20190628 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA AT MWANZA CONSOLIDATED CRIMiNAL APPEALS NOa 351 OF 2017, 159, 160, 161 & OF 2018 [Appeal from the Judgment of the District Court of Musoma in Criminal Case No. 5/2016✓ Hon. R.B Maganga, Senior District Magistrate] charged at Musoma District Court for two counts of armed robbery and Found in possession . of .property suspected to have been . stolen contrary to section 287A and 312 (1) (a) of the Penal Code Ca_p 16 of the Revised Edition, 2002 as amended by Act No. 3 of 2011 respectively. The story on how the appellants· were arrested and connected to this case is simple 1 and straight forward. The prosecution's· case shows aiound 02hrs C: 1 midnight on 16th December 2015, Chausiku Nyamhanga and her husband . . one Andrea John were invaded . by a number of six bandits who armed . . · with bush knives and iron bars, having broken their house front _door. Andrea John was tied with ropes and ordered not to make any noisy. They . . then turned to Chausiku who was still in her bed and-~anded money. . . . : ~ ~~ ·/)_ They then searched her hand bag and took the su\\~~e/,= and from Andrea trouser they grabbed TShs 40,~>:_ AG:~ing tb Chausiku, ~~~\\ _· ~" ~"'-~ the bandits also stole three mobile 13hones-.ma1<e-T,ecno and Itel, Samsung . TV screen, Zee DVD player;;1fLone flasR befor~hausiku raised an alarm _· for help and bandits e _ s c a r [ G ~ . )_ ./. ~~ . . "'wh_at.:..I5a"(21:)eRed and mentioned the 1st appellant to be she told__th_:R1-~ (?" ~~ "5' -- i . '. 4''-/ . t~aits·. She contended that. the 1st appellant was familiar to am<Jh!:g· ~. \1 V .. heras~da driver" who she-used to hire his motorc~cle and that being assisted by lights from the tube_lights, it was easy for her to identify the 1st appellant. The incidence was reported to Police who in the next morning managed to arrest the appellants with items which Chausiku identified to be the ones stolen from her house. An identification parades were also conducted and Chausiku identified the 1st appellant repeatedly. 2 It· was aiso stated that when interrogated, the. appellant's confessed to have stolen the items. With that- background, the appellants were charged as abov~ and upon· co_nclusion of the trial, the court found the appellants guilty and convicted . . . . ~ them. They were therefore, sentenced to serve 30 years-..in,prison plus 24 (3~i~~~ for strokes in respect of the first count and thi-ee . . \\2 ~'V' the second count. The appellants were als~~erec:f to~ensate one· . ~-~~- both conviction and~~ten~~nience however, it was ordered ~~~ that ~he apge~.'.ls-t,e\.'--cuon1sC>U~ated. _ In this Judgment therefore Samwel . ~~ )..L 2/. . Mag/'r..@ S1tlor'il, N1y~, Mw1 kwabe, Joseph Nyantondo @ Mw1ta and . . M u g e ~~~ara, ~ will be referred as the 1st, 2nd, 3rd and 4th . \\ _l~J ~. .. appella~ively. Save for the 4th appellant whose petition had four. ( 4) grounds of appeal, each of the 1st, 2nd and the 3rd appellants presented six (6) grounds of appeals., Common to all petition was a complaint that the prosecution's case was not proved beyond reasonable doubts. 3 . Vv'hen the appeal came before me for hearing, the appellants appeared in . . person and unrepresented. The respondent/Republic enjoyed the service of Ms. Mwanahawa . Changale, the learned State Attorney. who hastened to support conviction and sentence imposed against the.appellants by the trial court. On being given an opportunity to submit in respect of their appea!s, all the appellants adopted the contents _of their :pe~itions. While ' the 2nd , 3rd and 4th appell~nts had nothing substantial-to add from" .the . '•· grounds submitted, the· 1st appellant submitted '" that ·ciespit:e··c:hau·siku's ·. /......_____ ··. ' \ -,~ '-.":.,~::·, '-.._ •, ' ..... _ -..... , .. ;,.__, '··.\. "\, ;, ' ' ·.·· (PWl) claims that she identified the cufprits <)ntbe- material night, she ·(<< ', ,,· ···-·<• . never disclosed the names of // those ,,_ ,, identifiecL ·, He ' .. ,_ contended that PWl did __ ... '\,, '~ ...., ~,- I ; •,,,,,, .\,__ " /-.. . _', . not ~ake her statement~ ~n 16~~>9:e~erl),b~r ·2015. She waited till 18th //'· \ \ . '· •, ...') "··:· ·,, ' December 2015 to<gi'{~-her<~at~m->nts after the appellants had already ,;, -':,, ,, •• s ~-~. ,/ ·, .. , . been arrested'\in:-cbnne'ctibh, to this case. On the items found in his . <,,-_ ,. ', . "-<~-._/ > . . . --,.., •., /" - / . posses§ion,_ ifV1las/argU:~tk:tt1:at the same belonged to him and unlike PWl ;:·, --., ~:::--~---<_ . . ·-·- . and(fW2 who\n\eyet\~:upp~rted their ownership claims with any evidence, \<->\, \ · ,\ . . he tehq~t~d re,~~ipts (exhibit D1) to prove his ownership.· • ~••,..._ ' ..... ,... • •-M__.,.: , • On the other hand, Ms Changale submitted that the 1st appellant was convicted on the basis of visual identification which she contended that the same was well substantiated by PWl. The learned State Attorney was of.the view that there was no mistakes on the 1st appellant's identification 4 ., . on the following . reasons. One; is that during t,1e robbery, the pt appei°lant . ( wanted to rape PWl and so he was close to her at a distance of one pace. Second; is tha~ the incident took almost 30 minutes, so Pvy1 had sufficient time to observe the bandits. Three; the pt appellant was not a stranger to PWl because -being be a bodaboda driver, the later used to hire his . . "\~ · motorcycle frequently. Four; the room where the incid~took place was _· covered by bright and so ~ufficient iights fro_m ~i:ity~--be_, lig~ As . - - \\ ~~~v such· Ms Chang ale believed, the fact that ~1\.menti6"edtne names of the 1st appellant immediately after 1:1~~\\ssurance of her identification claims. . ~~ With regard to tht%westi0~ or not common intention was . -~ ):) ~,>/ . established(M.~g~~d in line with the decision in Nathaniel . Alphol!Jce~--a __!~pund~epublic (2006) TLR 395 that common ft.~~~~ . intent~-n nee jo-t have pre meeting of minds and that even presence at \\ -~ V . . . . the scene could,:suffice to prove the same. The learned State Attorney's -~j/ views were that since th~ 3rd appellant confession implicated the rest of the appellants in this case then common intention was proved. As to whether or not the cautioned statement of the said 3rd appellant was recorded within time and in accordance with the law, Ms Changale 5 . . argued that not every irregularity would iender a cautiof)ed -statement · illegal and so subject of being disregarded. She referred the case of . . Chacha Jeremiah Murimi and three others Vs Republic. Criminal . . Appeal No. 551 of 2015 to support her stance. Ms Changale went on to argue that the items stole&the scene and . . . . ~ ~~ "/./) recovered from the appellants were tendered in~~GGOOl:lLJrft--and aarr,ritted as exhibits without objection. She contende~~ \ a£eriants had no M·-~v explanation on how they came int0'<_1l~~lile ~id properties. It . . ~-~ ~ " ~$> was therefore clear to Ms Ch~AQ'i!le that~u~ the appellant to justify possession of the recov(!c:;t~~>'the charges were proved against them as it~'>-_O~~ed by)e Court of Appeal of Tanzania in ~~~ Mustapha M ~ i Rashi<li; Republic, Criminal Appeal No. 241 of . ( . )- 'f.":)> . 2014. . .... ·,, \\ "tV. · _ ~ .f .r .A · In h e r ~ n Ms Changale contended thc;1t evidence tendered· _regarding identification, being found wi_th stolen properties, common intention and the cautioned statements, proved the charges beyond reasonable doubts and so the appellants were correctly convicted. 6 ''' I have thoroughly scrutinized the.entire record of appeal. As shown above the appellants' grounds of complaints have been shortened to basically ' . _ one issue that's whether the charge against ~hem was proved to the required standards·. To respond to this question, I had to revisit the entire record and reevaluate the tendered evidence which ipso jure, I believe is a duty of this court as a first appellate forum. I have a ~~ of decisions in mind including the case of Armand Gu-,eh~eP_-~_Miial . I\\-~"-"~V Appeal No.. 242.of 2010 CAT (Unreported) ~reby thefc~'stated: 4~~ Before we embar,~,.u~d!scuss1n~he above referred A uOCt.rtne •I- • h owever;. _\we / on~e"!!!,__a1,:J,w1s. "'~ »h t.O I- rea,-I+: !lrm our stand tha~e '8re dk'i-::iJu5) t/be guided, where circumstanc&~)'s~ by the principle that this being:~_,ap'Je~re_ court it has a duty to reconsider <-( \J :>. v_;· . ~nd'e~~t~-t~e evittence on record and come to its own . c··.C~Rclu~,z;:tearing in_ mind that it never sa~- the • , witni5sef as,they testified See the cases of Audiface . , ! ( ~ Adili Elipenda & others, Civil Appeal No. 107 o :2012, CAT, Tabora Registry and Maramo Slaa Hof'u . . & others v. Republic, Criminal Appeal No. 246 of2011, CAT, Arusha Regis.try {both unreported). 7 .Guided by above authority, I will novv proceed .to evaluate and consider . . (,,_, the entire evidence from both sides as adduced in the trral court. As correctly submitted . counsel Changale, the appellants were . convicted basing of evidence of visual· identification by PWl, confessions by 3 rd appellant and being found with properties suspected to have been stolen. I wiU start with the question of identification. Admitt~;.,_PWl was the only witness who claimed to have identified the~its~~~rial mg , · at no.tw·th · ht.. Th 1 stan d.mg, desp1·t. ~ \\2f;::;b_ · a~uer e seeing . o six. and·ts 1 , her · t e. st"1mornes h h d t .d~t·l;.'",.th' ~ \ ''11 t · ~-:i~a-~pe an on Iy. s ows, s e manage . ,~ - ~ ' er,:i~·-'!~~-,-,e_ 0"'1 '. . An established princi:le ?f law~atqviclence ·of identification or r-ecognition, must ~ " \ , ~ ) e f o r e being relied by any Court. As n~ted, the"'~pellant,di_d'9-9t admit to have_ been at the scene whi<;h mean5,tbe~~~1~ntification or recognition claims by PWl m u~ct~d~redibility f test essentially in order to eliminate the possibiliJ;v. of mJJken identity, Such duty imposed to courts of law, has· ~/ . been reemphasized by a numper of the Court of Appeal of Tanzania decisions. I have in mind the case of Shamir John Vs Republic, Criminal Appeal No. 166 of 2004 where the following were stated. 8 . . ·: ................ whenever . the case. against an accused depends v1holly or substantially on the correctness of one _or more identifications of the ac~used tNhich the defense alleges. to be mi~taken/ the Courts should warn themselves of the special need for c:aution before convicting the accused in reliance on the correctness of the identification or identifications'~ <_,." . ',.., .'\....,...,_ '--: ' V\lhat should be taken into· consideration when ~:x\,a~i~ng 'th~ -c:;~r~~,cr:~ess - \:'-...,_ '-. ' ,,, . of identification is not a new domain. From,.what de~'fded.,in'Waziri \.Jas . . . .. \\~// ~,. "'~ Amani Vs Republic [1980] T.L.R ~SQ:~nd the,!1{oll~w~d by a number /. ,,.__ / ", ·,, -,.-............ '·, ' \ \ '," "'-._~ '» "· V" of the Court of Appeal of Tanzania~s deGisions, -it-1s now settled that; ",' " V . ',.,,., ,,, '-.,.·~· ""' ~- "'· ,... ,...._,,, ·.._ .\. ' . . \,. conditions favouring idenfification ahd''-freditiility of an iden~ifying ( ! / / ' , , ·,,< ;> witnesses are two most \iportarif;__fact&i that should be taken into </ /, ~ <.."\ ·, .... \., "<•.,, . . ·,,, ' " · .', "'-.,.~ /' ,.,.,,.,..-. /,.. /I . ~, assessing.-..:whether consideration wben ' ' . or not there was correct . . /2,,,.--, ',\ •. I '-s. \ '<." ' " '---: ' /' . identificatior.i.<whern Ht comef lo conditions favouring identification or - . "'""-/_:_;{._:.~: ~ -"7<,/. recogt)ition,:{acjor,f ltke; distance between the identifying witness and the sus~e~, time\)h~~hich the accused wa~ u~der observation of the . ~~ )) . . . witness, 1f.tlj~Jdentificati6n was done during the night or in a dark place then the source and the intensity of the lights, whether the identifying witness and the suspects ·are well known to each other or strangers and existence of any obstruction which might interrupt concentration of the identifying witness are crucial. (See Mathew Stephen @ Lawrence Vs 9 · Repubii~, Criminal Appeal No. 16 _of 2007, Mereji ~ogori Vs Republic, Criminaf Appeal No. 273 of 2011, Gafious Faurine Stanslaus Vs Republic, Criminal Appeal No. 2 of 2009, Ray~ond Francis Vs · Republic, (1994) T.L.R 100 and Karim Ramadhan & 2 Others Vs Republic, Criminal Appeal No. 113 of 2009] .. w .. question whether or not she correctly identified the 1st appellant. . For easy of reference on what, I will be saying shortly, I find it prudent to reproduce the contents of PWl testimony on how she encountered and identified the ist appellant who was the 4th accused at the trial, as hereunder: lO .. .. Then they vvanted to rape ,77e at that time, but I refused and . . ·· told them I had major operation and have not linished even. three_ . months and one of them insisted for him. to rape me in the · presenc;e ofothers but I refused and he ordered m.e to show him my scar and then I sh.owed him the scar of my operation but he . was told by his colleagues to leave...... Thereafter three men entered into the sitting room, where they robl;Jt;d our three mobile phonesr that is 2 tecno and one Itel.together-with our: . . . . . < .·'·,. . _. . . . // ·, Zee DV~ TV screen sumsung and one nash\.tqentook th_eniall \ ·, ·.. . . and went outside. Then I raised an afa(IJ{ an~lbf/ band.its ran '( "· \ away and disappeared. The alarm/i7Jen.faln¢,(o 'the scene, they ,/ \ "', , . ·'<~:· ~-. ·~. , :._~~·- - -. .,. : ~--, '>,,. \\ ' . fo_und us there. They saw tfJe'S(l1ash1d,door.-ao/:lI told them to ', -\ '',_ ·,,\ .,,_. have seen the bandits· and identified chem through electricity / / _: ; - \,_\_ "·,. ·'<-,......,. _> tube light of which wtp're on duJing the/scene of crime. I saw one 1.' • ' /. ' ·,, / ' ,: ' of them was a.··',lbodaqoda ·. ' . . driver-)Jf j 'the motorcycle to be one Samwel MagaJwira'$ he·b;~d:evefl -~ ·- . to carry me on his motorcycle, "\.,.' ... - ·-.,, '. this is tf11/on.(#f ;:· saw.pP,/fle ,.,,_: ,/ .. material night to be. among the \ ·.· ' bandits'·t11ho iaJaded, cl$· (pointed him out in the dock) these /~~•-...,.,""•. . . ·•·•...,·''.,/ ... - ._· - - . ··:--;-, /bandits,famtA(_e(. was armed with the Pangar knives, beleshi \\\·('kola ·\ J and. it;orr·hars . .... We had no. grudge with the said man \, \ .\ ; Sainwel '',,, at/all. ________ .... ~'•·. .,.,,../.· ,- Does the above piece of testimony meet the safe lines for proper identification? The learned trial Magistrate was convinced with such evidence and in his reasoned Judgment, the following were recorded: l1 . . On the other hand there is direct evidence of PWJ Chausiku d/o . . Nyamhanga to the effect that they were.invaded by six persons · and the efh accused pe_rson Samwel s/o Magaiwa @ Sib9ra was ·not only present at the scene on the.material night hours during . the sequence of events were going on/ .but he participated in stealing their properties exhibit P6 collectivelyfound in possession of the yd accused Joseph Nyantondcr..@ Mwita/ as . per the cert_ificate of seizure exhibit ~7. Also the ¥!;::accuse~, ~,. . . . (~ .,,. /4/. Samwel wanted to rape her. This witness PW1\--conten.d.s'-ihe. '4'1 . 6 \ )~'/ accused w~s well known to her c1s_:e w~~e~9:?~oda.;briver who sometimes used to carry her1n--th,e matorcycle 1n town. He . -was not so stranger. to her./:.(! har<e. . carefullv.considered this evidence and I am of the,,,view that~,... PWJ,knew the 4h accused ,~, ~,. - A~~~,\) . well although the incic£~;pp,en~~~ni;;;.hours, there cannot therefore be an JssuJ~bt mi-'81:eii';;dt&ity when PWl contends that the 4hai8J~r;1 ~j's"pt:esA/ at the scene in her home togethe~.her<". ve}l!Si~0n. ~ e d them that night [Underline <- { y) ty· . . . Emphasi$':supp'/i?fi:l · · .----::-,--.. ·.•v-., ,,rf' ,_. : .,.,I",:~ Wit ~ct .to the learned trial magistrate, PWl's identification testim~.1:?v/s a lot of questions to be desired. First PWl merely relied on claims of familiarity. She didn't give descriptions of the 1st appellant that night The need to have an identifying witness describe the identified person was observed by· the Court of Appeal of Tanzania in the case of 12 Karhn Ramadhan & 2 Others Vs Republic, Criminal Appeal No. 113 . . . . / \ r, of 2009 where the following was observed:. What is on record is general statement that the witnesses . . identified the appellants with an assistance of seventeen tube lights. Under such circumstances, without. description of the appellants either of their outlook or attire, the s?3'°>enteen tube . lights notwithstanding one cannot with certaihtysa0fi'at ther&> was . no mistaken in the identification df\~~pp~';;rrfs. [Underlined Emphasis supplied] ·.· ~~ '-./ · I n th. e Curren t ma tter, apa ~ . rt·. f tGm I·'"~b. C ai,mmg t .h. L ~ e manage d t. 0 .d t·fy I en I the appellants through the~ri«;e~ligl,ts from the electricity tube . light, PWl also did~-;~.~in~~t~ of the tube lights. and the extent of thf9~ illumir.ia-y!. In Issa S/0 Mgai,a @Shuka Vs --~~ Rep5 ~ i ~ ~ ~ ? / 2 0 0 5 (unreported) the court of Appeal of T.i~~in~th similar facts, observed that the question of f a m ~ ~ \ e appellants will orily hold water if the conditions prevailing at the scene of crime were conducive for identification. The court went on to state that: Even in recognition cases where such evidence may be more reliable than identification of a·strange~ clear evidence on sources l3 l. . . of light and its intenslt-y is of paramount importance. This is . . because/ ··as occasionally he!~ even when the witness is pu1poiting to recognize someone whom he know~ as was the case here/ mistakes in recognition of close- relatives and friends are. often made.· That sa·id, I am of the view that PW1 's evidence was.' basically on \. "\_,'. >\, , conditions favou~ing identification. However, as sho;"ri"--earl:l~r\hat alone . ,.,/' ·. \.''\. '•,,):· '""' ...,,,'".,.... \'\. cannot be an assurance of a correct iden~ifiq1ti9n \t9f4c~g·n;iion unless /" -.. ··-.: ·., \ \ __ ( \ corroborated by evidence on credJbility' ~rlhe-iclgntifyi~_g witnesses. With ~:-,. // . ', \_ regard to credibility of PWlrthetendered eVldence shows, immediately /. ', /: ' /-. '- ···./'· '. . after the bandits have l~(t the/sc~qe, ,'PWl disclosed to those who . //:> \ _,_ "< _/ '\, ·. . respondent her alarm that ,·, '',,. the·',. 1~-.. .aµi:>,ellant ---,-.-·<·/ ·~ ' / was among the bandits. Ability ,,,.....------ .. , ··... ----- -- . of. the ideny-ff,fng· ~:i}ness·<tp-.l)~me the suspect at an earliest _possible ·-,,- -,___ I _. / - momept-<111Q gi~e1he-det~rilea -description of the suspect first by the said //_-•. __ , -~---- ·-::..,__,_ ·---,- ..,_ /. ""<-:, "> ,". "c ideriti'fying ~1't:~~$~'<.~j1d then by the person to· whom the details were \'<,. \:' ._ .. reveai'¢.d,,-Ls an ltfi'portant assurance of her reliability. That was the position ' \,~ ·., ·. ?~~:::~-<,,,. :;, . . of the Court of Appeal of Tanzania in Marw:a Wangiti Mwita and Another vs. The Republic, Criminal Appeal No. 6 of 1995 (unreported) when 14 . The ability of the witness 'to nan,e a suspect at the earliest . . . possible. opportunityis an important assurance of his reliability; in the same way as unexplained cjelay or complete failure to do so should put a prudent court to enqviry · That notwithstanding, despite claiming to ·have revealed the details of the ·bandits including the 1st appellant to the pe~ple who re~nded her alarm, none of those people were· procured ·in court to~r-t~ers~ ·rn fact itis even doubtful if PWl told the police~de~\~~rst~pellant on the material night when they wen~p~~~~er at the Police . station . . because. accord .mg ,:w6~, "' /~. "'~·- -~-> .. one i~~Baraka Mwakasege who was an investigator of thi?::e/'h~.)o record PWl's additional // \\ -~ V statements on the tY:'\?Pfella~cation. As PW6 was assigned the file for invest1gafu)Q :S,~~ while the appellants were already in_ cu. sto~,~it~_m_\$_.Jfil~jll/]isclosing the details of the 1st appellant and 1 ~ ~:-~~ ~ ;-/~ PW65_ w_~din)~ @.17 additional statements the appellants were already \\ in a P0Hte lockUR- \ ,: ~ >' ~ The doubts above becomes even real when the Police had to prepare . . identifications parade just to be sure if PWl correctly identified the bandits. This was unusual as PWl claimed to have known the 1st appellant quite well before the incidence of this case. Conducting identification 1.5 . . parade where the witness alleged the identified witness was. not stranger ( to her, would be a wastage of time and will serve no usefui legal purpose.· In conclusion on this issue it is a trite law that, for evidence of recognition . to be reliable, evidence must not only be given by an identifying witnesses <"( . but the same must be corroborated with evidence frqm, a person or . . . / ' '' ' . . . /' . . . \· <~"-. ·· .... ·"· // .-·· . persons to whom_ such information were r~veaJe~~\ln,M;~a~~ Alhui Vs Rex (1942) 9 EACA 72, a decision ~~~s~bte(~ittiaPprova1 by . . <R. '>-- ------._~d-·c'· \ \. V R th e COU rt _o f Appea I Of T anzan1},I~' bl. ~r~~n.:_~~~~CIS S epu IC :<- ," '•\ ',, "'. ...... (1994) TLR 100, the defunct·Court,ofAppeal-for Eastern Africa held: I /"/,,,, - . . ... "·',,',,, ·,-..,,,,_,/' ' ' . . . /"-,., ""<> r•.· {\ ,(/· </ . In every case ;r{tlthi2h'-tf!~n/is_~ u/_ (/ue;tion ~s to the identity of ,. '"- ' '~/ the accuse4.the fact,oithere_hclving been a description given and the£r/ns-~ftha;lJiscription given are matters ofthe highest '"':-~ )( ?/ impotii!!/c-e:..::.ff'1h7¢!J~!·-fidence ought always to be given; first of fa(l~~e,, ~} the persons who g;we the description and \J)urport to \identify the accused, and· then bv the person or ~"- l/ whom the description was given. [Underlined persons._..to1 ......._::..~..:..:;....,- Emphasis supplied] . . · That being said, I am of the settled view that applying the principles laid down in Waziri Amani v Republic (supra) and the cases referred above to the prese_nt appeal, I do not think all possibilities of mistaken 1.6 identity were eliminated with respect to the 1st appellant. The doubts ought to been resotved in favour of the said appellant. I have. discussed at length the weaknesses in the 1st appellanfs claim of identification by PWL I will now turn to evidence regarding being found with properties suspected to have been stolen. The ava~le record shows . . .· .· -~ ~~- /:> it was not disputed th.at the appellants were foun'ct.,.i?--t ..lj the. all~gea;.stolen· \\2·-~v properties. I tend ·to believe that the same~Rerties w~-:were found w1·th th.e appe II an ts were th.e . ~ ones✓w ~- h- ~~~\fi\ by PWl . Gomg 1G1-1,were~es . through the entire p r o s e c y ~ \ ~ s nowhere any of the prosecution's witnesses, {ch incfud~~,'! and PW2 attempted to identify by specifi~~Same. In her testimony PWl for · in~n=~~~. . . On 2Efh"be.cemf.J..er 2015, I was informed bl/ Police to no to -~ \:\ v , / ~- Gef!;!al poj9f_ station Musoma where there .were re~overed stoler1l'-paJpJ2rties thereat I went there at 12:00 afternoon. On ~ my arrival I was shown those recovered stolen properties._ I saw the TV screen ofSamsung type which had a mark on it close to the glass in the front I also saw my black ZEC DVD mc;Jde and one mobile phone which.I saw them well and identified them to belong to me to be my properties robbed at my home on the material night 17 Once again PVV1 neither explained any peculiai feature of the recovered C.: properties nor tendered· any receipt to prove ownership. By merely stating . . . that a·1V had a mark without . explaining what the said mark was and .how · the same looked like,. her descdption was very insufficient. Ir, my understanding, where a witness claims certain properties found with a suspects belong to him or her, the stolen property ~st be positively identified to be that of the particular Witness. T~fy-~iis"i?that · the recovered properties belong_ ed to. P_~ ~ ~ n { ~ - : o n the . ~- '--~ \\ prosecution side. In Ally Bakari ~nd",~(_.Ba --~ir.i:ys\Republic [1992] . .- 6(~ ~-~ .· - ·• TLR 10 the Court of Appeal ot..:ranzan.ia"observed the following in relation to who assumes the . ' iof/proo~ bJraen ~~» pan recovery . of properties . . :~ ~ '., (/ The n~_esumntion~ot,-n.u//t can on/1/ arise where there is conent -r''~ : ( ' ----~ T ~• k_-~_~;ftha~t~_the,sto/en thing possessed by the accused is the one <l. :\ v .· that was s vlen during the commis~ion of the offence chargeft ., . f;) . an6/~b1;, it is the prosecution who assumes the bu_rden of Proof. When giving his defense testimonies the 1st appellant claimed the mobile phones he was found with were his properties and he tendered receipts to substantiate his case. The receipts were admitted as exhibit Dl. The 18 trial magistrate did not beiieve the i st appellant defense in· exhibit D1 on· r the reason that defense was raised late. With due respect, in absence of the prosecution evidence to prove ownership of the said mobile· phones, it was unfair to disvalue the defense testimonies. Indeed when addressed - by the court in terms of section 231 of the Criminal Procedure Act Cap 20 RE 2002, the 1st appellant informed the Court that he ~iU\~Jy on the said . ~·•,,, ' ·... _ ,./ -·--._ ,, .. .• , / ' receipts during his defense. ·,\ '<// · '· • ·<:: . -~---.. '' \." ' :~ \, ',\ . I have also considered the ProseCJJtion s,:cc;!Se ag~lnst_the 2 1 nd , 3 and 4th rd • \~~ . ~' .,_ '· -~<,\,,_ ··, - -· . ,, • appellants who were not ,)deqtified -~t th@·,.scene and during the / ' ' . /~ . /'' . ' / ·, ,, identification parades. As 1the triayc9Hrt f9und that they were present at . /:'· \. (i". ·, _•. '. . the scene, their conVic!'.iqns\v~r~ __acs9rdingly based on common intention ,,,....-:;·-c·-, \~ ·-..:. ·,., '•·... . •• . ·_:··· -· and the 3rd 9ppeHa{1'(s cail_ti<'.>q~c( statements. I hc;!ve already adumbrated <;,<, \', / ".·· . and coocludedih<:1t~R.\tyJ's~~v1dence was insufficient to establish presence . //' ,::· ">,'"<,., : \ .. ' . . of tbe appellai'.l:t's\ ~t'tMe scene. On the cautioned statements, PW6 who \~• ,3\ • \ ,, '.\ V • \~ . \~1 . . recora~:C:kthe statements did not say when the 3rd appellant was arrested ",~<1 '.>-.:~~·;,{;,'?( ,_ ,\,,,·_: so as to e_nable the trial court to access whether th~ same was recorded within the prescribed time of four hours. PWS evidence shows the appellants were arrested on 16th December 2016. The cautioned statements however shows the same were recorded on 28th December 2016 which is many days after the lapse of 4 hours the time prescribed 19 for interviewing a suspect. Despite the fact the appellant did not object . . . 1 ( admissibility of the said statements, the trial court had that duty to see that evidence ten~ered in court were legaliy obtained. Ms _Changale's views on the cautioned statements is that despite the irregularities, the same . should not be disregarded. In my considered . view, that can only be possible where such confessions leads to discovery of~ch was not the · case inthis matter. It is now settled that viola~f-.Ja~~4ing . and ~~"' cautioned statements renders the same in ~ i s l \ . , ~ ? ~ ' :Hamis \ \. 2 Others Vs Republic; Criminal Appeal~No::--99:of'2014 the Court of Appeal of Tanzania state/7.~~i:n~~ to conipliance to section 50 and 51 of the Griminal pr&e~ct: .:~.</ of seio~s'{2 a11f!:Jft?t,e CPA in recording the cautioned :r'. ~.temen~ "-~ ·. the pd and Jd an,pellants, ... ·.o~~. ,. , , affected their . qdmissibilif.U. · -. . .. ~ Again in Iddi Muhidin @·Kibatamo Vs Republic, Criminal Appeal No .. 101 of 2008 the Court of appeal of Tanzania stated in relations to a cautioned statement recorded out of the prescribed time: 20 In the present case/ it is uncontroveited that the ··appellant's statement was taken six days alter his arrest Ther_e is no evidence of the provisions of s~ction 51 (supra) having been. complied with. We hold tha_t this was a gross flagration .of the law ·and of the appellant~ basic rights. Having been recorded outside the period provided for by the la~ the cautioned statement should have not been consideredas forming par(J2/the el(idence /. / '•·-._ ·. / . . \\ ,., ~ .... ~,, . ' . _,. in this case/ as was held by this Court in-:/llnta.J_osej:Jh' . \ \ / .. / ',, . . ' Komba & 3 others vs Republic(Ctim. :4ppeal No...• 95 '>:, '-, \ ,, of2005)/ Tumaini Moleli @.John. "1(ilii{e,: &,o.(hers vs Republic {Crim. Appe9I//YO. ~-\. ', . •. '\40 of::199YJ;>' Michael ·.' - '-, ·-.. Mathias vs Republic (Crim. Appeal.No. 9 of 2007) {all /,,, . . '\\."' . ·,. ',.,_.;.,,_,'\ unreported). ., . · -/"- 1 With the aboJe~position, i~~t;ial Court ought not only to have accorded ("'.,, . ·\.__, ·•.':, . . ·,."\_.\:-/'""·,. no weight to,$u~h /evideo~.e ·but right from the beginning such evidence //~::-~-~~--:--._'''°·.:·/... ' , ,- . o_ugrt to hav~'b,eer:r-rejected. I will' therefore expunge the 3rd appellant . \° \ '•y.._,_.· '·,, ·'' ·_ . ~autio~~,? state~ents from the record and _that being done, I believe the ''-Z;·.'>·-,_,/ ·.. · . prosecudon's case crumbles. No evidence remains to convict the appellants. For the reasons above, I am satisfied that the appellant's convictions were not justified. Thus, I find merits on the consolidated appeals. 21 Subsequently, I quash the appeilant's conviction and set aside the (,' sentence thereof. I order their immediate release from prison unless otherwis~ held for any other lawfully cause. Order accordingly. 22