20171102 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA (DISTRICT REGISTRY AT DAR ES SALAAM) AT DAR ES SALAAM CRIMINAL APPEAL NO. 416 OF 2016 CH EDI HAU LE ................................................. .APPELLANT VERSUS REPUBLIC ....................................................... RES PON DENT 15/9/2017 & 2/11/2017 JUDGMENT I.P.KITUSI,l. Chedi Haule, appellant, is appealing against the decision of Kinondoni District Court where he was charged, convicted and sentenced to thirty (30) years imprisonment for Armed Robbery Code Cap 16. It was alleged at the said trial Court that on 18th December, 2014 at Mikocheni 'A' area within Kinondoni District, Dar es Salaam Region the appellant stole from qne Valentine Yona a handbag containing a mobile phone known as Tablet, cash, Shs 16,000, a novel and sunglasses and used· a knife to the said Valentine Yona to facilitate the stealing. 1 ---- ---·· - _, ---·- ,_.,.____ -~ _........,_,., -· - . . -·~-~-· . --· ... ... ·--- ___,.___ ~-~ .... >-•---· - . ----- , --- -· - --· - ·-·-·- - ••.• ·"" ~- ;,j . .,, ··- .. ·::.~ ·::, ' . ·. . ". . . :. At the trial, Valentine Yona testified as Pw3 and told the following story; On 12th December, 2015 at 19.00 hours while walking from Shoppers Plaza area a motorcyclist approached her and made an attempt to grab her handbag but the attempt failed. The motorcyclist went away and Pw3 continued walking but she asked for protection from another pedestrian in front of her whom she described as having been a foreigner. On the foreigner's suggestion Pw3 went with him to his residence which was nearby so that from there she could call for transport. On reaching the foreigner's residence, he went in the house while Pw3 waited outside. That is when Pw3 saw the same motorcycle approach her again but this time carrying one more person. She said as the place was illuminated by electricity light she could see the two people on the motorcycle, one wearing a red T- shirt and another wearing a black T - shirt. She identified the appellant as the one who was wearing a black T- shirt. Pw3's testimony was that it was the appellant who attacked her with a knife and cut her on several parts of her hand and grabbed her handbag as she held on to it. She fell down while holding on to the handbag with the appellant pulling. Pw3 said she sustained injuries as a · . result of being dragged on the ground in· the course of the scuffle. Finally the assailant overpowered Pw3 and took possession of the bag. ,.. . Pw3 further stated that people on a motorcycle and a motor vehicle · passing by the scene saw this as the assailants ran away. They decided to pursue them by using their motorcycle and shortly later they brought the 2 - - - - - - -- - - - - - - - - ___________ · - · - - - - - - - - - - - - - - - - - - ----- - ., - -- - ---·----- •.. . --- ...........,. ... ~ •. • • •-~--••-~- - --•• >A••• • • ----• •- • ~ J ••••••• t .•,•.,: . ..;.•· appellant holding the handbag and its contents. The good Samaritans asked Pw3 whether the man they had captured was her assailant and she said he was the one. Report of the robbery was filed at Oysterbay Police Station where a Pf3 was issued to Pw3 for her to get medically examined. Detective Sgt Salum (PW2) testified that he recorded the appellant's cautioned statement, and tendered it in court as Exhibit Pl. This was after the appellant's objection that he was not given the right to make his statement in the presence of his relative or lawyer was overruled by the court. Pw2 stated in his testimony that the appellant was handed over to the police by motorcyclists who were riding two motorcycles, carrying the appellant in one and Pw3 in another. According to Pw2, the appellant confessed to have committed the alleged robbery on 18th December 2015, the same date he was handed over to the police. In his brief defence the appellant stated that he was arrested at Coco Beach on 25/12/2014 and was kept in police custody for seven days. He was given some papers to sign and he did sign them before being asked, on the next day, questions relating to a case he knew nothing about. He said he was first charged in court on 28/1/2015 before Hon. .Kuppa,_ RM who dismissed the charge and discharged him on 15/9/2015. . . When cross - examined, the appellant stated that he could not recall where he was on 18/12/2014. 3 ---- ----- ... ··- ........ ____ _ . The trial court's finding was that the appellant is the same person who was found in possession of Pw3's belonging shortly after the same had been stolen as the one who was handed over to Pw2 by those who had apprehended him. It concluded that the prosecution had proved its case beyond all reasonable doubts. Consequently a conviction for armed robbery was entered and the statutory sentence of thirty (30) years followed. The appeal raises one major ground, in my view, that the offence was not proved beyond reasonable doubt for the reason that; i. · The hand bag was admitted in evidence against the procedure (grounds2) ii. The evidence of visual identification was not watertight (grounds 3) iii. The evidence of Pw2 was based on hearsay ( ground 4) iv. There was contradiction as to the time of the alleged robbery. v. That those who arrested him were not called to testify. vi. That the order of conviction is not part of the judgment. At the hearing of the appeal the appellant appeared in person, whereas Ms Joshi, learned State Attorney stood for the respondent Republic. The appellant submitted that his conviction was not based on firm grounds because he was not found in possession of the stolen interns and that the victim of the alleged robbery did not describe the perpetrator of the offence. He also raised the point that his objection to admissibility of the cautioned statements was overruled by the court without hearing his submissions and this applied to another exhibit. 4 -····~~~-- ·--· •-••------•-• • • ••" ~•• ••·••••.•n•--•••-~- ... - On her part the learned State· Attorney supported the appeal agreeing with the appellant's grounds that Pw3 did not give a description of the culpr~t. She also stated that the evidence of visual identification was inadequate because the circumstance were unfavorable for a positive identification. She also agreed with the appellant on the cautioned statement being admitted against the procedure. As for the stolen items, Ms Joshi submitted that although the appellant was found in possession of the same, they bore no special marks and the rule as to chain of custody was violated. Finally the learned State Attorney challenged the procedure adopted at the trial whereby the Public Prosecutor, not a witness, tendered a statement of a witness under section 348 of the Evidence Act. Those are the arguments in support of this appeal both by the appellant and by the respondent Republic. Since the first appeal is in a form of a re- hearing, I shall re - evaluate the evidence so as to either confirm the findings of the trial court on some material points or make my own findings. My starting point is to address the question when and where was the appellant arrested. The prosecution is suggesting that he was apprehended and arrested shortly after the robbery on being pursued by the people who decided to help. For the defence it is contended that the appellant was arrested on a date oth~r than that - of the . robbery ,and _it was . at Coco Beach. In my view, if it is concluded that the appellant is the person who was apprehended by the motorcyclists and handed over to the police 5 carrying . Pw3's handbag, then that is proof that he is the· one who perpetrated the robbery. However, where is the link between the alleged arrest by the motorcyclists before Pw3 came into the scene, and the handing over of the appellant to Pw2? Iri this case the said motorcyclists who were supposed to provide the link did not testify. The law is settled that the prosecution has the duty to call all material witnesses. This is the position in the case of Azizi Abdallah V. Republic [1991] TLR 91 foHowed in many subsequent decisions. In one such case the case of Mashimba Dotto@ Lukubanja V. Republi, Criminal Appeal No. 317 of 2013 CAT at Mwanza ( unreported) the Court of Appeal held; "The general and well known rule is that the prosecution is under a prima facie duty to call those witnesses who, from their connection with the transaction in question, are able to testify to material facts. If such witnesses are within reach but are not called without sufficient reason being shown, the court may draw. inference adverse to the prosecution." In this case there is no explanation why the motorcyclists who effected the appellant's arrest were not called to the witness box. For that reason there is no basis for holding that the appellant is the one who was apprehended by those motorcyclists. For that ground alone, the prosecution's duty to prove the case beyond reasonable doubts miserably failed. 6 --. . - - - - - - ~ - - - - - - - - - , - - · ------·-·--- .- -~---,- . . . ·-· This appeal is therefore allowed. The conviction is quashed and the sentence is set aside. The appellant should be set free unless held further for some other cause. 7 -· ~ - - - - ~ - - - , - - - - , - - 0 - - - - - - , - . - , - ; - c - , - - - - - - - - - --- ------ - - - - - - - - - - - - - - .v,-.... -·~ .. ··--- •··· - -··-,·----·- .--------·· . --·· ·- .. -- -- - --- ----- - • -· - ·_j;.··:.