20170720 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CRIMINAL APPEAL NO. 309 OF 2016 (Originating from the District Court of Temeke at Temeke, Criminal Case No. 141/2015) JUSTINE GODFREY APPELLANT VERSUS THE REPUBLIC ..••..•.• RESPONDENT JUDGMENT Date of last order 13/7/2017 Date of Judgment 20/ 7I2017 KITUSI,J It is alleged that on 6 th July, 2015 at Yombo Machimbo area within Temeke District in Dar es Salaam Region, Justine Godfrey stole a total of Tshs. 8,000,000/= the properly of one Hadija Salehe Abdallah and that he managed to do so by threatening Omary Hamis with a pistol. Therefore the said Justine Godfrey herein the appellant was arrested and charged with Armed Robbery contrary to section 27 A of The Penal Code, CAP 16 R.E. 2002, as amended by Act. No. 3 of 2011. 1 -..l In brief the prosecution's case was that Hadija Salehe (PWl) is a Treasurer of a Village Community Banking popularly known as VICOBA. In that capacity, PWl had Tshs. 8,000,000/= at her home, kept in a bag when two people called at her said residence at Yambo Vituka on 6 th July, 2015 at around 10:00am. Omary Hamis (PW3) who is PW l's son was there taking his breakfast. The unknown two visitors entered the house and one of them produced a gun and pointed it at PW3 and ordering PWl and PW3 to kneel down. The other entered into the bedroom and took the bag containing the money then they made away with it using a motorcycle which they had earlier arrived with. PW 1 raised alarms which was responded to by people who went to her residence. When she told them what had happened the mob went after the villains. PWl's husband, one Said Mrisho (PW2) went back home upon receiving his wife's call informing him about the robbery. When he arrived home he was taken to the Airport area where he found a large crowd of people and a motorcycle. PW2 was told that the culprit had been 2 arrested and that the motorcycle seen there belonged to him. A detective Sgt. Matiku (PWS) testified that he recorded the appellant's cautioned statement on 9 th July, 2015 and that in the course of making it he implicated himself. The statement was admitted as exhibit P2, the trial court ruling against the appellant's objection as having no merits. The appellant's objection was that the statement had been taken out of time, but the learned trial magistrate overruled that objection without ado, by a single line ruling. In defence the appellant gave an account of how he being a motorcyclist was riding his motorcycle with a passenger around JET area and how he was somehow surrounded by a mob of other motorcyclists (bodaboda) at a Traffic light junction and they suspected his (appellant's) motorcycle to belong to their colleague and suspected him of having stolen it from him. He was taken to police where he was remanded in custody for a week before being beaten and lined up for a parade of identification. 3 The appellant's defence is that he did not commit the alleged robbery and that the police tortured him to the extent of shooting him on the foot. The trial court sentenced the appellant to a jail term of 30 years. The appellant has come to this court with an appeal against the sentence although the petition of appeal raises 5 points that challenge the trial court's decision in finding him guilty. When the appeal came for hearing both the court and Ms. Selina Kapange, learned State Attorney noted that the trial court omitted to enter conviction on the appellant. The learned State Attorney was invited to address the point. In her brief submission the learned State Attorney stated that the trial court's omission to enter conviction is a violation of section 235 ( 1) and 312 of the Criminal Procedure Act, Cap 20, hereafter the CPA. The learned Attorney went on to submit that ordinarily she would have prayed for an order that the casefile be sent back to the trial court for it to enter conviction, but she thought this is not a fit case for her to exercise that option. 4 The law is very clear that sentence will be pronounced to a person upon him being convicted in terms of the requirement under section 235 (1) of the CPA. That means the powers of the subordinate court to sentence an accused person, under section 170 (1) of the CPA cannot be exercised before a conviction is entered under section 235 (1) of CPA. These is a host of caselaw to the effect that when that is not done, the record shall be returned to the trial court for it to enter the conviction. The learned State Attorney has submitted that the prosecution evidence as to identification was weak in this case. She submitted that the prosecution witnesses did not describe the alleged thief to anyone before the arrest of the appellant later on that day. She referred to the identification of the appellant as dock identification which in her submission is not sufficient. With respect I agree with the learned State Attorney that the prosecution witnesses, PW 1 and PW3 did not describe the thieves. Both PWl and PW3 said they had never seen the thieves before but were able to identify him at the police. However since no identification parade was 5 c::\ prepared to facilitate a reliable identification the mode of identification employed by the prosecution was unreliable and could not form a ground for a conviction. There is another point which vitiates the proceedings at the trial and the conclusion reached. This is that the court did not consider the defence case, because if it had, it would not have concluded as it did, that the appellant took part in the robbery. What appears from the defence is an admission by the appellant that he rode the thief to the scene him being a dealer of motorcycles for hire, popularly known as (bodaboda). In the appellant's cautioned statement, though admitted (Exhibit P2) against section 50 of the Criminal Procedure A.ct Cap 20, the appellant stated that he never entered the house, and was forced to drive off by the fugitives. This brings up the question whether PW 1 and PW3 identified the appellant whom they never even saw. Therefore the learned State Attorney's submission that the dock identification in this case was unreliable is supported by the fact that the appellant never entered the house so PW 1 and PW3 could not possibly have identified 6 • (!j:' him. Even assuming that the appellant aided the commission of the offence in this case under section 22 ( 1) (c) of the Penal Code, it would not be possible to charge him without the principal perpetrators. In fine I allow this appeal, quash the proceedings and set aside the sentence. The appellant should be set at liberty forthwith if not lawfully held for some other cause. ~ I.P. Kitusi JUDGE 20/7/2017 7