20190724 TZHC Mwanza

IN ·THE HIGH COURT OF TANZANIA I IN THE DISTRICT REGISTRY . , AT MWANZA I I . . HIGH COURT CRIMINAL APPEAL NO. 232 OF 2018 (Original Criminal Case No. 07 of 2016 of th~ District Court of Serengeti District at · MugumLl) · . l - . JOSEPH ISSA @ MATIKO MAINA...I,......................... .. APPELLANT . VERSUS THE REPUBLIC ....... , ................... .l.. .................. RESPONDENT • I 15 & 24/07/2019 RUMANYIKA, l.: Joseph Issa Matiko (the appellant) appeals against the 26/10/2016 conviction and a custodial sentence of thirty (30) years fOIJowing the 17/12/2015 offence and charges of armed robbery contract to section 187A of the Penal Code Cap 16' R. E. 2002. As ;herein· above, in the district court . of Serengeti at Mugumu (the trial co~rt). That the appellant did on ' . 17/12/20'15 at 21.00 hours in Mugumu township steal cash Shs. · 3,907,000/ . and a mobile phone mak~ NOKIA· of Shs. 150,000/= the property of Veronica Steven @ Mpate and immediately before and after at a knife point in order to obtain/retain the said property. l . . The 12/9/2018 seven (7) · grounds .esse~tially revolve around three points:- 1 ' (i) that the trial resident magistrate. erred in law and in fact in not holding that the appellant was not properly identified. Extent of the . . I . lig~t and intensity having not been established. (ii) that the trial resident magistrate erred in law and in fact from the evidence not expunging the repudiated cautioned statement, on I 1 which the mandatory inquiries ha d not been made before. Leave alone improper recording. (iii) that the trial resident magist ate improperly evaluated the evidence. 11 l Ms. L. Meli Jearned state -attorney appeared for the respondent Republic and in a nutshell submitted that ~ctually the prosecution case was beyond r~asonable doubts proved for the' following. reasons:- one; by aid of electric lamps, the eye PWl and PW2 who knew him before properly . I • identified the appellant at the material 21.00 hours (in the sitting room i invaded and robbed). One having had such a sufficient time observing the culprits in the sitt1ng room and more so with respect to PW1 who led them I to the bed room for the money demanded. (Cases of Waziri Amani V.R. (1980) TLR 250 and Sabas Bazir Ma·randu V.R, Criminal" Appea·1 No. 61 of 2013. That the two witnesses named the appellant at the earliest I • I opportunity possible ( evidence of PW2 and PW4) and the former confessed I • ·(copy of the appellant's cautioned statement - Exhibit "P6''). But on reflection, that the exhibit be expung~d from the records. The appellant I having repudiated it but the trial court carr,ied out no mandatory inquiries. ' Additional to his n,emorandum of appeal, the. appellant submitted:- (1) that had the two witnesses pro.perly identified him he should have 2 . j . earlier on been apprehended and charged (2) that the electric ligh~s might 1 / r_,,, have been bright but for the non disclosurel of the source ahd intensity. . I . . Brief as.it is,. the evidence . on record·reads i thus:- . PW1 Veronica Steven . @ Mpate cl business · woman of Mugumu Serengeti stated that as she was, toget~er with PW2 ( daughter) at the material 21.00_ hours in a sitting room watching a televis.ion, almost- every corner illuminated by electric lamps, th~ appellant and another ·(not in I · these proceedings) just stormed in _and roipbed them at a knife point. That : · some neighbors arrived responding to ala~ms and accordingly reported the case to police. That on 21/06/2016 (say 6 months later), the appellant . came back and was. intercepted and arr~Jted climbing over the wall fence and, on the sportPW.1 recognized him. Then he was accordingly rearrested by police and arraigned in court. PW2 Mariam Siajali, the PWl 's house maid stated that as she was, at · I the material time together with PW1 ~atching a television, they were . . invaded by the appellant and another wiom they identified properly. But he went_ at large unti'I as late as 21/06/f016 wh~n he (appellant) came back, but the plot was futile. As he was intercepted,· arrested and accordingly arraigned in ,court. (PW2 a~d PW1 testified essentially the same). _ \ PW3 -Ryoba Mwita, a guard of the ~ommercial ·premises (the scene) stated t_hat as he was at the material time at wo~k, they were invaded by . . I culprits. That subsequently, they found ,a knife and a stair case around abandoned. 3 . ' , . I _PW4 l<itila Hussein Mkuti, a waiter of the neighbor Mnyapaa Hotel ' ' . ·{ ,l stated that the appellant, a ·resident of Matere area had been his work _mate between June - November,. 2015, Th~t following the matedal incident. and, together with .others now at the scene. where they found the stair case and-knife, PWl named appellant the culprit. PWS Kichanga Mawe the local ten cell leader stated that he knew the appellant before also as a resident in the loca.lity. That he also witnessed and signed a_ search warrant which led to discovery only of a Vodacom chip (No. forgotten) in the appellant's possession. 4 PW6. E. 7114 D/CpL Rashid of CID of Mugumu. stated that foHowing the incident, he took up the matter :an 18/12/2015 (case file No. MUG/IR/4065/2015). That the PW1 's cell. phone also stolen in the incident, . . its subscriber used No. 0763345398. That they followed it up and arrested the appeUant on 4/1/2016 and accordingly retoded his cautioned statement. Then searched in the appellant's home on 08/01/2016 in the presence of the local 10/1O (PWS). Wherein they recovered the appellant's chip with No. 0743608412. That the (appellant) was arrested on 22/6/2016 between 11.1_5 and noon and confessed. 1 In his defence, the appeHant :js on r,ecord only to have denied the . . charges. That initially he was, for no reasons at all arrested by police and charged for attempt to steal and_ was arraigned in the primary court. that indeed he worked at Mny~paa Hotel between August - November, _2015 latest. That is all. It appears now beyond reasonable doubts convinced, the learned resident magistrate held that the appellant was properly identified by PW1 4 I j. and PW2. Leave alone his cautioned stat~ment (whose exhibit's number . .· ( ·' does not feature in the impugned judgment. In· other words the trial court found· the two eye witness credible· arid teliabie .. Mainly tbe prosecution case h.inges on two main pieces .of evidehce; i.e. visual identification at night by PWl and PW2 and the appellant's bautioned statement. . I To _start with,· the issue is whethrr the appellant was properly identified. I don't thfnk he was. Because not only, without explanation it I took them say six (6) months .now at the scene to arrest him, if at all one . . . had once again come back to steal, but a1lso the 2 eye witnesses did not name the person if they knew him before! at the earliest. If at all he .was . I properly identified. The principle of law is iong established that ability of a ( witness to nam~ the culprit at the earliest opportunity I possible implied that not only the witness was credible, but als9 really he identified the culprit. PW7 and fellows may· have been looking for him say for half a 'year plus yes! But no copy of the said case file No. MUG/IR/4065/2015 was produced in court· with a view to establi~hing that none, other than the I app.ellant had that long been a suspect. fccording to PW1 and PW2 and police wanted. · · Secondly the appellant's purported cautioned statement ( only . . according to proceedings - Exhibit "P3'') was improperly admitted. The appellant having retracted and at the same time repudiated it (page 29 of I the proceedings). But without mounting the. mandatory inquiries the trial court just threw the objection over board and admitted it. Like saying that 1 the objection was not worth the name! It !is on this ground that correctly so in· my view, the learned state attorney urged me to expunge the exhibit. I . . 5 will agree with Ms. L. Meli, SA. Now .that the cautioned statement and r--' evidence of the two eye witnesses are gone, the search warrant,· and some· other evide·nce were good for nothi_ng. The conviction and sentence are. quashed ·and set aside respectively. The appeal is allowed· in· it's ·entirety. Unless ·he was held legally further·, the appellant be released immediately from the _prison. Ordered accordingly. Right ~_oo~al explained. /,{~ RT a}~, .. t~v , ff(~-~)'~\; '\'ff:~, i\7~~ l~,i) . ~ i_tw,1i t-ch t ,.,../J 2010112 19 - \t✓ \_, ~~;:· .. ~ll ~•h_. "'"' *. 1~i ~- -· :,,-; ".•· (fl !, . "t' -:-,.). 1;} &''' "',,~ ffl t\l, '-.\ __:.:;r -~~~- 6 Delivered under my hand and seal 1f the court in chambers. This t 24/07/2019 in the presence of both the SA cind the appellant by me. ~.,.j;,p B.M/LIEMA. - I.M. FOR DEPUTY REGISTRAR 24/07/201~ I' I' 7