michael joseph nyamwanji another vs republic 2017 tzhc 2256 26 may 2017

IN THE HIGH COURT OF TANZANIA AT DODOMA (APPELLATE JURISDICTION) (DC) CRIMINAL APPEAL NO. 22 OF 2017 (Original Criminal Case No. 76 of 2016 of the District Court of Kongwa at Kongwa) MICHAEL JOSEPH @ NYAMWANJI @ ANOTHER........ APPELLANTS VERSUS THE REPUBLIC........................................................ RESPONDENT JUDGMENT 21/4 & 26/5/2017 KWARIKO, J. Appellants herein and two others then MICHAEL KUSENHA MALIMA and ELIAH WADILONGA the first and second accused persons respectively were jointly and together charged before the District Court of Kongwa with the offence of Armed Robbery contrary to section 287 A of the Penal Code [CAP 16 R.E. 2002] (sic). The three were accused that on 12/11/2015 at 00.30 hours at Iduo Village in Kongwa District Dodoma Region had stolen from NEEMA D/O LENJOLE one firearm make shortgun Registration No. 007680012, 24 bullets and cash money Tshs. 400,000/= properties of the said NEEMA LENJOLE and used firearm made Gobore to threaten her in order to obtain and retain the said properties. Having denied the charge the prosecution paraded a total of eight witnesses to prove the same. The evidence by the prosecution can be recapitulated as follows. Whilst on the material date and time when NEEMA DAUDI, PW4 was asleep at her home four bandits broke in and demanded money from her. When she said had no money was beaten and the bandits searched under the mattress and on the table where a total of Shs. 400,000/= was taken. The bandits had firearm made muzzle loader gun (Gobore) and knife. They also stole one shortgun and 24 bullets. PW4 said identified the third and fourth accused persons who are the appellants herein by use of solar light. As PW4's husband DAUDI LENJOLE, PW1 was not home PW4 called him on phone who in turn informed his brother one JUMA LENJOLE, PW2 who visited the scene and followed-up footprints and motorcycle tyres' marks where two bullets were found. PW3, MAUNE KALASHI, Sub-village Chairman who was informed of the incident by PW2 visited the scene and found broken door. He informed the Ward Executive Officer. This incident was reported to Police Station where No. G 1699 DC MOHAMED, PW5 was assigned to investigate the case and in the course the first accused was arrested who mentioned the remaining three and led to their arrest. This witness said did take the first accused's cautioned statement which he objected in court but upon inquiry being conducted it was found admissible, was admitted and marked exhibit P2. Additionally, INSPECTOR DEUSDEDIT, PW6 said did conduct identification parade in respect of this matter where a woman witness identified accused persons including appellants herein. In their defence the appellants and others essentially denied the allegations against them and discredited the prosecution case. At the end the trial court found that the charge was sufficiently proved against the appellants as there were proper conditions for identification at the scene by PW4 hence they were found guilty and convicted. They were sentenced to thirty (30) years in prison each. The other two accused persons were acquitted. Having been dissatisfied by the trial court's decision the appellants filed this appeal each upon fourteen (14) grounds of appeal identical to each other in content. However, the grounds of appeal raise the following four essential grounds of complaints; 1. That, the evidence of visual identification by single witness was not sufficient 2. That\ the trial court erred to convict the appellants in the basis of co-accused who was himself acquitted. 3. That, the evidence in respect of identification parade was not sufficient 4. That, the prosecution case was not proved beyond reasonable doubt against the appellants. On the day this appeal was called for hearing the appellants did not have anything to add to their grounds of appeal hence left to the learned State Attorney to respond. It was Ms. Luwongo learned State Attorney who appeared to argue the appeal on behalf of the respondent Republic where she did not oppose this appeal. Her submission to that effect will be referred to in the course of this judgment. Therefore, the issue which pose for decision now is whether the appeal has merit. I will decide the grounds of appeal seriatim as follows; As regards the first ground of appeal this court is in full agreement with both parties that PW4 did not give sufficient evidence as to identity of the assailants to be the appellants herein. First PW4 did not explain the intensity of solar light that she said was used to identify the attackers. She also did not give description of her attackers. I get support in the foregoing stance in the case of BUSHIRI AMIRI VR [1992] T.LR 65. Further, if PW4 identified any of the attackers but surprisingly the people who responded to the scene including PW2 and PW3 did not say that PW4 told them of the identification, instead these people started to follow footprints from the scene. Therefore, this ground of appeal has merit. In the second ground of appeal this court find that although the first accused's cautioned statement was not used to convict the appellants but the same was illegally admitted in court since it was taken against the law under section 57 (2) (a) of the Criminal Procedure Act [CAP 20 R.E. 2002] as it was not in the form of questions and answers. This statement was only a narrated story hence contrary to law. Also, as rightly complained by the appellants it is surprising that, if the first accused confessed and his cautioned statement admitted in evidence the trial court did not give reason why it had to acquit him of the charge as the law says that the best evidence comes from accused himself. Now, since exhibit P2 was illegally admitted it is hereby expunged from the record. This ground of appeal succeeds in part. The appellant's complaint in the third ground of appeal relates to identification parade that was said to have been conducted. This court has gone through the evidence by PW6 who purportedly conducted identification parade where he said appellants and others were identified by a woman witness. This witness did not say who that woman was and who among the suspects that she identified. Actually, PW6 did not give evidence to satisfy criterion used to conduct identification parade as enunciated in Police General Order 231. Thus, as rightly submitted by the learned State Attorney it is very doubtful as to whether there was really identification parade worth its name. Instructions in respect of identification parade were also sufficiently covered in the case of MWANGO S/O MANAA VS. R [1936] 3 EACA 29 which in essence are echoed in the said Police General Order 231. Now, since the law was not complied with one cannot say that there was any identification parade and surely no any witness came to court to say that he was a witness subject matter of the parade. Therefore, this grounds of appeal has merit. The last ground of appeal is that the prosecution case was not proved beyond reasonable doubt. I agree with the appellants that for what has been shown in the preceding grounds of appeal the prosecution case at the trial was not free from glaring doubts. And since the case was not proved beyond reasonable doubt conviction against the appellants did not deserve. In fine, this appeal has merit and it is hereby allowed, conviction against the appellants quashed and sentence set aside. It is ordered that the appellants be set at liberty unless their continued incarceration is related to other lawful cause. It is ordered accordingly. JUDGE 26/5/2017 Judgment delivered in court today in the presence of the Appellants Dr the Respondent Republic. JUDGE 26/5/2017