20170814 TZHC Dar es Salaam

Lt~ IN THE HIGH COURT OF TANZANIA AT DAR E;S SALAAM CRIMINAL APPEAL NO. 89 OF 2016 (Originating from the District Court of Morogoro at Morogoro, Criminal Case No. 39 /2009) 1. SUDI JUMA ........ 1 ST APPELLANT 2. BERNARD ROCK 2ND APPELLANT VERSUS THE REPUBLIC ..••.••.. RESPONDENT JUDGMENT Date of last order 3/8/2017, Date of Judgment 14/8/2017 KITUSI,J SUDI JUMA and BERNARD ROCK, the first and second appellant respectively were the 3 rd and 4 th accused before the District. Court of Morogoro at Morogoro where they were charged with Armed Robbery Contrary to Section 287A of the Penal Code, Cap 16. They were convicted and sentenced to 30 years imprisonment each. It was alleged during the trial that on 29 th December, 2008 at around 03:00 hours at Manzese area within the Municipality and Region of Morogoro the appellants with two others who were acquitted, stole from one Fulkan 1 Nyagala one cellular phone make Nokia valued at Tshs. 90,000/= and cash Tshs. 360,000/=, all property valued at Tshs. 450,000/= and imm~diately before such stealing used a bush knife to cut the said Fulkan Nyagala, in order to obtain the property. The case for the prosecution was that Fulkan Salum, (PWl), (I take him to be Fulkan Nyagala) was a driver and used to park his vehicle at a Bar belonging to one Mzee Mshauri. PWl knew the second appellant well since he was still a youth, and as he used to frequent at a place where he PWl normally went to wash his car. On 28 th December, 2008 PWl was walking away from Mzee Mshauri's Bar after parking his car when a group of youths attacked him. PWl resolved to confront one of them and engaged him in a fight that sent him down, causing the said youth's mask to fall off his face. With the mask off, and with a tubelight from the Bar providing light, PW 1 was able to identify· the attacker as the second appellant whom as I have already stated, he knew well. 2 When it looked like PWl had overpowered the 2 nd appellant, the said second appellant shouted to his fellow assailants to attack him. So PWl was attacked by machetes as a result he fell down and raised alarms to seek help but nobody was brave enough to offer help because the assailants threatened :violence against anyone who would dare. After taking from PWl his mobile phone, cash (Tshs. 360,000/=) and the ignition key for the car, the assailants damped him at Manzese area. He was given help by good Samaritans and taken to police where a PF3 was issued. PWl stated that when he met the 2 nd appellant at police, he inquired from him the reason for doing what he did to him. To this, the 2 nd appellant is said to have simply asked for forgiveness. One Baraka Sanga Simba (PW2) testified that he heard PWl cry "Bernard Unaniua" meaning "Bernard, you are killing me". He testified that despite the threats of the youth to any would be helper, he was not intimidated . because he was drunk. However when he got to where 3 PW 1 was lying bleeding from the IIlJUr1es, the assailants had gone. The prosecution alleged that the 2 nd appellant made a confessional statement which was recorded by one D/CPL Zefania (PW3). Despite objection by 2 nd appellant that he had been tortured into signing the statement he never made, it was admitted as Exhibit Pl. During his defence the 2 nd appellant took time to narrate how he was tortured and that he was forced to sign it, even his request to be given an opportunity to read the statement fell on deaf ears. He testified that his arrest was for being suspected to be a vagabond. The first appellant denied to have taken part in the alleged robbery and pointed out the fact that he was not identified by the victim (PWl) at the scene. He stated that he was away from Morogoro when the offence was allegedly committed. The trial court convicted the second appellant on the basis that he was identified by PW 1 during the scuffle at 4 the scene of the robbery. The first appellant was convicted on the strength of cautioned statements despite the fact that the same were repudiated. Although the appeal has eleven grounds - six for the first appellant and five for the second, it raises mainly one issue that the prosecution did not prove the case beyond reasonable doubt. The appeal was supported by Ms Veronica Mtafya, learned State Attorney who represented the Republic. She briefly submitted that the evidence of visual identification was insufficient because it did not disclose the intensity of the light, and how far from the scene, the source was. Her second point was the cautioned statement of the first appellant which she submitted to have been improperly admitted. She prayed that the cautioned statement be expunged, and cited the case of Jackson Zebedayo Wambura & another Versus The Republic, CAT, Criminal Appeal No. 213 of2015 at Dar es Salaam (unreported). I entirely agree with the learned State Attorney that the conviction was bad for the two reasons. Although the 5 learned trial magistrate appears to have appreciated the tricky nature of the evideJ:?-ce as to visual identification nowhere did he indicate how he eliminated possibilities of mistaken identity. Similarly the cautioned statement having been repudiated, was irregularly acted upon. The case of Jackson Zakayo Wambura (supra) is an authority for both points. There is another glaring error that was committed by the trial court, and that is failure to consider the defence. The trial court does not clearly show how and why it rejected the defence case which had raised among others, an alibi. Failure to consider the defence case is a fatal irregularity. Accordingly this appeal is for the reasons shown, allowed. The conviction is quashed and the sentence is set aside. The appellants to be set at liberty unless lawfully held for some other cause. ---====~---- ~ \ usi JUDGE 14/8/2017 6