited the case of Andreas Ndunguru vs. Republic, Criminal Appeal No. 182 of 2008 (CAT), whereby the case of Saidi Chally Scania vs. Republic, Criminal Appeal No. 69 of 2005 was discussed and the Court had stated: "We think that where a witness is testifying about identifying another person in unfavourable conditions like during the night, he must give clear evidence which leaves no doubt that the identification is correct and reliable. To do so, he will need to mention all the aids to unmistaken identification like proximity to the person being identified; the source of light and its intensity, the length of time the person being identified was within view and also whether the person is familiar or stranger". The learned State Attorney thus asserted that relying on the finding in the said case and the fact that in the present case the witnesses for the prosecution had failed to give evidence that complied with the conditions and standards set therein or what was also 3 enun-ciated in the case of Waziri Amani (1980) TLR 250. That though the trial Court had relied on the said evidence to find the appellant guilty and to convict him, the Respondent Republic were of the view that the evidence lacked the necessary requirements to prove the case and thus sustain the conviction against the appellant. The second issue, which the learned State Attorney relied upon to find that the Conviction of the appellant should not be sustained, was on the alleged differences in the evidence of PWl when he testified in Court and his statement to the Police which was admitted as Exh. DEl. Whereas in the statement to the Police, PWl had stated that he did not know who had broken into the house and attacked them and stolen while in Court he testified that he identified the appellant since he had seen him at the shop before the incident and that he knew accused - ------- ---- IlQ-_ .2 _because -they-were neighbours. That there is no - doubt the evidenc-~ ~f PWl is contradictory in view of the difference in his evidence with regard to his knowledge of the appellant and the 2nd accused and there was no explanation provided on why statements differed. Relying on the case of Mohamed Kakonda vs. R (1967) HCD 341, where the Court held that "if a witness had previously made a statement contrary to his evidence in Court. His evidence should be viewed with - caution and should be acted upon only where the witness offers satisfactory explanation on the change". Ms. Rwelabura contended further that the absence of any explanation of the part of the prosecution should render the said evidence not to be considered was the position of the Respondent Republic and therefore they prayed for the Court to allow the appeal. Having heard the submissions of both sides, the appellant and the Respondent Republic, the Court's main issue for consideration and determination is whether the appeal has merit, in that whether the prosecution did prove their case to the standard required. To start of, the Court had an opportunity to peruse the Court records, that is, the proceedings and the Judgment of the trial Court. This being the first appeal, assessment and analysis of evidence presented in the trial Court is a duty which has to be fulfilled. 4 '" The discerned facts of the case are that, on the 3rd of August 2014, at Makuyu village within Mvomero District, in Morogoro Region, at night, the appellant Juma Mussa@ Mchele, and two other persons, Seleman Hamad @Mbingo and Hassan Athuman Jibaba are alleged to have broken into a shop owned by one Athumani Mayonga and stole various items with a total value of Tshs. 3,325,000/- and had used a firearm to effect the said robbery and also assaulted Selemani Mohamed and Sadick Selemani with Machetes (Pangas ). In this case, there is no dispute that PW 1 and PW2 were attacked on the 3/8/2014, and injured by those who committed the said robbery as can be discerned from the admitted Exh. PEI and PE2, the PF3s. The appellant did not object to their admissibility when they were tendered in Court. Although there is no evidence to show that, the Court had reminded the-- accused -- -- - on -- ·- their - - - - - right -- t9 reqµes! fQr _tbe_ appearance of -- -- - - - - the person who made the report for cross examination by virtue of Section 240(3) of Criminal Procedure Act, Cap 20 RE 2002. There is also no dispute that those who committed the Robbery were armed. The trial Magistrate, had concluded that the identification parade conducted was not proper, since the 1st and 2nd accused were known to the witnesses but was satisfied that PWl identification of the appellant as being one of the culprits stating that "there was broad light which use solar power". Looking at the evidence of PWl so as to satisfy ourselves why the Court used the word broad light, because in the evidence of PWl or PW2, this word was never used. Although PWI used various description. In his evidence in chief, referring to the light PWl states; "the light which its source is solar energy". Also during cross examination he stated in the shop the light was on. During re examination, he stated. "I identified you because when we entered into the shop there was a huge light". So PW 1 used the word huge light. It is a finding of the Court that, this term used by PWl had the intention of presenting the brightness and intensity of the light. It is in evidence that PWl testified that he was able to recognized the appellant first, due to the light in the shop, second because the incidence took around 15 minutes so he had ample time to recognize him. Thirdly, that he had known the appellant from previous 5 visits of the appellant to the shop to purchase consumable goods, this was stated during cross examination by the appellant and examination in chief. In the evidence in chief, PWl testified that, the appellant was the one holding the shotgun and had spoken to him, telling him to stand while the other accused were picking the money in the box and also taking other goods. That the accused remained standing up while the others were picking up the money and items. When cross examined by the appellant (1st accused), PWl stressed that he knew the appellant from before, and the fact he only identified the appellant and not the others. On the other hand, PW2, in his examination in chief testified that he came to know the appellant after the incidence of robbery but he knew the 2nd accused because they lived in the same village. PW2 testified that, it was the 2nd ·and 3rd accused persons who were picking up the money when he ifbeen dropped, while Ill the shop. With reg~rd to light, when questioned by the Court, that ."the light in the shop is always on until in the morning". PW3, E 356 D/CPL Moses testified that, he was assigned the case on 4/8/2014 about 9.00hrs and he interviewed PW 1 an PW2 who informed him they had identified the accused persons and they knew them by their names residing in the same village. PW4, is the one who conducted the identification parade and he testified that he informed all the accused of their rights and the total number of people was ten. That he followed the Police General Order of conducting Identification parades. That the two witnesses, PWl identified the appellant and PW2, identified the 2nd accused. This Court having assessed the evidence related to the identification parade, , as testified by PW3, if PW 1 had stated he knew the appellant from before the incident. that being the case, we consider whether that being the position it was important for the identification parade to be conducted. Having examined Exh. DEl, the statement of PWl to the police which was taken on the 3rd of August 2014 at 13.59 hours. This can also be discerned from this statement Exh. DEI which was taken a few hours after the incidence where, PWl states: That in the shop, after it was broken into there was light. I managed to get the box with money and I threw it down. " Kutokana na mwanga huo ndipo 6 ,, ' niliwatambua watu vizuri hasa aliyekuwa na bunduki. Kwani yeye alikuwa amesimama na ameelekeza bunduki kwangu". Then he later states ... "Ndipo nilimtambua kati yao kwa sura akiwa mwembamba, maji ya kunde na mrefu .. " He also stated "nikiwaona naweza kuwatambua kwani muda was saa 20. 00hrs walifika wawili dukani kununua soda za Kapenji na Sigara ". That being the position, this court finds that with due respect had the trial magistrate properly considered the circumstances of this case, he would have found that the conduct of the identification parade was proper. This is because, from what can be discerned from the contents of DEl, PWl only stated he knew the person who attacked and robbed by description and not by name, that he had seen them shopping at the shop. This being the case, it is clear that the investigators were right in conducting the identification parade, because, the witness knew the culprits by face and not by name. Identification parades are conducted according to PGO No. 231 and 232 issued by the Inspector General of Police. This is by virtue of the powers bestowed on him under section 7(2) of the Police Force and Auxiliary Services Act Cap 322 of the Revised Edition, 2002. The Order stipulates mainly the procedure of conducting the parade, the rank of police officers who can conduct the same (in terms of Rule 2 (b) thereof, an Assistant Inspector and above), the rights of the suspect, and the making and maintenance of the records of that exercise at the end of it all. The need to comply with the procedure in this regard has been emphasized in many cases, such as Republic vs Mwango Minaa (1936)18 EACA 29 quoted in the case of Republic vs XC 7535 PC Venance Mbuta (2002) TLR 48 other cased include Francis Majaliwa Deus and 2 others v. Republic Criminal Appeal No. 39 of 2005, CAT (unreported) Raymond Francis v. Republic [1994] T.L.R. 100, and Maisa Lucas Mwita@Kipara v. Republic, Criminal Appeal No. 119 of 2011 (unreported). All these cases enunciating that where such procedure may not have been followed, the evidence becomes worthless. 7 In our particular case, having examined the testimony of PW4, who narrated how he prepared and conducted the Identification Parade and also addressing Exh. PE3 and the evidence of PWl one cannot really fault the identification Parade. The objection raised by the appellant was on the fact that he was dirty and neither of the people there looked like him. From the evidence there were ten people and the appellant was the eleventh and PWl had identified him. Exh PE3, shows, the appellant had signed the Identification Parade Register. While we understand the position of the law as stated by the court of appeal in the case of Abdul, Farijallah vs. R, Criminal Appeal No 99 of 2008(Unreported) "That it is trite law that the test in an identification parade is to enable the witness to identify a person or persons whom he or she had not known or seen before the incidents11.--We find the present--Gase,i-s-d-istingu-ishable, in-thaLthe_ said previous knowledge-is-one of a one- time factor, PWl stating, in DEl, I had seen-them when they came to purchase items at the shop and only knew by face and not name. We feel Identification Parade was important. With regard to the identification of the appellant, this Court finds that together with the evidence of identification by PWl, on the intensity of light, stating it was "huge light", and the fact that, PWl, had provided material information on reasons for identifying him, in evidence in Court, first stating, he was able to observe him in the shop which had light from solar energy source, also the incidence took around 15 minutes, and he had particularised the appellant as the one who had the firearm and the one who had stood while, the others were collecting money. This Court is satisfied that the appellant was properly identified within the standard set in Waziri Amani's case (supra). In Waziri Amani Vs. Republic (1980) TLR 250 pg.252 it was stated that, in identification cases, witnesses must always clearly state in their evidence conditions favouring a correct identification or recognitio~ of the culprits. In the case of Raymond Francis v R [1994] TLR 100 at 103 it was stated as follows:- " .. .It is elementary that in a criminal case where determination depends essentially on identification, evidence on conditions favouring identification is of the utmost importance." 8 I We also find that the evidence of PWI has been corroborated on various levels. The \ issue of one culprit standing and the others picking the money in the shop was corroborated by PW2 evidence and of application of s. 166 of the Evidence Act, Cap 6 is also relevant it states that; "In order to corroborate the testimony of a witness, any former statement, written or oral, made by that witness relating to the same fact made either at or about the same time when the fact took place or before any authority legally competent to investigate the fact, may be proved". It is obvious that when one goes through the evidence of PWI testified in Court it is corroborated by the contents of DEi on material particulars. This Court like the trial Court finds that the appellant was properly identified. On the other raised grounds of appeal, the issue of PF3, the Court finds even if the Court_ was to decide_not to consid_er_ it, in view of the fact _thctt Section 240(3)of CPA was not complied with, we find that this will not affect the evidence against the appellant which led to his conviction. While we are aware from various case laws that a trial court is duty bound to inform the appellant of his right to require the person who made the medical report to be summoned for cross examination, in this case the medical report and the injuries suffered were not very important having regard to the evidence available and relied upon to convict the appellant (see Mwanamaganga v R, Criminal Appeal No. 65 of 2005, CAT Mtwara Registry (unreported). Therefore this ground in effect has no merit. The issue of inconsistencies in evidence, of PWI as alluded to by the appellant, the Court finds that they were minor and do not go to the root of the matter on hand or the evidence against the appellant. With regard to the appeal ground raised by the appellant that his defence was not considered by the trial Court. Looking at the records before the Court, this has no legs to stand on, the trial Court considered the evidence of the appellant and other accused with regard to the conduct of identification parade and made a finding in favour of their submissions. The other evidence was of exculpating himself, so what was to be 9 considered? This Court has also considered the defence case with the issue of PF3 and made a finding on this. Therefore, having considered. the evidence carefully, the Court is satisfied that the appeal has no merit and it is hereby dismissed. W.B. Korosso Judge 27th July 2016 10