20171005 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM CRIMINAL APPEAL NO. 394 OF 2016 . 1.ALLY HAMIS MBATI 2.SAMWELI THOMAS DAVID .................................. APPELLANT VSERUS REPUBLIC ................. ·~·· ............................................ RES PON DENT 23/8/2017 &5/10/2017 JUDGMENT I.P.KITUSI,J. Before the District Court of Kinondoni at Kinondoni, Ally Hamis Mbati and Samweli Thomas,· the first and second appellant . respectively, were charged with ·Armed Robbery under section 287 'A' of the Penal · code. It was alleged that the two appellants stole from one Elizabeth Kichonge Mahende Shs. 7,000,000/= on 25th April 2014 at Bahati Beach area within Kinondoni District, Dar es Salaam Region and that they 1 threatened her with a gun in order to obtain and retain the stolen money. Elizabeth Kichonge Mahende (Pwl) was the prime witness for the prosecution and related how two runaway motorcyclists confronted her with a gun and demanded her to release her handbag at 6.00 a.m. on 25th April 2014 as she was walking to a Bus stop. Pwl testified that it is about 10 to 15 minutes from her residence at Bahari Beach to the Bust stop but before she had reached the said Bust stop the motorcyclists emerged and took away the bag under gun point used by the 2nd appellant. The 1st appellant was the driver. The bag, according to Pwl had cash Tshs 7,000,000/= and identify cards belonging to Pwl and her child, and it was after the thieves had left that Pwl raised alarms, but she got no assistance. Pwl reported the robbery at Police station. Pwl further stated that the robbery was executed swiftly in a space of about 5 minutes but since the culprits did not cover faces, she managed to identify them. Pwl was, according to Inspector Godfrey (Pw3), able to pick the first appellant from the identification Parade which he had prepared. As against the 2nd appellant it was testified by A/Inspector Shaban 1 Shilla(Pw4) that he confessed to have commited the robbery. Second appellant's cautioned statement recorded by Pw4 was admitted as Exhibit 'A'. It was one D/sgt Masunga (Pw2) who recorded the first appellant's 2 cautioned statement and he tendered it in court. The same was admitted in evidence though the record does not show that it was marked. The two appellants were interrogated having been previously arrested and it is DC Giera (Pw6) who testified on the said arrest. It is not dear from her as to what prompted Pw6 to go for the appellants maybe it was sixth sense, She found them owning new motorcycles and using them commercially as 'bodaboda' and that when they were required to explain how they got those motorcycles they told Pw6 that they purchased them from the money that they had stolen from Pwl. These motorcycles were tendered in exhibit as PE7 and PE8, but not before an object by the appellants who claimed to be lawful owners of the motorcycles and specifically the first appellant stated; ".......... the case here is whether I {sic) have armed robbed the complaint's money and mobile phone" D/C Athuman (Pw7) was among the arresting officers and his was corroborative evidence to that of Pw6. It is relevant to mention at this state that admissibility of the appellants' cautioned statements was far from smooth, owing to their objection. They both repudiated their respective statements, first appellant disowning the signature purporting to be his. At this stage the trial court adopted a procedure which is subject of discussion, in that she had specimen signature of the first appellant taken right in court for analysis by a handwriting expert who testified in an inquiry. At the end of the inquiry the statement were admitted. 3 In defence the first appellant narrated how he stumbled upon a group " bodaboda" riders throwing stones at a motor vehicle that had knocked a fellow bodaboda rider and how policemen turned up at the scene to intervene. He ran away when the police fired in the air to scare the mob away but returned to the scene later to collect his motorcycle only to be arrested. The police had seized several other motorcycles belonging to fugitive riders, so they demanded the first appellant to name them. The first appellant could not name the fugitives for the reason that they were strangers to him, and this caused the police to prefer charges of armed robbery against him. He denied to have committed the offence. The second appellant's story was that he was taken in custody after being involved in a road accident where by a vehicle he had been driving was knocked by a vehicle belonging to the police. According to him he was a victim of the accident, yet the police arrested him and implicated him with possession of a gun and involvement in armed robberies. He was then subjected to serious assaults by the police who wanted to force a confession out of him mentioning strange names as his associates. Second appellant referred to Pwl 's statement in court as being contradictory to the statement she had earlier recorded at the police, which he tendered as Exhibit DEl. He also challenged the procedure of using a handwriting expert in the Inquiry. The trial court found the appellants guilty on the basis of the evidence of visual identification by Pwl who also identified them during the parade of identification conducted by the police. She also found the 4 evidence of Pwl as corroborating the cautioned statement of the appellants. She attached value to the testimony of the handwriting expert whose conclusion during the inquiry was that the second appellant is the one who signed the statement. It was further the trial court's conclusion that the defence case had not introduced any reasonable doubt in the prosecution's case. It went on to convict them under section 235(1) of the Criminal Procedure Act Cap 20. The appellants have raised for grounds each and five supplementary each, but centrally is the issue of visual identification and whether the prosecution proved the case beyond all reasonable doubts. Ms Dhamir Masinde learned State Attorney supported the appeal on the ground that Pwl did not describe the culprit to the police. She also submitted that the police who arrested the appellants did not explain why they executed the arrest. And thirdly the learned State Attorney submitted that the cautioned statements were admitted in violation of Section 50(2) of the Criminal Procedure Act. I drew the State Attorney's attention to the conviction having been entered under section 235(1) of CPA and she submitted that it was wrong. The appellants unrepresented, had nothing to say in support of their appeal. With respect I entirely agree with the learned State Attorney in that the trial court did not address its mind on the principles governing evidence of 5 visual identification. She did not consider the now- common position as stated in the case of Dorika Kagusa Versus Republic, Criminal Appeal No. 174 of 2004, CAT (unreported), that; "it is trite law that in a case depending for its determination essentially on identification be it of a single witness, such evidence must be watertight if it is evidence of recognition" In this case Pwl gave an account of how the robbery took place at 6.00.a.m. and how it was swiftly executed within five minutes with a gun stuck out her head. Did the court consider the possibility that Pwl may not even had the time to take a look at the assailants?. I am afraid not. In yet another case in John Kulwa @ Kusekwa & Another Vs Republic, considered in eliminating the possibility of mistaken identity as follows; "These may be summarized as follows; How long did the witness have the accused under observations? At what distance? In what light? Was the observation impeded in any way? Had the witness ever seen the accused before? How often? What interval had elapsed between the original observation and the subsequent identification to the police" Had the trial court considered the foregoing factors, it would not havae approached the evidence of Pwl as gospel truth. I wish also to consider the issue whether the defence case was considered. I will discuss this along with the point raised by Ms Masinde, that the arrests of the appellant were not rationalized. Once again I agree 6 7 · · with the learned State Attorney thaf there is simply no clue as to why the poUce arrested the appellants. It is like a drama in my view in which the first scene involving robbery has not connection at all with the second scene involving the arrests. Perhaps the defence case makes more sense as to what led to their arrest but for no apparent reason the learned trial magistrate ignored it. In Msafiri Hassan Masimba Versus Republic, Criminal Appeal No. 302 of 2015( unreported) the court of Appeal emphasized the settled law that failure to consider the defence vitiates the convictions. It cited with approval, the cases of Hussein Idd and Another Vs Republic [ 1986] T.L.R 166 and; Siza Patrice Vs Republic Criminal Appeal No. 19 of 2010 CAT · (unreported). With respect to the learned trial Resident Magistrate the conviction .was based on improper analysis of the evidence and must be quashed. But there is another which Ms Masinde's attention was drawn to. The trial court purported to enter her conviction under section235 (1) of the Criminal Procedure Act (CPC). The said provision reads; · " 235 - (1) The court, having heard both the complaints and the accused person and their witnesses and the evidence, shall convict the accused and pass sentence upon or make an order against him according to law or shall acquit him or shall dismiss the charge under 38 of the Penal Code'~ 7 J The above provision is among others I the CPA that set out the stages of a criminal trial before subordinate Courts. To illustrate this point let me refer to the other provisions. Section 288 relates to accused's plea but it is never a requirement that the proceedings should reflect that one's plea has been taken under section 228 of CPA. Section 229 is a requirement to record evidence upon a plea of Not Guilty, but it is just a provision to guide magistrates on what to do next. Similarly section 235 - (1) of CPA guide a magistrate on what to do, but it need not be cited, for a person is convicted for the offence with which he is charged. Having said the above by way of obiter, I quash the conviction and set aside the sentences. The appellants should be released forthwith if not otherwise lawfully held. ~QL~ I.P.kguSI JUDGE 5/10/2017. 8