20171101 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA (DODOMA DISTRI~T REGISTRY) AT DODOMA (APPELLATE JURISDICTION) (DC) CRIMINAL APPEAL NO. 64 OF 2017 (Original Criminal Case No. 130 of 2016 of the District Court of lramba at Kiomboi} .. ~ ~· ~· ~ ~ -KlllUW-A-SI-N·BI-·@~JtJMA.~. ~ .-:--. :-: .-:--. :-: .-:--. :-: .-:-. ~ .~ :-: .-:-. :: .~.::.~.:-APPELLANT VERSUS THE REPUBLIC. ■■ I ■■■■■ •••••• ■ •••• ■■ ••••• ■■■■■■ I ■■• ■■• ■ ••• ■ •• ■■ •• ■• ■■• ■ RESPONDENT 20/9 & 01/11/2017 KWARIKO, J. The appellant herein was formerly arraigned before the District Court of Iramba with two counts of Unnatural Offence contrary to section 154 ( 1) and Armed Robbery contrary to section 287 A both of the Penal Code CAP. 16 R.E. 2009 (sic). It was alleged by the prosecution that on 22/9/2016 at about 20:00 hours at New Mwanduigembe Village within Iramba District in Singida Region the appellant did unlawfully have carnal knowledge of one JOHN MOSES against the order of nature and stole from him Tshs. 2,700,000/= and threatened him with a knife in order to obtain and retain the said property. 1 When the appellant denied the charge the prosecution fielded in a total of five witnesses to prove the same. The evidence by the prosecution can be recapitulated as hereunder. PW1, JOHN MOSES the complainant herein accounted that at 20.oohours on 22/9/2016 he was coming from his friend's home when he was waylaid by two people who demanded to be given money. He told them he had no money but they searched him and found Tshs. 2,700,000/= which they took away which money he had as he was doing cattle business. The two assailants tied him up and sodomised him in turns. He was threatened with knife and covered his mouth so that he could not raise alarms. That, in the process he managed to identify one of the thugs to be the appellant herein who was his friend as there was also moonlight. Also during the commission of the crimes the assailants were talking and the appellant told him that since he had identified him he would kill him. However, as he was lying down and when the assailants bent down he managed to free himself and ran away naked to his friend's home where he was given clothes. The complainant's friend was non-other than PW2, KINDA LAMBALAMBA who said that when PW1 got there he informed a ten cell leader MOHAMED MLEWA, PW3 of the incident. Together with PW1 they went to the scene where they found signs of struggle and although PW1 had mentioned the appellant as one of the assailants they followed footprints from therein to his home. The prosecution evidence went on to reveal that the appellant was found at his home and had put on the shoes whose prints the witnesses 2 had followed from the scene. He was apprehended and taken to police station along with PW1 who was given PF3 to go to hospital where he was attended by Dr. MSAFIRI 0. KALOMO and PF3 filled which was tendered in court by Dr. IBRAHIM KALUNGA IBRAHIM, PWS. Meanwhile, the appellant was interrogated by No. G8057 DC ODDO, PW4 but he denied the allegations. In his defence the appellant denied the charge and discredited the prosecution case as PWl did not tender evidence that he was doing livestock business and that PW2 and PW3 were complainant's friends who gave only hearsay evidence. He was not found with anything that -~o~n~~te9. _!li!ll_~t~ !~~ ~l~~~e~_ ~f!~~c~~- a~~ ~o_ a_ny_ <:X~i~Jt_ ~a? !_e~~_ere~___ - ~ __ against him. And the Doctor who actually attended the compensation to did not testify. At the end of the trial the appellant was convicted on both counts and sentenced to thirty (30) years imprisonment in each count which terms were ordered to run concurrently. The appellant was also ordered to compensate the stolen cash money Tshs. 2,700,000/= and to compensate the victim at the tune of Tshs. 500,000/=. Upon being aggrieved by the trial court's decision the appellant filed this appeal upon nine grounds of appeal which can conveniently be condensed to five important points of complaints as follows; 1. That, the evidence of identification against the appellant was not watertight. 3 2. That, PW1 and PW2 who had interest to save their evidence ought to be corroborated by independent evidence. 3. That, the PFJ was received contrary to section 62 (1) of the Evidence Act [CAP 6 R.£ 2002] and the same was not analysed as to what kind of object used to injure PW1. 4. That, the prosecution case was not proved beyond reasonable doubt against the appellant. 5. That, the appellant's defence evidence was not considered by the trial court. When this appeal was called for hearing at first the appellant only adopted his grounds of appeal leaving to the respondent Republic to respond. Whereas Ms. Magoma learned State Attorney who appeared to argue the appeal on behalf of the respondent Republic opposed this appeal. In respect of the first ground of appeal Ms. Magoma contended that the appellant was properly identified at the scene through moonlight and more so since the two knew each other before and were friends. The incident took long time and the appellant spoke during the commission of the crime and mentioned himself before PWl. Ms. Magoma went on to submit that PW1 mentioned the appellant to PW2 and others but did not raise alarms for fear that the assailants could 4 ran away. That, the following of footprints which led to appellant's home was just additional identification evidence and appellant's shoes tallied the prints. It was argued for the respondent that failure to tender the alleged shoes as exhibit was not fatal since other evidence was sufficient to prove the case. As regards to the second ground of appeal Ms. Magoma contended that PWl & PW2's evidence was corroborated by PW3, PW4 and -PWS. Arguing the third ground of appeal regarding the PF3 Ms. Magoma was of the view that the complaint against PWS that he was not the author - -ofc--the-sa-me--i-s-ai:i--afterthought as the_ s_Qrn_~_was not raised at ------------~-, ~ ··-- -- the trial. ·--·-·----------- And, the law does not forbid exhibit to be tendered by non-author having same expertise. That, section 240 (3) of the Criminal Procedure Act had been complied with where the PF3 proved that PWl had been sodomised. For the foregoing Ms. Magoma contended that the prosecution case was proved beyond reasonable doubt in all counts as per exhibits Pl and that PWl was robbed money at knife point thus the fourth ground of appeal has no merit. Lastly, it was submitted for the respondent that the fifth ground of appeal is baseless as the appellant's defence was considered by the trial court which did not raise doubt on the prosecution case. 5 In his rejoinder submission the appellant maintained that PWl did not prove that he was livestock dealer and that this case was a frame -up as there was land dispute among their parents. Following the parties submissions this court is required to decide whether this appeal has merit. To decide this issue the grounds of appeal will be dealt with seriatim as follows: As regards to theJirsLgrouod_o_f_app_e_fil__t_bis _ court differs with the learned State Attorney for the following reasons; One, as the incident occurred at night PW1 ought to explain the -i-ntensity-0f-the alleged. moonlight_pertaining at th~_?cene e>~_~ri~e for-~!-~-- to be able to identify his assailants. He did not do that. He also did not describe the appellant's appearance and attire but also the other alleged assailant did not get any description. The law says that even in case of the evidence of recognition the court must warn itself about the prevailing conditions for proper identification. Thus, in our case even though PW1 said he identified the appellant as he knew him before and was a friend, the conditions thereat ought to be sufficient for proper identification. In the Court of Appeal of Tanzania case of JACOB V R, Criminal Appeal No. 92 of 2009 it was said thus; "... we wish to point out that the question of familiarity will only hold if the conditions prevailing at the scene of crime were conducive for correct identification. If the conditions are not conducive for 6 correct identification, as in this case then the question of familiarity does not arise at all. .. " Thus, like in our present case PW1 did not prove that the conditions for correct identification prevailed as it has been shown herein above. Two, It is also doubtful if PW1 really identified the appellant and mentioned him to the people he met after the incident, namely PW2 and ~~~PW-3~.I-f~P-W-1--i-eally~ider:iti.fied--tbe_ap.peUaot__and _named_ him__ to _th~_se wltiiesses· the'( should have directly gone· to his home and- there-was no - -- - need first to go the scene of crime and from there following footprints which they said ended at the appellant's home. Three, if PW2 and PW3 said the footprints they traced from the scene matched the appellant's shoes they said was found him wearing, there is no reason given why they did not tally the footprints and shoes and tender the same as exhibit in court. Not even the police through PW4 had any idea about this fact which was crucial to the case. This court is far from agreeing with Ms. Magoma that the proof about the shoes and footprints were just corroborative evidence. These matters were important facts in issue to the case. Four, the fact that the witnesses did not raise alarm after the complainant got at PW2's home raises doubt as to whether the incident happened as it was shown to be. Five, if the appellant was found at his home few moments after the alleged incident definitely he must have been found in possession of the 7 alleged stolen money Tshs. 2,700,000/= or part thereof. Instead, there is no evidence tendered to show that the appellant was searched at any time after arrest. The Police did not say why they did not search him if at all the complainant gave his statement to correspond his evidence in court. This raises doubt on whether PWl was robbed the alleged money. It also beats my imagination that the appellant would have directly gone home if at all PWl had identified him at the scene. Six, voice identification is_of the wea_lsest k~nd. I _9et s~pport_in the Court of Appeal case of JAMES CHILONJI V R, -Criminal Appeal No. 101_ of 2003, Mbeya, (unreported) where it was said thus; -~ •~voice.ideotifi_catio{J is- inherently ···- -- ~ unreliable - - -· because of the ease with which it can be disguised'~ Therefore, voice identification as alleged in this case cannot be taken with certainty to hold that the appellant was identified at the scene. For the foregoing this court hold with certainly that there was no sufficient evidence to prove that the appellant was identified at the scene of crime. The first ground of appeal succeeds. In the second ground of appeal this court finds that though PWl and PW2 were said to be friends but the appellant did not say how they had common interest to save in this case and thus this ground of appeal fails. The appellant complains in the third ground of appeal that the PF3 was admitted contrary to law. This court agrees with him that the Doctor who authored the PF3 ought to have testified so that he could be cross- 8 examined in respect of the contents of his findings. This is so because it is reported in the PF3 that he examined PW1 after three days of the incident and could not take any specimen for examination as he had already washed. Hence, what he opined in the PF3 was subject to his own interpretation. The law says under section 240 (3) of the Criminal Procedure Act [CAP 20 R.E. 2002] thus, When a report referred to in this section is received in evidence the court may if it thinks fit, and shall, if so requested by the accused or his advocate, summon and examine or make available for cross-examination the person who made the report; and the court shall inform the accused of his right to require the person who made the report to be summoned in accordance with the provisions of this subsection. ( emphasis underline mine). Therefore, apart from the need that the author of the PF3 Dr. MSAFIRI to have been made available to explain his opinion but the law as shown above requires that he should have been the one to testify and be ready for cross-examination. Therefore, the PF3 was illegally acted upon as its contents were not proved by the officer who authored it. Thus, it remains PW1 's empty allegations that he was sodomised as there is no medical proof thereof; And if at all that was the case how did he stay for three days from 22/9/2016 the date of incident to 24/9/2016 when he went to hospital? This trend adds to the already pointed out doubts in respect of this incident. The third ground of appeal thus has merit. 9 • In the fourth ground of appeal, owing to what has already been discussed herein above it is not difficult to see that the prosecution case was not free from doubts. And in law if the prosecution case has doubts the same need to be resolved in favour of the accused. Therefore, the doubts in this case are hereby resolved in favour of the appellant. The fourth ground of appeal also succeeds. Lastly, the appellant's complaint in respect of the fifth ground of appeal is that the appellant's defence evidence was not considered by the trial court. This court agrees with Ms. Magoma learned State Attorney that the trial court considered the appellant's defence but found that it did not raise doubt on the prosecution case. This ground of appeal fails. Be as it may, this court finds that the prosecution case at the trial was not proved beyond reasonable doubt against the appellant and thus the appeal has merit and it is allowed, conviction quashed and sentence and order of compensation to the complainant set aside. It is therefore ordered that the appellant be released from prison unless his continued incarceration is in relation to other lawful cause. It is ordered accordingly. c_.,-- ~ I . M~~O JUDGE 30/10/2017 10