frank richard shayo tamii vs republic 2021 tzhc 6868 13 october 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHl DISTRICT REGISTRY AT MOSHl CRIMINAL APPEAL NO. 42 OF 2020 (Originating from Criminal Case No. 250 of 2015, District Court of Hai at Hai) FRANK RICHARD SHAYO @ TA M II................ ........ APPELLANT VERSUS THE REPUBLIC ....................... ........................... .......... RESPONDENT JUDGMENT MUTUNG1 J. The appellant Frank Richard Shayo @ Tamii (the then second accused) and one Jonas Frank Luhende (not party to this appeal) were arraigned before the District Court of Hai at Hai (trial court) with one offence of armed robbery contrary to section 287A of the Penal Code, Cap 16 R E. 2002 now R.E. 2019. According to the evidence adduced, it was alleged on 4lh June; 2015 around 22:00hrs at Narumu Orari area within Hai District in Kilimanjaro Region, the duo used a gun to threaten and steal one Motorcycle with Reg. No. MC 862 ANZ make Toyo valued at Tshs 1,800,000/=, one mobile phone make Nokia valued Tshs. 45,000/=, one mobile phone make Tecno valued at Tshs. 59,000/= and cash money Tshs. 60,000/= Page 1 of 10 properties of one Philbert s/o Isdory Kiondo, (PW1). The prosecution case is such that PW1 while riding his motorcycle heading for his home from Narumu village was blocked by a wire tied across the road. As he stopped was suddenly attacked and his motorcycle taken away by unknown people. He cried out for help, good Samaritans responded and assisted in search of the motorcycle. They further reported to the police and on the following day the motorcycle was found together with the suspects {the accused persons) . The two accused pleaded not guilty to the offence but after the prosecution case which involved four (4) witnesses and three exhibits (“P I , P2 and P3”) was closed, the appellant and his co-accused jumped bail hence did not defend themselves. They were all found guilty, convicted and sentenced to serve 30 years imprisonment. Aggrieved with the decision, the appellant filed this appeal comprising 6 (six) grounds of appeal as follows: - 1. That, the learned trial magistrate erred in law and fact in failing to comply with mandatory requirement of section 312 of the Criminal Procedure Act hence relied on speculative ideas when composing her judgment. 2. That the trial magistrate grossly erred in law and fact in convicting the appellant basing on a cautioned Page 2 of 10 statement which was unprocedurally recorded, tendered and received in Court as exhibit. 3. That, the trial magistrate erred in law and fact in convicting the appeiiant basing on Exhibit PI (motor cycle) tendered by the complainant without explanation on how it found its way to him. 4. That the trial magistrate erred in law and fact in failing to hold that the prosecution evidence was contradictory, unreliable and had material inconsistences putting a prudent court into inquiry against relying on such evidence to convict 5. That the trial magistrate erred in law and fact in failing to comply with section 226 of the Criminal Procedure Act by giving the appeiiant an opportunity to defend himself and decide whether he had a probable defence on merit. 6. That the trial magistrate erred in law and fact in holding that the prosecution case was proved without any shadow of doubt as required by law. When the appeal was called up for hearing it was ordered the same be by way of filing written submissions. The appellant appeared in person and unrepresented whereas the respondent was represented by Ms. Grace Kabu, learned state attorney. in support thereof, the appellant submitted, the appeiiant was never identified at all either at the scene of the crime, at the Page 3 of 10 police station and at the trial court during hearing. He argued, since there was no proper identification, this case is premised on a caution statement alleged altered by the appellant and the doctrine of recent possession which was wrongly invoked by the trial magistrate. The appellant also argued, it is unknown what was tendered by PW1 during tria l whether it was a motorcycle or motorcycle registration card as seen at page 12 of the trial court proceedings. The appellant further explained, assuming that the said exhibit was a motorcycle, the complainant did not give the description nor the registration number. To put salt to the wound it was unprocedural for PW1 to tender the said exhibit without showing how it found its way into his possession. It was appellant’s further submission that. Exhibit P2 and P3, (the caution statements], were unreliable as they were recorded by the same police officer (PW4), which was prejudicial for him to do so. Be as it may, were not cleared for admission as PW4 failed to describe them before tendering. More so, the statements were not read out aloud in court after their admission therefore the appellant was prejudiced to cross- examine on their contents. Lastly, the said statements were taken out of the four (4) hours time limit which is contrary to section 50 of Criminal Procedure Act, Cap 20 R.E. 2019. He prayed the same be expunged from the record. Page 4 of 10 He finally prayed this court allows the appeal, quashes conviction, sets aside the sentence and set him at liberty on the ground the case against him was never proved at the required standard in criminal jurisprudence. In reply Ms. Kabu learned Attorney supported the appeal on the ground, there was no proper identification of the appellant at the scene of crime and the fact that caution statements were not read out aloud before the court after were admitted in evidence. She also conceded to the fact that, if is unknown how the seized motorcycle, exhibit Pi got into the hands of PW1 while it was under police custody. Since there is no evidence connecting the appellant to the offence he was charged with, the appellant should be set free. After I have gone through the parties' submissions, trial court’s proceedings and judgment, I also support the appeal. It is apparent on record the crime occurred at night around 22:00hrs, in that regard proper and correct identification of the appellant was of utmost importance. There are a number of cases in respect of identification under unfavourable conditions. One among others the case of Waziri Amani Vs. Republic H 9801 TLR 250. which underscores such conditions as follows: - Page 5 of 10 "...The principle of identification is that where a witness is testifying about identifying another person in unfavorable circumstances like during the night. He must give clear evidence which leaves no doubt that the identification is correct and reliable. To do so, he will need to mention all the aids to unmistaken identification like proximity to the person being identified, the source of light and its intensity, the length of time the person being identified was within view and whether the person is familiar or a stranger it In the appeal at hand, the complainant (PW1) testified he never identified anyone at the scene of crime. Even when cross examined and re-examined, he maintained he did not identify anyone. He adamantly stated he never knew the appellant before and this: was the first time he had met him. in the circumstances, since the complainant (PW1) himself completely denies to have identified his culprits, and no proper identification procedure such as an identification parade was conducted to eliminate the possibility of mistaken identity, there was absolutely no sufficient identification of the appellant made. Furthermore, PW3 and PW4, the investigators testified to have found the stolen motorcycle abandoned in a potato field Page 6 of 10 when investigating the robbery report. They later arrested the appellant and another accused and upon Interrogation they admitted to have committed the offence. However, the caution statements tendered by PW4 were not read out aloud after their admission. Reading out the contents of any document to be admitted into evidence is vital, as it allows the accused person to know the contents and prepare his/her line of cross-examination. Failure to do so could easily lead to injustice and that is why the Court of Appeal on many occasions has stressed, trial courts should strictly observe the laid down procedure. In the case of Robinson Mwaniisi and Three Others Vs. Republic 120031 T.L.R. 218. the Apex Court stated down the tests when a document is introduced in evidence. It held interalia: - “...Whenever if is intended to introduce any document in e vid e nceit should first be cleared for admission and be actually admitted before it can be read out.... [Emphasis added].” Once the above was not followed the caution statements are hereby expunged from the record. Assuming that, they were properly admitted, still the said caution statements lack corroboration from independent witnesses on how the robbery incident was planned and executed by the appellant. I am fortified by the position maintained in the case Page 7 of 10 of Hatibu Gandhi and Others Vs. RepublicTl 9961 TIR 12. CAT at DSM, where the Court of Appeal held that: - “It is true that as a general rule evidence which itself requires corroboration cannot provide corroboration for other evidence also requiring corroboration. ” Borrowing leaf from the above authority it is clear, there is no corroborating evidence proving the appellant intentionally planned and eventually used a gun to threaten and rob PW1. The caution statements cannot in themselves be corroborating evidence. It has been observed, as rightly submitted by the appellant, exhibit PI is not certain whether it was a registration card or the motor cycle. In absence of the registration card in the record, the court draws an inference that, it was the motorcycle tendered instead. However, its chain of custody was broken, PW3 and PW4 testified they found the motorcycle abandoned in a potato field but it is not clear how the same found its way to PW1 who tendered it in court. The foregoing notwithstanding there is a glaring irregularity in this matter. Though the appellant mentioned the same in his fifth ground, he did not expound further on the same. The ground is on the applicability of section 226(2) of the Criminal Page 8 of 10 Procedure Code Cap 20 R.E. 2019. For the sake of clarity the same reads: - (2) If the court convicts the accused person in his absence, it may set aside the conviction, upon being satisfied that his absence was from causes over which he had no control and that he had a probable defence on merit. Reading through the record, on 11.7.2019 after the appellant was arrested, he was taken before Hon. Msoffe RM. The record is quoted as thus: - “Public Prosecutor: - ft is for judgmen t but was read over before prosecution, accused was absent but now we managed to get him>I pray the sentence be read over to him. Court: - Sentence read over to 2nd accused and Right of Appeal explained It is beyond a shadow of doubt that the appellant was not called upon to address the court on the reason Of his absence. Further the court had not satisfied itself whether or not, the appellant had a probable defence on merits. The court finds substance in this ground. In light of the above analysis, and as stated earlier, I find this appeal meritorious and hence is allowed. The conviction Page 9 of 10 entered is thus quashed, sentence set aside and the appellant is ordered to be released forthwith unless held in custody for other lawful reasons. It is so ordered. B. rTmUTUNGI JUDGE 13/ 10/2021 Judgment read this day of 13/10/2021 in presence of Appellant and Mr. Innocent Njau (S.S.A) for the Respondent. B. R. MUTUNGI JUDGE 13/ 10/2021 RIGHT OF APPEAL EXPLAINED. B. R. MUTUNGI JUDGE 13/ 10/2021 Page 10 of 10