CRIMINAL APPEAL NO 537 OF 2020 SAIMON SAMSON MWITA 2 OTHERS VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA fCORAM: LILA, J.A.. KENTE J.A. And MGONYA, J.A.^ CRIMINAL APPEAL NO. 537 OF 2020 SAIMON SAMSON @ MWITA ....... ........ 1st APPELLANT CHACHA NYAIRA GISINDA @ MAHAIRI 2nd APPELLANT ZEPHANIA MABURA @ FELICIAN........ 3rd APPELLANT VERSUS THE REPUBLIC RESPONDENT (Appeal from the Judgment of the High Court of Tanzania, at Musoma) fKahvoza, J.) dated the 08th day of November, 2020 in Criminal Appeal No. 61 of 2020 JUDGMENT OF THE COURT 15th July & 27th December, 2024 KENTE. J.A.: The facts of this case make a very sad reading. They relate to a vicious robbery incident which occurred on 2nd December 2016 at Magunga Village in Butiama District, Mara Region. During the night hours of that day, a group of bandits wielding offensive implements such, as guns, machetes, iron bars and other deadly weapons adopted for use to cause bodily harm and death, stormed Mjala Guest House, at first, posing to the guard on duty as Police Officers, They told him that, they were performing police duties in search of potential criminals and therefore they wanted to start by going through the Guest House Entry Register to see if there were any potential suspects among the Guest House lodgers. It was the prosecution case that, the said bandits, under the fictitious guise of Police Officers, however, suddenly changed their mission and turned out to be robbers who went on demanding and stealing cash money and some other valuable items such as cell phones from the cashier and the Guest House occupants, at a gun point. Among the said occupants, is a young woman whose identity we shall not reveal for the sake of safeguarding her privacy and integrity but her evidence was received as PW3. Then aged 19 years, she was at the time, occupying room No. 6 together with her lover one Daniel Yuda Magogo @ Dani, (PW5). One thing which is for certain with regard to this incident in as much as it relates to PW3, is the fact that she will unceasingly recollect this atrocious crime obviously suffering in silence, after she escaped death by whisker. As luck would have it, she survived to tell the story of her ordeal. During the raid, the bandits shot her on the limb which had to be amputated at the shin. Following investigations that put the appellants at the centre of this incident, they were traced, arrested and finally arraigned in the Resident Magistrate's Court where they were formerly charged with the subject offences. Since the robbery was committed in a single transaction but against several individuals, the charge in the trial court comprised of twelve counts of armed robbery, predicated under section 287A of the Penal Code, Chapter 16 of the Revised Laws of which, the present appellants together with one Bhoke Mwita @ Chacha Kamkono (not a party to this appeal), were tried and subsequently convicted by the Resident Magistrates' Court of Musoma. The appellants' appeal to the High Court, (sitting at Musoma), proved fruitless, hence the present appeal. Without repeating the full outline of the particulars of each of the twelve counts which were captured in the concurrent judgments of the lower courts, we shall straight away go to the evidence led in support of the prosecution case. The evidence against the three appellants was basically two-fold. In the first category, is the evidence which was adduced by four eye­ witnesses namely, John Muniko (PW1), Jenipha Hoyard (PW3), Ibrahim Dickson (PW4) and Daniel Yudah Magogo @ Dani (PW5). These were at the time, among the customers occupying various rooms in the said Lodge. Another witness for the prosecution who was able to give an eye-witness account of the heinous crime, was Vumilia Sanane (PW2). She was during those days, a barmaid, cashier and attendant at Mjala Guest House. Basically, their combined evidence was to the effect that, they saw and visually identified the appellants at the scene of the crime. To start with, the above-named witnesses told the trial court that, as the clock ticked passed midnight, and after almost everyone had retired to bed, oblivious to the danger of the bandits that lurked within, they heard someone introducing himself as a Police Officer and ordering a guard on duty to open the main door and make sure that the rooms are opened to enable all occupants to get out supposedly ready for questioning. According to PW2, however, upon gaining entry into the Guest House, the said Police Officer who as it happened, is the first appellant, ordered her to give him all the cell phones and monies which she had in her possession including the money which she had raised from beverage and other sales. PW2 recounted that, after all occupants (save for PW3 and PW5) whose fate we shall delve into in a short while, obeyed the bandits' order and subsequently got out of their respective rooms, they were further ordered to empty their pockets and surrender their belongings, an order which the occupants quickly complied with, obviously for fear of their lives. Recounting further the harrowing incident, PW2 went on testifying that, in a move which seemed to have been designed to make sure that each occupant is left with not even a single penny, but apparently, being apprehensive that some of the occupants especially the ladies who, by virtue of their anatomical features, could devise a cunning plan such as tucking some cash deep into their lady parts, the gang-leader instructed his colleagues in the most crude form, to comb through each of the ladies' parts. It was in this regard that PW1 testified that, the first appellant whom he painted as a dangerous person completely lacking in social refinement, swiftly went on inserting his fingures into a certain Mrs. Ojwang's private parts in the presence of her husband, without shame or fear. On his side, while giving a blow-by-blow account of what happened, PW5 told the trial court that, on hearing the gang leader's ungallant order and torrential profanities which he believed to have certainly been uttered by a person who was too unmannerly to be a Police Officer, and, knowing that, what was happening was not in standing with the law and order, for, generally, Police Officers do not behave in the manner the bandits were behaving, he and his lover who had all along been on tenterhooks as to defy the order requiring them to open the door and get out of their room, phoned his friend one Saidi who was at the time, the Officer Commanding Criminal Investigation Department (the OC-CID) for Butiama District. PW5's aim, was to ask the OC-CID if there were any detectives attached to the Directorate of Criminal Investigation who had been sent out to patrol in the area and look for criminal suspects. It was PWS's further evidence that, in response, the OC-CID returned a negative answer which gave him a major scare. PW5 further told the trial court that, however, much to his relief, the OC-CID promised him that, the real Police Officers would be coming in a short while to combat the bandits and contain the situation which had already got out of hand. Due to this, the couple remained extremely wary and it had to go on refusing to open the door apparently hoping that, since all is possible with prayers, God would probably rescue them from this ordeal. However, it appears that, PWS's bold gambit was more than enough to make the robbers' blood boil. According to him, in an angry reaction, both the leader and other gang members who knew him very well and were constraining him to open the door calling him by the name of Dani as he was commonly called, threatened to kill him and his lover if he continued to hold out against their order. As this was happening and the commotion going on, according to PW1, and, just as panic increasingly gripped the whole place, in what seems to explain the unbearable terror and hopelessness to which the victims were subjected under those circumstances, PW1 told the trial court that he suddenly suffered a diarrhea without any prior symptoms or underlying health condition for which he could not help but relieve himself coram potato. That was after the first appellant had allegedly refused to accommodate him and turned down his request to go to the washrooms. For his part, PW5 told the trial court, that because of his persistent refusal to open the door, the first appellant whom he knew very well, tried to break into their room but when his efforts proved abortive, the incensed gang-leader gave instructions to the third appellant who was then armed with a firearm, to shoot at them through a narrow aperture which the first appellant had created when he was trying to break the door. PW5's further evidence was that, in compliance with the gang-leader's order, the third appellant went on firing countless gunshots into their room thereby causing him and his lover severe injuries. At the further end, PW5 went on testifying that, because of incessant blast of gunfire, the room was finally filled with unbearable gunsmoke and that, in the end, he had to give up and surrender, in a very difficult decision which he had to make with deep regrets. On her part, PW3 remained in the room laying helplessly on the floor shedding tears with a badly injured ieg. From PW5's lay point of view, it was only for good luck that PW3 who had been severely shot on the foot, did not bleed to death. On the other hand, as one would have expected, by the time the Police Officers came to their aid, PW5 said, the robbers had already escaped, from the scene. The second category of evidence adduced in support of the prosecution case and which was believed by the trial and the first appellate courts, is in the form of confessional statements contained in three cautioned statements together with one extra-judicial statement which the appellants are said to have respectively made to the Police Officers and to the Justice of the Peace after they were arrested. Notably, the first appellant's cautioned statement (Exhibit PI) which he made to No. F.1266. Detective Seargent Living Tesha (PW6) was admitted in evidence without any objection. For his part, No. F. 3622 Detective Corporal Emmanuel Mbara (PW7) recorded the third appellant's cautioned statement (Exh. P2) which was similarly admitted in evidence without being objected. The second appellant's cautioned statement (Exh. P7) which was likewise admitted into evidence without being challenged, was recorded by No. H. 3442 Detective Corporal Ludamila. It is as well worth noting here that, none of the appellants in his defence at the trial either retracted or repudiated his confession. Presenting their side of the story on their arraignment, the appellants denied in the strongest possible terms to have committed the charged offences. Each of them had an alibi for the whole of the fateful night 8 saying that, at the material time, they were not in the place where the armed robbery was committed. Whereas the first appellant told the trial court that, he had been at Kinyagali Village since the 1st December, 2016 where he had gone to look for his wife who had been missing for a couple of days, the second appellant is on record as having told the trial court that, he was arrested on 7th December, 2016 at Tarime upon allegations by one Police Officer who accused him of having stolen his (the Police Officer's) precious stone. For his part, the third appellant explained that, from 1st to 2nd December, 2016, he was on duty at Buhemba Gold Mine where he used to work. He said that, he was arrested on 4th December, 2016 after he returned home from work. After considering the evidence from both sides, the trial magistrate noted that, although the appellants denied to have invaded the said Guest House and committed robbery at a gun point, they did not deny the fact that they were familiar and well known to some of the victims of their wrongdoings as they lived together with them in the same area. That, in their evidence, the appellants did not materially challenge the evidence that they were clearly identified and further that, nor did they deny the fact that they made confessional statements graphically admitting to have committed the charged offences. The trial magistrate then went on finding that, on the basis of the prosecution evidence which was overwhelming and largely uncontroverted, the prosecution had proved its case beyond reasonable doubt. Displeased with the outcome of the trial, the appellants vainly appealed to the High Court of Tanzania, sitting at Musoma. Dismissing the appeal and, while relying on our guidance in the celebrated case of Waziri Amani v. Republic [1980] T.L.R. 250, the learned High Court Judge held that, there was sufficient evidence in support of the charge against the appellants who were positively identified by some of the victims of the crime. In this regard, the learned Judge was of the settled view that, PW1, PW2, PW4 and PW5 were credible witnesses who had properly identified the appellants at the scene of the crime. Moreover, the learned Judge of the first appellate court was satisfied and he accordingly concurred with the trial magistrate that, the appellants had made confessional statements admitting to have committed the charged offences. He thus discounted the appellants' defence of alibi and the allegations of fabrication by the Police to rope them into the commission of the offence pointing out that, the said defence did not introduce any doubt in the prosecution case which he found to be highly credible. In the ultimate event, the learned Judge found that, the prosecution evidence was more compelling than that of the appellants, and, on the basis of the totality of that evidence, he went on 10 dismissing the appeal for lack of merit thereby affirming the judgment of the trial court. Aggrieved with the decision of the High Court, the appellants have now appealed to this Court, each advancing eight grounds of appeal which however, on a careful consideration, and, so far as they are relevant to the impugned judgment of the High Court, they can be conveniently combined and condensed into the following two areas of complaint: One, that the evidence of identification of the appellants on which the two lower courts placed much reliance, was not sufficient enough to support a conviction, having regard to the fact that the robbery took place sometime after midnight which is always pitch dark if there is no moon, and two, that the appellants' confessional statements were recorded and subsequently admitted in evidence in total violation of the applicable law. We will get into the nitty gritty of the appellants' complaints in the ensuring part of this judgment Meanwhile, we wish to quickly point out that, when the appeal was called on for hearing, the appellants had no privilege of having any legal representation and, on that account, they had to fend for themselves. On the other hand, the State was represented by Mr. Isihaka Mohamed and Ms. Beatrice Mgumba learned State Attorneys from the National Prosecutions Office at Musoma. Since the appellants had nothing 11 substantial to expound on their complaints even after hearing Mr. Isihaka's oral submissions in reply, we will consider the essence of their grievances as can be gleaned from their rambling grounds of appeal. Regarding the identification evidence given by some of the prosecution witnesses, distilling from their generalized ill-feelings, the appellants' complaint appears to be in two limbs. One, that, the conditions obtaining at the scene of the crime were not favourable for a correct and impeccable identification and that, all in all, the possibilities of mistaken identity were not totally eliminated. In the second limb, the appellants are challenging the evidence obtained from the identification parade saying that, the procedures used in conducting the said parade and during the identification process, were contrary to law. With regard to the cautioned statements, the appellants' joint attack appears to come from two fronts. One, that the statements were admitted into evidence without ascertaining whether or not they were voluntarily made, and two, that the said statements were relied on to support a conviction without being corroborated. As for the third appellant, his further contention is that, his statement was recorded after expiry of the four hours period prescribed by the law. Moreover, the third appellant faulted the two lower courts for not determining the voluntariness or 12 otherwise of the extra judicial statement (Exhibit PI 1) which he made to Neema Philip (PW12), a Justice of the Peace. In response, while agreeing that, indeed, some of the appellants' complaints against the concurrent decisions of the lower courts were genuine, Mr. Isihaka supported their conviction in respect of the third and seventh counts. As for the remaining counts, the learned State Attorney submitted that, none of the prosecution witnesses gave evidence to support them. In particular, Mr. Isihaka submitted correctly in our view, that, there was no victim who appeared to testify in support of the charges in the said counts and that, even in their absence for whatever reason, their statements were not tendered in evidence pursuant to section 34 of the Evidence Act. According to the learned State Attorney, the unexplained omission left the charges in the remaining counts largely unproven. As to the third and seventh counts, Mr. Isihaka submitted that the two counts were proved through the evidence of the identifying witnesses. In this regard, we were referred to our decision in the case of Waziri Amani (supra) in which we set the standard benchmark to test the credibility of identification evidence in criminal trials. Referring to the evidence of PW1, the learned State Attorney submitted that, almost all the conditions laid down in Waziri Amani's case (supra) were met by PW1. Elaborating, Mr. Isihaka submitted that, PWl's evidence shows the duration 13 he had the appellants under observation, the short distances at which he observed them, the good lightening conditions in which the observation occurred, and the fact that PW1 and other identifying witnesses knew the appellants before occurrence of the robbery incident. Referring to the evidence of PW2, the learned State Attorney submitted that, it was materially similar to the testimony of PW1. As for PW4, Mr. Isihaka submitted that his evidence shows that he had positively identified the third appellant whom he described as his friend saying that they came from the same village. Moving forward to the evidence of the appellants' identification at the identification parade, Mr. Isihaka conceded very briefly that indeed, Inspector Simon Mwasamila (PW8) the Officer Incharge of the parade, omitted to observe some of the mandatory requirements for a proper identification parade and, therefore, the evidence, obtained from that parade, was both inadmissible and unreliable. On our part, save for the evidence of identification of the appellants at the identification parade which, as rightly submitted by Mr. Isihaka, was materially wanting because of PW8's failure to observe some of the necessary procedural requirements for a proper identification parade, we agree with the learned Judge of the first appellate court that, indeed the prosecution witnesses were able to positively identify the appellants in 14 view of what the learned Judge found to have been favourable conditions for identification of a criminal suspect. The view we take is that, the learned Judge was entitled to do so on the basis of the evidence on record which established that the appellants were among the unspecified humber of robbers who stormed Mjala Guest House on the material day and robbed the occupants at a gun point causing severe injury to PW5 and PW3. Notably, although we are not necessarily revisiting the evidence at such length, the record shows that the evidence of identification in this case, came from PW1, PW2, PW4 and PW5. To begin with, PW1 is on the record as having told the trial court thus: "The persons who introduced themselves to us as Police Officers came into my room and compelled me to get out They slapped me. Your honour, they joined me with other lodgers. Soon, the second accused took my money TZS. 360,000,00 in a state o f high electricity light from a tube light" [Emphasis added]. On her part, PW2 said, she was able to identify the first appellant after he and his fellows forced her to switch on the lights and stayed with them for almost two hours. In cross-examination by the first appellant, she told the trial court thus: 15 "I know you and I identified you among the robbers who robbed us. You forced me to switch the lights on. You were carrying a piece iron bar (nondo), a dub (rungu) and piece o f timber which you used to torture us. You were all too dose to me and I switched electricity tight on hence the extent and intensity o f tight was very bright, high and easy to identify you. You stoie even my flash and my phones". The fourth prosecution witness Ibrahim Dickson (PW4) testified that during the raid, the second appellant was armed with an axe a fact which was not controverted or otherwise challenged during cross-examination. Moreover, PW4 told the trial court that he saw and identified the third appellant of whom he had been a friend for over two years before occurrence of the robbery incident. As to the conditions obtainingat the scene of the crime which enabled him to recognize the secondandthird appellants, PW4's evidence indicates that the second and third appellants were very close to him and there was enough lightening from fluorescent lights. For his part, PW5 testified thus: "Your honour, I identified ail o f them and I knew them even before this case as I used to carry them with my motorcycle as I am also bodaboda. At the 16 scene they were too dose to us and they know me and I know them. The first accused Saimon carried rungu and panga, the second accused Chacha carried axe (shoka), the third accused Mabuia carried a gun and fired to us and lastly the fourth accused Kamkono was the operation Manager..." It is worthwhile to state at this juncture that, the evidence of what was testified by the identifying witnesses was materially similar and it matched and corroborated each other. This, in our view, is significant because it indicates that PW1, PW2, PW4 and PW5 are veracious witnesses. In the factually similar case of Marwa Mwita v. Republic, Criminal Appeal No. 6 of 1995, we held that, the fact that the identifying witnesses were consistent in their testimonies stating the role played by each bandit is proof of their veracity. In the present case, the four identifying witnesses gave detailed accounts of the roles played by each of the appellants. We take the view that, that would not have been the case had these witnesses set out to falsely implicate the appellants or otherwise honestly mistaken their identity as the appellants would want us to believe. In the circumstances, after considering all the evidence in this case and the concurrent findings made by the lower courts which we accept, we are unhesitatingly satisfied that the appellants were properly convicted of the offences on which they were charged in respect of the third and 17 seventh counts. It follows that the learned Judge cannot be faulted for ruling out the possibility of a mistaken identification given the circumstances that were prevailing during the robbery incident. As we have demonstrated above, there was ample evidence to support the conviction. With regard to the remaining counts, we have come to the same conclusion as urged by Mr. Isihaka that, since the victims of the appellants' alleged wrongdoings were not called as witnesses or their statements introduced in evidence in terms of section 34 of the Evidence Act, it would not be safe to uphold the appellants' conviction in respect of the said counts. In this connection, it is worthwhile to note here that, for a successful prosecution of the offence of armed robbery in the particular circumstances of this case, it was crucial and indeed indispensable for the prosecution to lead specific evidence that substantiates the fundamental ingredients of this offence among them being the fact that, the appellants took the particularized amounts of money and cellphones from each of the named victims with a clear intention to permanently deprive him or her of the said items. It is needless to say that, in the absence of such evidence which could only come from the said victims, the prosecution cannot be said to have provided conclusive evidence to prove beyond reasonable doubts that the appellants committed the offences charged in the 1st, 2nd, 4th, 5th, 6th, 8th, 9th, 10th, 11 and 12th counts. 18 It follows therefore that, while we are sustaining the decision of the first appellate court and dismissing the appeal against conviction and sentence in the third and seventh counts, we allow the appeal, quash the conviction and set aside the sentences which were imposed on the appellants in respect of the remaining counts. In the result and only to the above extent, the appellants' appeal is partly allowed and partly dismissed. DATED at DAR ES SALAAM this 24th of December, 2024 S. A. LILA JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL The Judgment delivered this 27th day of December, 2024 in the presence of all appellants in person and Ms. Beatrice Mgumba learned Senior State Attorney for the respondent/Republic via video link, is hereby certified as a true copy of the original.