mussa hamis njenja vs the reublic 2023 tzhc 20599 31 august 2023

IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM CRIMINAL APPEAL NO.85 OF 2023 (Originating from Criminal Case No. 456 of 2021, Ilala District Court) JOSEPH EMMANUEL SAMWELI APPELLANT VERSUS THE REPUBLIC RESPONDENT JUDGMENT 29/08/2023 to 01/09/2023 E.B. LUVANDA,J In this appeal, the Appellant above mention is appealing against both conviction and . sentence of thirty years for committing armed robbery contrary to section 287A of Penal Code, Cap 16 R.E. 2019. In the petition of appeal the Appellant raised the following grounds:- 1. That, the learned trial court grossly erred in law and fact by holding the Appellant's conviction basis (sic, based) on the visual identification evidence of the said Identifying prosecution witnesses(PWl and PW3) which was on material aspect, unsatisfactory incredible, unrealible and not watertight. 2. That the learned trial court erred in holding on the evidence of PWl who failed to give description of the Appellant before an identification parade was conducted. 3. That the learned trial court erred in law and fact by failing to realize that the particulars of the offence stated in the charge sheet varies with the evidence on record regarding the aiieged properties stoien hence rendering the charge unproved. 4. That, the iearned trial court erred in law and fact by hoiding the Appeiiant's conviction without considering that the search and seizure of the said properties was improperiy conducted since during the trial, search warrant/search order was not tendered thus rendered a certificate of seizure (exhibit PI) a nuliity. 5. That the iearned thai court erred in hoiding the Appeiiant's conviction basis (sic, based) on the cautioned statement (exhibit P4) without considering that the witness (PW4) who said to have recorded the same was an arresting officer and also an investigator officer while in law that is not ailowed. 6. That, the iearned trial court erred in iaw and fact by convicting the Appeliant for the offence of armed robbery whereas there was no sufficient evidence neither given by PWl nor PW3 to establish the said commission against him. 7. That the iearned trial court grossly erred in iaw and fact by failure to observe that the case for the prosecution was not proved to the standard required in the criminal case. The Appellant argued ground number one and two jointly where he submitted that the visual identification of the identifying witnesses PWl and PW3 was unsatisfactory, incredible and unreliable because the period under which the Appellant was under observation by PWl and PW3 was not disclosed. Two, a distance was not disclosed. Three, PWl and PW3 failed to name the Appellant at the earliest opportunity. He cited the case of Marwa Wangiti Mwita & Another vs. Republic,[2002] TLR 39. On reply, the learned State Attorney submitted that the offence took place during broadly day light, the Appellant was known by the complainant even before the Incident and the complainant used to work with the Appellant for six months, argued that the Identification parade was unnecessary. On rejoinder, the Appellant submitted that the evidence of visual Identification Is the weakest, argued that before It Is taken as a basis of conviction must be water tight, citing Wazlri Amani vs. Republic,(1980) TLR. He submitted that PWl could not mention the name and description of the Appellant at the earliest opportune time. I have failed to comprehend the complaint by the Appellant. The Incedent took place on broad day light between 11:00 hours and 12:00 hours. PWl Identified the Appellant as among family member of PWl's principal that Is PW3. PW3 stated that he lived with the Appellant for six years. Both PWl and PW3 mentioned the Appellant by his name Joseph. To my view, the Identification by PWl and PW3 was proper to the extent that It leave no room for saying It was tainted by any mistaken Identification. Even the identification parade conducted at the Central Police for PWl to Identify the Appellant was superfluous. Therefore ground number one and two are dismissed. Ground three, the Appellant submitted that tin the particulars of offence it shows the Appellant steal cash Tshs 440,000/=, mobile phones make Samsung, Techno Smart Phones, one laptop make Toshiba, one bag, three cheques books and motor vehicle Toyota Rav 4 properties of PW3, while the testimony of PW3 mentioned cheque books, USD and EURO and other documents which does not feature in the charge sheet. He cited the case of Issa Mwanjiku @ White Vs. Republic Criminal Appeal No. 175/2018. In reply, the learned State Attorney submitted that the stolen properties as indicated in the charge sheet have been well articulated by PW3 during examination in chief and re examination, to include cheque books, cash Tshs 440,000/=, motor vehicle Toyota Rav 4, at pages 18 and 19 of typed proceedings. To my view, this complaint is without substance, PW3 mentioned lost item to include a bag, cheque, two mobile phone make Samsung worth 290 and Techno worth 200,000/= and on re examination he mentioned cash 440,000/= as among item which were stolen. PWl's testimony was to the effect that he was bundled by the bandits into a motor vehicle Toyota Rav 4 belonging to PWl's principal, and taken away, thrownout by the kidnappers. In the circumstances a mere fact that PW3 did not mention a car in support of a charge sheet, is immaterial. Ground number four, the Appellant submitted that the search was conducted by PW3 who was not an officer in charge, neither given a written authority to execute search nor search warrant. He cited the case of Joseph Charles Bundala vs- Republic,Criminal Appeal No. 15 of 2020. In reply the learned State Attorney submitted that when a certificate of seizure was tendered, the Appellant did not object and the Appellant did not cross examine on the same. On rejoinder, the Appellant insisted that a certificate of seizure (Exhibit P2, sic, PI) was from the search which was illegal. It is true that PW2 who purport to conduct search into the room of the Appellant at Kigogo on 08/06/2021, did it without a search warrant. In the case of Joseph Bundala (supra) at page 15, the Court of Appeal ruled I quote, "Without much repeating ourseives we wish to state that, as quietiy submitted by Ms. Makundi, PW5searched the house of the Appeiiant withouta search order or warrant Since the search was conducted contrary to the dictate ofsection 38 ofthe CPA andPGO 226, we have no doubt thatit wasan iiiegaisearch and the triai court did notcompiy with section 169 ofthe CPA, it had no right to act on it Consequentiy, we proceed to expunge it from the record ofappeai. Therefore certificate of seizure exhibit PI is expunged from the records as it emanate from illegai search. The fourth ground is meritous. Ground number five, the Appeilant submitted that it was improper for PW4 who is the investigator to record a caution statement exhibit P4. In reply the learned State Attorney submitted that section 158 (4) of the Criminal Procedure Act, amended by Act No. 3/2011 empower the recording officer to arrest and investigate, argued that what was done by PW4 was his duty provided by law. It is true that PW4 was an investigator and arresting officer in this case. In the case of Njuguna s/o Kimani & Three Others vs. Regnam [1954] EACA 316 (cited by the Appeilant) the court ruled. I quote, "It is advisable if not improper for the police officer who is conducting the investigation ofa case to charge and record the caution statement" The same position was taken by the Court of Appeal of Tanzania in Idd Muhidin Kibatamo v. Republic Criminal Appeal No. 101/2008. However according to Act No. 3/2011 (supra), mention the investigating officer to be among persons who can record accused caution statement. The test here will therefore, be whether the accused (Appellant herein) was prejudiced any how by PW4 recording his caution statement, regard be made to the proceedings where the Appellant did not object admissibility of exhibit P4. To my view in absence of explanation as to how the Appellant was prejudiced, the position in Nguguna (supra) cannot be taken on a whole sale basis. In the case of Republic vs. Marceline Koivogui, Criminal Session No, 151/2015 HC Dar es Salaam, this court speaking through Matogola J (as he then was), had this to say, I quote, 'There is nothing wrong therefore for the investigating poiice officer to record the accused person caution statementprovided that he compiy with the iaw reiating to recording of accused caution statement' For brevity. Act No. 3/2011 which amended section 58 of Cap 20 (supra) by inserting subsection (4) after subsection (3), provide, I quote, "(4)subject to the provision ofparagraph (c)ofsection 58, a police officerInvestigating an offence for the purposes of ascertaining whether the person under restraint has committed an offence may record a statement of that person and shaii (a) show the statement to the person and ask him to read it, or (b) read the statementto him andask whether he wouidiike to add or correctanything from the statement" Therefore ground number five Is unmerited. Ground number six, the Appellant submitted that there Is no evidence given by PWl and PW3 to prove that the said offence took place on the material date, arguing It Is doubtful whether the said car was stolen and the ropes and plasters were not tendered In evidence. The learned State Attorney In reply, submitted that the trial court accorded weight to the credible prosecution witnesses, citing Goodluck Kyando vs. Republic, Criminal Appeal No. 118/2003 CAT. Arguably the evidence of PWl and PW3 was cogent, plausible and credible. The Appellant did not adduced tenable reasons and grounds for misbelieving PWl and PW3. Cross examination marshalled by the Appellant and co- accused at the trial, did not manage to shake their credibility. Above all it Is not the law that each and every fact should be physically brought and tendered In court proceedings, to my view the oral account given by PWl and PW3 on how they were tied hand with rope and covered with or plastered on their month. Including on how they managed to unrope and unplaster themselves, suffices to prove a fact that Indeed ropes and plaster were there. Section 61 of the Evidence Act, Cap 6 R. E. 2019, provides, "AH facts, except the contents ofdocuments, may be proved by oral evidence. Therefore this ground is unmerited. Ground number seven is taken into board by adumbration in ground number one, two and six. Therefore ground six too is dismissed. Save ground number four with eventuality of expunging a certifiCBte if seizure exhibit PI, the rest grounds are unmerited, accordingly dismissed. As such exhibit PI cannot render the whole prosecution case to flop. The verdict and sentence of the trial court is upheld. Appeal is glismissed. c. X; E.B IdJVANDA mOGE /09/2023 Judgment delivered in the presence of Ms. Agness Mtunguja learned State Attorney and the Appellant in p^t^n. E.Bi LUVANDA oQ oi/dge o (M09/2023 X y