20170823 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM CRIMINAL APPEAL NO. 25 OF 2017 (Originating from Kinondoni District Court at Kinondoni in Criminal Case No. 87 of 2015) AMANI EMMANUEL KAGODA MWANGALA ....................APPELLANT VERSUS THE REPUBLIC. ■■ •• ■■■■ I ■■ ■• ■■■ I. ■■■ ••• ■■■■■• ■ I ■ I. 11 I •• ■■• ■ •• ■■■ ••• ■■■ RESPONDENT Date of Last Order: 02/08/2017 Date of Judgment: 23/08/2017 JUDGMENT A. Munisi, J. Amani Emmanuel Kagoda Mwangwala stood before the District Court of Kinondoni at Kinondoni charged with two counts of Armed Robbery contrary to section 287 A of the Penal Code. In the 1st count it was alleged that on 25/1/2015 at Mikocheni B area, within Dar es Salaam City, the appellant with another person who was acquitted stole various shop items total valued at 874,000/= and cash money Tshs 270,000/= the property of Iddi Aron Tulia and that immediately before such stealing they• did use a gun to threaten Timoi Kisiumu and Elias Paschal Salehe in order to obtain , and retain the said items. In the 2nd count the appellant and his colleague were on the same day accused of stealing a shotgun with serial No. 05018108 valued at Shs 3,500,000/=, the property of M/s General Guard and Office Cleanses and immediately before such stealing, they threatened 1 ,, one Elias Paschal Salehe with a pistol in order to obtain and retain the said property. To prove the allegation Prosecution called six witnesses and the appellant testified on his own behalf and did not call any witness. At the conclusion of the trial, the trial court connected the appellant and acquitted the 2nd accused person. Dissatisfied, appellant has preferred the present appeal based on 8 grounds of appeal. The complainants therein revolve around the following areas: - 1. Unreliable visual identification. 2. Non-compliance with P.G.O. No. 232(1) & (5) 3. Contradictions within PWl & PW5's evidence. 4. Unprocedural admission of cautioned statement. 5. Insufficiency of evidence to support conviction. On 2/8/2017 when the appeal was called on for hearing appellant appeared in person unrepresented while the Republic/respondent was being advocated by Ms. Sabrina Joshi learned Senior State Attorney. Submitting in support of his appeal, appellant contended that, he was identified unprocedurally as the person who identified him in court (PWl) had seen him in the lock up previously and initially they were both remanded together. He also argued that exhibit Pl was admitted irregularly. He insisted that as he was not properly identified his appeal should be allowed. Miss Joshi, learned Senior State Attorney on her part supported the appeal on one main ground that appellant was not properly identified. She elaborated that the evidence showed that the incident occurred in the early hours of the morning which was not favourable for positive identification. 2 " Relying on the case of Waziri Amani VR (1980) TLR 250, she insisted I that the conditions obtaining at that time of the night were not ideal for positive identification with regard to the complaint on the regularity of the ID parade, she conceded that the same was not conducted in accordance with P.G.O. 232 (5). She also conceded that the cautioned statement was irregularly admitted. She thus joined hands with the appellant and prayed for the appeal to be allowed. The appellant rejoined by referring the court to the case of Selemani Abdallah and 2 others VR Criminal Appeal No. 384 of 2008 (unreported as supporting the proposition that the cautioned statement was irregularly admitted. He reiterated his prayer to have his appeal allowed. I have given due scrutiny to the trial court's proceedings together with the oral submission by the appellant and Ms. Joshi, learned Senior State Attorney. I have no doubt determination of this appeal rests on whether the appellant was positively identified. The trial magistrate was satisfied that PWl identified the appellant positively and that this evidence was corroborated by PW2 who recorded the confessional statement of the appellant and pw5 who conducted the identification Parade. Having considered closely the way the cautioned statement was admitted. I have no doubt the same was admitted irregularly as no inquiry or trial within trial was conducted. (see the case of Seleman Abdallah and 2 others (supra) similarly the identification parade was conducted contrary to PGO 232(5). I thus agree with Ms. Joshi that the two documents will have to be expunged from the record. The issue is whether after expunging the two documents there is still credible evidence to sustain the conviction. 3 • The only other evidence is that of identification to the effect that PWl identified the appellant on the fateful day. PWl told the court; thus:- "- These are the persons who came at my working place and take my weapon. I was at my duties it was about 05:00 hours. There came two people. - First accused was at front he came showed me. pistol and say "uko chini ya ulinzi". I was also ordered to sleep down and I did slept Kifudifudi while down there I heard "mlio wa kuvunja". I identified the (sic) both first and second accused as I did see them at the scene of crime. The first accused had "mvi" and the second accused was as he is now". Upon cross-examination, PWl admitted that he did not know the appellant prior to the date of offence. Form the substance of PWl's evidence it is clear that he admitted that did he not know the appellant prior to the commission of the offence. It is also apparent that he did not mention any aid that helped him to identify the appellant at such odd time of the night i.e. 05:00 am. It is settled law that the evidence of visual identification is the weakest kind of evidence particularly when conducted in unfavourable conditions as per Waziri Amani. In the absence of any explanation with regard to the nature of 4 • the light existing that enabled the identification, the distances involved or any other aids, t_he evidence of PWl cannot sustain the conviction entered against the appellant. As there is no other evidence to support the conviction appeal has merit. Accordingly, the appeal is allowed, the conviction quashed and sentence set aside. The appellant is to be sed from Prison fort/ with unless otherwise lawful! A.Mu JUD 23/8/ 23/8/2017 Coram: Hon. Mu For the Appellant: Present For the Respondent: Aziza Mhina, SA C.C: H. Almasy. Judgment delivered in chambers in the presence of the appellant in person and in the presence of Miss Aziza Mhina learned State Attorney for the respondent/Republic, this 23/8/20 5