mungo so paulo mungo vs the republic 2021 tzhc 12806 4 october 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF TABORA AT TABORA DC. CRIMINAL APPEAL NO. 28 OF 2023 (Originating from Nzega District Court in Criminal case No. 85/2021) MUNGO S/O PAULO @ MUNGO.............................APPELLANT VERSUS THE REPUBLIC....................................................... RESPONDENT JUDGMENT Date of Last Order: 04/09/2023 Date ofJudgment: 05/10/2023 MATUMA, J. The appellant stood charged in the District Court of Nzega for two counts namely; Armed Robbery Contrary to section 287A and Assault Causing Actual Bodily Harm Contrary to section 241 of the Penal Code Cap. 16 R.E. 2019. It was alleged that on 04/11/2021 during night hours at Nyasa Maporomoko area within Nzega District, the appellant did steal a motorcycle with registration number MC 556 CXF make SANLG the property of Maganga Maige and after such stealing used a stick as a weapon to obtain or retain the stolen property. i It was further alleged that the appellant did assault Maganga Maige using a stick and caused injury on his head which is the basis of the second count of the charge. The appellant denied the charge and allegations against him which necessitated a full trial. The prosecution arraigned a total of five witnesses including the victim who testified as PW1. They also tendered four exhibits including the cautioned statement of the appellant. After a full trial the trial court found that the prosecution case was poorly investigated and poorly prosecuted. In its own words the trial court at page 15 of the judgment held; ■'From the outset, I must put dear that this is one of the cases which was poorly prosecuted proceeded by very poor investigation" Despite of such findings of the trial court convicted the appellant on the strength of the cautioned statement alone and sentenced him to suffer a custodial term of thirty (30) years for the first count of Armed Robbery and one (1) year for the second count of Assault Causing actual bodily harm, the sentences were ordered to run concurrently. The appellant was aggrieved with the conviction and sentence hence this appeal with five grounds whose major complaints are two to the effect that; i) The prosecution case was not proved beyond reasonable doubts against him. ii) The trial magistrate did not properly address his mind to the cautioned statement which was Metfally obtained. At the hearing of this appeal the appellant was present in person while the respondent Was represented by Ms Aneth Makunja and Mr. Nurdini Mmary learned State Attorneys. At the option of the Appellant, the learned state attorney started to address the court against this appeal in which she agreed that the conviction of the appellant based solely on his own cautioned statement. She then argued on the strength of the cautioned statement and how it was properly relied upon to convict. The learned State Attorney strongly opposed the appellants contention that the cautioned statement was illegally obtained. She submitted that the appellant gave the statement under his free will at the time when he was admitted at the hospital. She finally prayed for dismissal of this appeal. The appellant on his part argued that the prosecution failed to prove the case against him because even the victim failed to identify him as his assailant to the crime. He also contended that none of those who arrested him was called to testify against him and that the cautioned statement was illegally obtained because it was recorded at the hospital when he was admitted and on a very serious deteriorating condition without involving the doctor whether he was capable of giving the statement. He finally urged this court to allow his appeal and acquit him. Having heard the rival arguments of the parties, the question remains as to whether the prosecution proved its case beyond reasonable doubts against the appellant. It is undisputed fact that the appellant was notjdentified on the crime scene nor the person who arrested th pellant was called as the prosecution witness to explain the circumstances under which the appellant was arrested. The victim in his evidence made it clear that he did not identify the appellant but he was merely told that it was the appellant who was found with the stollen motorcycle. Such evidence of the victim is at page 7 of the trial court's typed proceeding during cross examination. Unfortunately, the person who arrested the appellant did not testify to authenticate the victim's averments. Therefore, there is no evidence as to identification, no evidence as to the doctrine of resent possession of the stolen motorcycle or any other sort of evidence incriminating the appellant to the crime serve for the cautioned statement in which the appellant is said to have confessed. I have taken my time to go through the contents of the cautioned statement and came to find that the same contradicts the testimony of the victim on material particulars. Thus, for instance while the victim testified that he was hit from the back by a person he could not identify at the time his passenger was standing in front of him looking for money in the wallet, in the cautioned statement the appellant is recorded to have said the victim was hit by the very passenger he had carried one Michael John. Not only that but there are so many other material contradictions between such statement and the evidence of the victim himself on the manner in which the crime was committed. But for the reason that the said cautioned statement was admitted in evidence against the governing procedure, I refrain from scrutinizing the weight of the cautioned statement against the appellant. I will discuss such proceduraHrregularity and the fate of it. 4 When PW3 G. 3280 D/CPL Shaban prayed to tender in evidence the cautioned statement of the appellant at page 11 of the typed proceedings, the appellant repudiated it on clear words that he did not make such a statement and that the same contained falsehood facts. The trial court instead of conducting an inquiry to ascertain whether the appellant made the statement or not was misled by the prosecuting state attorney to hear submissions of the parties for and against the objections. It finally dismissed the objections without conducting an inquiry. In the case of Nyerere Nyague versus Republic, Criminal Appeal no. 67 of 2010, the Court of Appeal of Tanzania gave clear directives to the effect that when the accused objects admissibility of the cautioned statement by repudiation or retraction, the trial court is obliged to conduct an inquiry to ascertain whether the statement was made and if so whether it was made voluntarily. But when the objection is made under the provisions of the CPA, the court is not required to conduct the inquiry. It will have to rule out on the objection on the basis of the facts available and the relevant governing law. The circumstances under which the statement was recorded while the appellant was seriously sick and admitted in hospital were all to be determined on inquiry proceedings but unfortunately all these were ignored. In this case the objection required the trial court to conduct an inquiry but unfortunately, the trial court and the prosecuting attorney were in hurry to convict. The cautioned statement was thus illegally admitted in evidence and is liable to be expunged from the record. Such statement is thus expunged accordingly. x 5 Having expunged the cautioned statement, there remains no any other piece of evidence to incriminate the appellant. His conviction and sentence cannot therefore stand. In the circumstances, I allow this appeal and quash the appellant's conviction in both counts. The sentences of thirty (30) years and one (1) year meted against him in respect of both counts are hereby set aside. I order the Appellant's immediate release from custody unless rther appeal is hereby COURT^udgement delivered in chambers in the presence of M/s. Ida Rugakingira learned State Attorney for the Republic and in the presence of the app 6