20170915 TZHC Dodoma1

I, ''ORIGINAL'' IN THE HIGH COURT OF TANZANIA DODOMA DISTRICT REGISTRY AT DODOMA CRIMINAL APPELLATE JURISDICTION DC CRIMINAL APPEAL NO. 09 OF 2017 (Originating from the District Court of DODOMA Criminal Case No. 348 of 2010) CASTO NGWIMBE ............................................ APPELLANT VERSUS THE REF!U_BLIC ............_._._ ......................_........ RESP_ONDENT JUDGEMENT -- - Mansoor, J-!-- 15TH September, 2017 This appeal arises out of the judgment dated OSTH September, 201-1-,--passed by -the--District Court~of -DODOMA-in Criminal--- - Case No. 348 of 2010, by which, the Appellant was convicted of the offence of Armed Robbery c/s 285 and 287 (a) of the 1 "ORIGINAL" Penal Code, Cap 16 R:E 2002. He was convicted and sentenced to Thirty Years imprisonment. The Appellant was aggrieved by the conviction and sentence, he appealed to this Court raising Five grounds of appeal that there was double standard as the co accused one Paul Meshack @ Ndalishe and Joseph John @Ngwabi were acquitted on the same evidence and he was convicted on the same evidence; that there was no proper identification and the principles of the case in Waziri Amani vs. R ( 1989) TLR 280 was not observed, as the source of the light and the distance of the person identified him was not enough, and that the trial Magistrate did not consider and properly evaluate his defense, thus the charge or offence was not proved beyond reasonable doubt. Brief facts of the prosecution case are that on 19 / 10/2010 at 21.00 hrs., the Appellant together with Paul Meshack @ Ndalishe and Joseph John @Mgwabi at Maluwe Area within the Municipality of Dodoma jointly and together stole THz 15,000, sandals valued at THz 28,000, Mobile Phone Make 2 ' "ORIGINAL" Samsung valued at THz 170,000, the property of Francis Bigambo and immediately before such stealing they cut him all over his body using a bush knife. The prosecution summoned two witnesses one Francis Bigambo, the victim and F. 1582 D/CPL Emmanuel. PWl, the victim, gave evidence that he knew the appellant since he had known him before the commission of the offence. That PW 1was familiar with the Appellant and that the visual identification was corroborated by a caution statement made by the Appellant. The Court therefore acted on the identification as well as on a retracted confession in convicting the appellant. The State Attorney appearing for the State, Ms. Kezilahabi supported the appeal on the ground that there was poor identification, and that the Trial Court erred in relying on a retracted confession without making an inquiry in order to find its truthfulness and whether the caution statement was made voluntarily. 3 "ORIGINAL" I agree with the first ground of appeal that there was double standard. PW 1, the victim gave evidence that he was attacked by three people and that he could not identify the person who stabbed him with a knife. This is sufficient reason of discarding the whole of the case of the respondent. As pointed out earlier, the proceedings were based on identical set of facts namely, 'the attacking of PWl by three people and stealing of the items mentioned. The cautioned statements recorded by , the police officers, a copy of which has been placed before .the Court, indicate that the charges framed against the appellant - were sought to be proved -by- PWl, the _Victim. __ Th_e gffence charged was not the offence of being found with a stolen property, but the offence of armed robbery. If the other two accused were not found guilty of the offence of armed robbery since it was not proved by the key witness and on the same evidence and same facts that they all together with the appellant committed the offence of armed robbery, then the whole case of the prosecution should be thrown out and the appellant be acquitted as well. Since convicting one offender while the charge was proved against all is indeed double 4 "ORIGINAL" standard, it would be unjust, unfair and rather oppressive to allow the findings against the Appellant, to stand. I agree with prosecution also that PW 1 was not able to state the source of light and the intensity of light which enabled him to identify the Appellant only. He was also not able to describe the distinctive features of the Appellant leaving doubt to his identification, as he could have mistaken him with somebody else. · I agree also that since the cautioned statement were - retracted; the Court ought to have conduc~ed _an enquiry. It was held in many cases that when the accused person retracts his confession the court must stop the proceedings and conduct an inquiry to inquire into the truthfulness and voluntariness· of the confession: "There is no doubt that a confession to an offence made to a Police officer is admissible in evidence. The very best of witnesses in any criminal trial is an accused person who confesses his guilt. However, such claims of accused pers_ons having made confessions should not be treated casually by courts of justice. The prosecution should 5 "ORIGINAL" always prove that there was a confession made and the same was made freely and voluntarily. The confession should have been ''free from the blemishes of compulsion, inducements, promises or even self-hallucinations." See, TWAHA ALI AND 5 OTHERS v R, Criminal Appeal No. 78 of 2004 CAT (unreported). This was said by their Lordships, the Justices of Appeal in the case of Paulo Maduka & 4 others vs. R, Criminal Appeal no. 110 of 2007, and CA at Dodoma (unreported) In the case of Twaha Ali & 5 others _vs. R, Criminal Case no, 78 of 2004 (CAT) unreported, which was quoted in the Paul Maduka's case (supra), The Court had held that:- " If that objection is made after . the trial . court has informed the accused of his right to say something in connection with the alleged confession, the trial court must stop everything and proceed to conduct an _inquiry (or a trial within a trial) into the voluntariness or not of the 6 "ORIGINAL" alleged confession. Such an inquiry should be conducted before the confession is admitted in evidence ... " Again, in the case of Seleman Abdallah and 2 others vs. R, Criminal Appeal No. 384 of 2008, the Justices of the Court of Appeal had insisted (at page 9) that: "We wish first to point out that a confession voluntarily made by an accused person to a police officer of, or above the rank of corporal, is admissible in evidence. However, -- - ·-- -- ~- -·in-orderfor- su-ch-sta-tement-to .be__admitted__ir,,_gl[j<J~ns:'!!.., the -- - - - - - - - - -, prosecution must prove beyond doubt that the same was made voluntarily. If it is not shown it was not voluntary made, the triaL court__ is_ empoJ»e!ed__to_ reject it. This is provided under section 27 of the Evidence Act, Cap 6 R: E 2002 ... " Since the court did not conduct an inqury it was wrong to convict the appellant based on his retracted confession and on a poor and uncorroborated identification. 7 . "ORIGINAL" Consequently, and based on the above, this appeal has merit and is allowed; the conviction is quashed and the sentence is set aside. The Appellant is ordered to be released from prison unless he is otherwise lawfully held It is ordered accordingly L.~~R JUDGE 15 th September 2017 Judgement delivered 1n Court today in the presence of the Appellant, and Ms. Magiri, State Attorney for the Respondent Republic and Mr C.A.Chali the Court Clerk. L.&.ooR JUDGE 15th September 201 7 8