dickson patrick msigwa band vs republic 2021 tzhc 6623 30 september 2021

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA (MBEYA DISTRICT REGISTRY) CRIMINAL APPEAL NO. 40 OF 2021 (Originating from the District Court of Momba at Chapwa Criminal Case No. 147 of 2019) DICKSON s/o PATRICK MSIGWA @ BANDA............. APPELLANT VERSUS THE REPUBLIC........................................................... RESPONDENT JUDGMENT Date of last order; 21/09/2021 Date of Judgment: 30/09/2021 NGUNYALE, J. The appellant DICKSON s/o PATRICK MSIGWA @ BANDA was convicted and sentenced to thirty years imprisonment for the offence of Armed Robbery contrary to section 287 of the Penal Code Cap 16 R. E 2019 on 24th March 2020. Earlier, he was charged that on 10th day of August, 2019 at about night time at Mpemba area Tunduma Township within Momba District in Songwe Region did steal one motorcycle make i King lion with registration number MC 457 CCE valued at Tshs 2,000,000/=, the property of one LUSEKELO s/o MECKSON MLAWA, immediately before stealing did threat the said FREDRICK DANKEN ASANGALWISYE by using knife, sharp object and tying him on neck by string in order to obtain the said motorcycle. The present appeal is the result of his being aggrieved, he preferred an appeal on a number of grounds of appeal which aimed at faulting conviction and sentence basing on the allegations that the offence was not proved beyond all reasonable doubt because identification of the appellant was not proper, exhibits were not tendered according to procedure, the defence case was not considered in grounding conviction and material witnesses were not called to clear the doubts. The appeal was subjected to oral hearing, the appellant fending by himself submitted that the exhibit Pl was wrongly admitted as evidence. The extrajudicial statement was wrongly recorded because it was recorded when the appellant was not in good condition since he was beaten before it was recorded. He was not issued with PF3 for treatment. The alleged caution statement exhibit P4 was wrongly procured because the investigator of the case is the one who recorded the same contrary to law, the chain of custody was not laid down properly and proved. No one 2 proved about keeping the same. Section 210 (3) of Criminal Procedure Act Cap 20 R. E 2019 was not complied in respect to PW1, PW2, PW3 and PW4. No body proved about bodaboda riding. During cross examination of PW3 he testified that the person who arrested him was there but he was not brought to Court to prove or testify that they arrested the appellant with a motorcycle. He went on submitting that the offence of armed robbery was not proved, no weapon was brought to prove that armed robbery occurred. They said that they arrested him at Nandande Village but there was no document from the said village. PW1 the victim testified that he identified the appellant at the scene of crime but he did not testify which kind of light assisted him to identify. No identification parade was done. He referred the Court to the case of JARIBU ABDALLAH VS R. [1994] CAT at Dar es Salam (unreported). He concluded by inviting the Court to quash conviction and set aside sentence. Ms. Mwajabu Tengeneza, learned State Attorney appeared for the respondent. She submitted that the respondent supports the appeal after going through all records and grounds of appeal. The issue of identification PW4 in his testimony could not establish how he managed to identify the appellant. He said that the event occurred at night but he 3 could not state mode of light and circumstances at the scene of crime. PW1 the victim was expected to state how he managed to identify the appellant. The law is very clear that care is very important before grounding conviction basing on identification. She cited the case of RAYMOND FRANCIS VS REPUBLIC [1994] TLR 100 when the Court of Appeal stated that identifier must explain how he identified the accused by stating source of light, its intensity, description of the appellant at the scene and cloths he wore. It was her further submission that in the present case the event occurred at 19:00 hours. Ms. Tengeneza, learned State Attorney submitted further that the other reason to support is an issue of irregularity. At page 6 of the proceedings the exhibit tendered were not read. Exhibits registration card of the motorcycle and affidavit tendered by PW1 were not read after being admitted. The extrajudicial statement which was also tendered was not read. The law requires documents to be cleared before admission. She cited the case of ROBINSON MWANJISI VS R [2003] TLR 379 which states that documents after being cleared for admission must be read otherwise, they are to be expunged from records. He was not given chance to cross examine after admission of extra judicial statement. The 4 appellant was not given chance to cross examine witnesses contrary to section 146 of Evidence Act Cap 6 R. E 2019. The learned State Attorney could not end there, she went on submitting that they support the appeal because the ruling of the case to answer at page 22 to 23 of proceedings shows an opinion that the appellant was guilty before his defence. The Court said: "after hearing prosecution case and passed documents adduced before this honourable court it goes further that we are of the view that prima-facie case has been made to warrant conviction ..." The ruling shows that the trial Magistrate had already formed an opinion that there is conviction before defence. The defence of the appellant was not taken into account. The whole judgment could not consider defence of the appellant and the material witnesses were not called. The cyclists were not called to testify. On those reasons she submitted that they support the appeal, conviction be quashed and sentence set aside. The parties' submissions have been heard; it is the duty of the Court to answer the issue as to whether the offence was proved beyond all reasonable doubt the cardinal standard in criminal cases. 5 PW4, PW5 and PW6 were the hub of the findings of the trial Court as follows;- One, PW4 testified that, the appellant robbed the motorcycle from him at around 19:00 on 10th August 2019, two, PW5 Leonard Modestus Kasimzuri, Justice of Peace tendered extra-judicial statement exhibit EX- PE1 that the appellant admitted to have committed the offence before him, and three, PW6 E3944 D/Cpl Joel testified to the effect that he participated in arresting the appellant who was under custody of the cyclists and later on the same day 11th August 2021 he recorded his caution statement exhibit PE4 that the appellant admitted the offence. The argument of the appellant was to the effect that he was not identified at the scene of crime. His argument was supported by the respondents who also supported the appeal that legal requirements for correct identification were not met. Still the Court has a duty to scrutinize whether the appellant was correctly identified or not? In is important to consider law and practice in respect of identification by witnesses. In the Case of SHIKU SALEHE V. R [1987] TLR the Court stated; - "It is now trite law that before basing a conviction solely on evidence of visual identification, such evidence must remove all possibilities of mistaken identity and the court must be fully satisfied that the evidence is watertight. (See R. v Eria Sebwato, [I960] E.A. 174). That principle has been re-iterated by the 6 Court of Appeal of G Tanzania, in the case of Waziri Amani v Republic, [1980J TLR 250" The Court went further to state that a careful analysis is needed for the trial Magistrate to eliminate possibility of mistaken identity. It should be seen from the records of the trial Court that nature of light used to identify and its intensity, distance between the witness and the robber, time spend between the witness and the robber under observation and whether the witness had seen the robber before the event. In the case at hand PW4 is the only witness who was present at the scene of crime. The learned State Attorney said that PW4 could not establish any of the criteria which guarantee correct identification. In short, he was of the view that possibilities of mistaken identity were not eliminated. It is evident from the judgment of the trial Court that the trial Magistrate did not bother to establish whether the criteria for correct identification were met or not, he blessed the hearsay testimony of PW1 and PW3. At page 4 of the judgment the trial Magistrate said: "The witness PW1 to PW3 told this court how they were told by PW4 on how accused tired him, threatened to be killed and robbed him and took the motorcycle. PW4 being the victim narrated very well that accused hired him from Tunduma Sogea area to Mpemba along railway crossing accused roped the victim, tired him all his legs and feets, threatened to kill him and put cloths in his mount and ran away with the motorcycle and that he had a knife and bisbis." 7 Nowhere in the judgment as it is in the proceedings the trial Magistrate considered the necessity of correct identification. The anomaly that the identification was not proper cannot pass unnoticed, I hold that the appellant was not correctly identified as the scene of crime as correctly submitted by the parties. The trial Magistrate on page 5 of the judgment said that other evidence he relied to ground conviction is the extra-judicial statement as tendered by PW5, Justice of Peace. It was the argument of the appellant that the document extra-judicial statement Ex-PE 1 was not correctly procured and admitted in Court. The learned State Attorney also said the document cannot ground conviction because it was not properly cleared before admission. The proceedings dated 29th January 2020 reads during admission of the exhibit as tendered by PW5: XN PW5... he was arrested by villagers upon having information of the robbery, he then brought at police and pleaded guilty hence he was brought before me. I pray that the statement be received as exhibit. I pray to read the statement which bears my name, signature and court seal. Sgd - P. J. Rupia - RM 29/01/2020 Accused: I was beaten too much and not in good condition to speak the statement. Court: The extra judicial statement is received and marked EX-PE1. This is because it bears the testators signature, name and court seal. 8 Sgn - P. J. Rupia - RM 29/01/2020 XD BY PUBLIC PROSECUTOR PW5 PROCEEDS The accused also signed the document after confirming that were correct when I read to him. I inspected the accused was in good condition. No more Public prosecutor: I have no more. Court: R. O. F.C with swahli a common language to a witness. As per s. 210 (1) of CPA Cap R. E 2002. Sgd- J. P. Rupia - RM 29/01/2020' The above proceedings are very clear that the exhibit was not cleared before admission. It was not read to the parties or the appellant. I agree with the learned State Attorney that the extra judicial statement was not cleared before admission and read to the parties as require in the case of ROBINSON MWANJISI supra. Hence it is expunged from the records. In the other hand PW6 E3944 D/Cpl Joel recorded caution statement of the appellant. In his testimony he said that he participated in arresting the appellant surrounded by cyclists. The Court has warned itself on the possible dangers of grounding conviction based on the caution statement which was recorded by the person who investigated the case. It is unsafe to ground conviction by a caution statement recorded by the arresting police officer. 9 The defence case was not analysed and evaluated. The trial Court would have ended with a correct finding if it would have evaluated properly the evidence to end up with a balanced case. Thus, the statement during ruling of a case to answer that there is evidence warranting conviction is among the signs of biasness and one sided case. As a whole then and for the analysis made, the trial Court erred to impose conviction and sentence for the offence of Armed Robbery contrary to section 287 of the Penal Code Cap 16 R. E 2019. Conviction is hereby quashed and sentence set aside. The appellant DICKSON s/o PATRICK MSIGWA @ BANDA is hereby removed from prison unless lawful held with another lawful cause. Judge 30/09/2021 io