29171122 TZHC Mwanza

11 .. . IN THE HIGH COURT Of TANZANIA AT MWANZA APPELL.ATE JURISDICTION· CONSOLIDATED CRIMINAL APPEALS, NO. 388 OF 2016& 1 of 2017 { Originating Criminal no. 19 of 2015 of the District Court of Sengerema District at Mwanza CHIEGE S/0 MERIK ............................................. ~ ... 1stAPP!ELLANT PASKAZIA FRANCIS .... , ...................... ·................. 2No APPELLANT VERSUS THE REP,UBLIC. •■ ti 1 I! :I e ■ a • • • • ■ a11aa 1 ■ 11111 11 • 1.11 a,a ••·11111,11,1 ■■ ■ 11 ■ 111 • • • • • .. ·••11• ■ ·RESPO·N·DENT 2/08/2017 & 08/10/2017 Gwae, J The 1st appellant and 2nd appellant had separately lodged their respective appeals but since before District court of Sengerema at Sengrema both .yvere jointly and together indicted of an offence of armed robbery. This ' . court decided to.consolidate Appeal No: 388 of 2016 and Criminal Appeal No. 1 of 2017 filed by the 1st appellant and 2nd appellant respectively .so that both can be expeditiously and conveniently determined. Before District Court of Sengerema at Sengerema (hereinafter to b.e referred to as 'trial court') the 1st and 2nd appellant and another person called Makoba Hussein were arraigned to the charge of armed robbery c/s 287(A) of the Penal Code as amended by Act No. 4 of 2004. The later .person was· acquitted of the offence while :the 1st and 2nd accused were found guilty and sentenced to 30 years imprisonment 1 i . I The trial court record reveals· that the 1st accused was convicted and sentenced on the date of delivery of the judgment that is on 21 October st 2016 whereas the 2nd appellant was convicted in her absentia and she was sentenced on 8 th .December 2016 when she was arrested and brought before the trial court for sentencing. The particulars of the offence read as follows, that the appellants and another person (Makoba Hussein) are jointly and together charged that on 23 rd January 2014 at about 03:30 hrs at Ntama area in Lugata within Serengerema District in Mwanza Region did steal ah money Tshs. 6, 000, 7 trousers valued at Tshs. 105, ·000/=, Tax Pay identification Number (TIN) valued at Tshs. 200,000/= Business licensing valued Tshs. 30,000/= Marriage Certificate and one bag valued ·at Tshs. 30, 000/= 4Shirts valued at Tshs, 48,000/= all properties valued at Tshs. 6, 413, 000/= the properties· of one Abdul s/ o Fimbo immediately before or after such stealing did use a knife and stubbed him with a knife on his left eye in order to retain the said property. Now, the before this court, both appellants are challenging the trial court decision and conviction thereof through their separate petitions of appeal, the 1st appellant's grounds of app_eal are; 1. That, the trial' magistrate erred in law and fact by convicting and sentencing the appellant while the offence of armed robbery was not proved to the required standard 2. That, the trial magistrate erred in admitting a kriife as exhibit contrary to the required laws and procedures 2 The 2nd appellant's ground of appeal a.s the 1st gr~und . of the 1 appellant . st herein. The substance of the prosecution evidence which led to the sat"isfaction of the t_rial court that the charge against ·the appeMants is as follows·; That on the material date, time and place aforementioned, thugs including . ' st Chege (1 appellant) and one God who suddenly attacked the· said Abdul Fimbo, according to the Victi~ (PW1) the invaders· were armed with torch and knife. The victim counter attacked tlhe bandits who eventually inflicted him on his left which was ultimately removed, the PW1 then produced a Pf3 as an exhibit (PE1) That, the victim had been able to visually identify the 1st appellant by a help of a light emanating from lump and he also identified the 2 nd appellant by her voice wheri he heard her saying 'kill him' ("mmalizeni kabisa") That, banditry incident was reported to the village authority where the 2nd appel-lant was mentioned by the victim ( PWl) and arrested on the material date at about 14: 00-17:00hrs, on interrogation by Edward Charles, village c~airman (PW2) and Bagaile Magesa, hamlet chairperson (PW3), . . she is alleged to have confessed not only to PW2 and PW3 but also to_ E. 6419 CPL. Clemence (PW4) where her statement was recorded by way of caution (PE2) the 1st appellant is also said to have been named by the PWl and 2nd appellant and he was arrested at 08:00 hrs of the material date. 3 Another piece of evidence is that, the ho.use ·of the l st _appeUant was searched in the presence of PW2, PW3 and, G. 3170 DC. James (P\.VS)where a knife with blood (PE4)was . . allegedly found in his room and Tshs. 3,_340,000/. (PE3) contained in the plastic bag was allegedly impounded outside the· toilet of the 1st appellant after one person· came while PW2, PW3, PWS were searching the 1st accused's house and started digging but on alert he ran away. That' during search the 1st appellant ~as detained at village authority office. Brief evidence of the 1st appellant is as follows; that he was arrested while at the office of PVV2 who called him with a view of being assisted to trace the victim's culprits he contended that he was neither found in possession of money (PE3) allegedlyimpounded at his premises nor knife (PE2) adding that if it was as alleged by the prosecutic;m the search warrant would have been produced as an exhibit or any his tenant could appear and adduce the evidence that his house was searched. In her defence, the 2nd appellant seriously contended that the victim did not sufficiently establish that he knows her voice and that the recorder of her cautioned statement did not give her rights including taking her HIV drugs. At the hearing both appellants were represented by Mr. Katemi, the . learned advocate however for reason best known by the 1st appellant, Mr. Katemi did not proceed representing him simply because the 1 st appellant duly notified the court on 24th May20l7 of his disengagement with Mr. 4 Katemi. The Repub!ic as usual was represented by a !earned state attorney one Miss Maryasinta Lazaro . . The 1st appellant who fended himself sought for adoption of his grounds of appeal contained his petition' of appeal however he seriously added that the principal witness did not clearly establish the purported identification to be said unmistaken as he was promptly arrested at hi$ residence if truly identified by the PWl. The 1st appellant contended further it is not clear as who took the lead to ·discovery of knife (P.E4) and money (PE3)° repeating that production of the knife was doubtful as the same was not enlisted as among prosecution exhibits, the alleged blood clot did not tally with the victim's blood' he added. Bolstering his submission, the appellant argued this court to make a reference to a decision of Court of Appeal in Kamuri Mashamba V. R Cr App~al No. 325 of 2013 (Unreported), consequently, he prayed for being released from prison. Supporting the _2 nd appellant's appeal, Mr. Katemi argued that the offence of robbery was not proved beyond reasonable doubt, according to his submission, the ingredients of offence of armed robbery were not .established, namely; theft, use of violence· irn_rnediately before or after or at • and that culprits must be armed . .Mr. Katemi went attacking the prosecution evidence on record against the 2nd appellant by stating nowhere it was adduced that the 2nd appellant was armed or application of force nor was she found in possession of the allegedly recently stolen valuable items except the identification of 5 I • t 10appellant's voice (''.mmaHzent kabisa"). Mr. Ka_temi in respect this_ kind of testimony by the principal witness argued that the identification of voice alone cannot form basis of convi~tion as voice can be easily imitated and that the PW1 did not establish the length of their relationship taking into account that the PWl is a resident of Buhongwa, he then referred this court to a Court of Appeal's decisionin Stuart Jacob V. Republic, Criminal Appeal No. 202 of 2004 (u·nreported). The 2nd appellant's adv9cate further argued that the trial court was right in · ignoring the cautioned statement (PE2) as the same was objected. Mr. Katemi also submitted that since the conditions for identification were not favourable, corroboration was therefore necessary, he then cited a case of In Mohamed Bakary and other v. R (1989) TLR 134. The learned state attorney strongly supported the trial court decision by arguing that there was proper visual identification by PWl who was familiar with the appellants, she then cited 'a judicial decision in Fadhili Fumbo @ Maliota and 3 others v. Republic (2006) TLR S0where Court of Appeal of Tanzania stated that where the identified person was well known prior to the event identification cannot be faulted. Regarding the complained on failure tendering of exhibits, the learned state attorney admitted to the legal defect of having no search warrant produced in evidence however she argued that even if the same are expunged from evidence in favour of prosecution side yet the identification is credible, in respect of admission-of knife which was allegedly not enlisted 6 as prosecution exhibits during Preliminary hearing, Mr. Maryasinta stated that that section 192 CPA does not require enlisting of exhibits. Invoking.section 22 of the Penal Code (supra) Ms. Maryasinta added that the 2nd appeliant would be liable even if he did not enter the PWI's premises or did not steal or· use violence provided that she was aiding or maximizing security for the actual offenders. The representative of the Republic also submitted that even if the identification is discarded or cautioned statement·fs expunged yet there is oral confession of the 2nd appellant sufficient to secure her guilt. In his rejoinder, the 1st appellant stated that he was not familiar with PWl and he had not performed any business with the victim while Mr. Katemi rejoined to the submission of the learned state attorney that no evidence incriminatory to the 2nd appellant that she physically committed.the offence or aided except the alleged identification of voice. Mr. Katemi further submitted that the 2nd appellant was arrested on the material date at :about 04:30 hrs- 17:00 hrs while about to travel to his relative thus no evidence as to subsequent conduct, particularly the alleged absconding. This is what in a nutshell transpired befor~ the trial court and this court, I am now bound to determine the grounds of appeal advance by the appellants and argued during hearing of this appeal. In the 2nd ~round in respect of the 1st accused only on complained ·production and admission of money (PE3) and allegedly recovered money 7 Tshs. 3, 340; 000/= (PE4}, it is glaringly ~vident that the PE4 was not· ·among the four prosecution exhibits enlisted in the facts of the case presented to the .. trial court . and wrongly adopted by the trial court. I say so si!llply because the learned trial maglstrate ought to have recorded the· memorand~m-of facts on her own-and the way she conducted by it marking each fact, that is unprocedurally wrong. I am justified to hold that the preliminary hearing was not conducted leave alone the alleged exclusion of the "knife as an intendeq -exhibit by the prose~ution. Any way that omission cannot in itself vitiate the finding. Moreover no such requirement is provided by the law as correctly found by the trial court though fbr interest of justice and fair hearing in particular it . . was quite necessary for the defence to know what type (s) of exhibits which were intended to be produced during trial so that the defence could not be taken into surprise. Enlisting of exhibits for the prosecution has been a good practice and usage ought to be adhered for the ends of · justice, particularly a weaker party.This is more evidenced by testimony of PWS wnen cross examine by the 1st appellant "By the time I was going at the scene of ·event you was (sic) already been arreste~. I came to know your home as the lea~ers of Ntama directed me" Even if the knife would have been lawfully impounded and produced yet same the same, in my considered view, carries no weight in evidence as the alleged blood clot allegedly found on the PE4 ought to medically compared to that of the victim, if they tallied it would follow therefore that piece of evidence is credible and incriminatory to the 1st appellant or any 8 other -person found in possession of that knife otherwise a person found in possession of a knife with blood clot does not necessarily in itself to have involved in a crime. Looking at his piece of evidence it is clearly established that the 1st appellant was not present when his premises was searched. Worse still as alleged by the 1st appellant and conceded by the learned state attorney that the prosecution did not produce a search warrant. I think under normal situation like the present one where the 1st appellant was under restraint, search at his residence ought to be supported by search warrant or I case· the police was not prepared or search was not anticipated and urgent need to conduct at least a certificate of seizure ought to have been produced. Omissio_n to comply with necessary procedure vitiates the validity of the PE3. In the case of Moses Charles Deo v. Republic (1987) TLR 134(CAT), it -was held; . "For a person to be found to have had possession, actual or constructive, of.goods it must be proved either that he was aware of their presence and that he exercised control over them, or that the · goods came, albeit in his absence, at his invitation and arrangement; (See also Ogembo v Republic [2003] 1 EA 222) In our instant case, I have further observed that it evidently clear one who told the PW2 where the recently stolen money was hidden was said to be 9 Mak.oba Hussein (3 rd accused), for clarity part of testimony of th PW2 when cross examined is reproduced here under; "The one who toid me where the money was, is Makoba, the victim · has been living in my village ...... " This piece of evidence brings doubts as if it is truly as asserted by the prosecution side that the money allegedly stolen was recovered through the lead and possession of the 1st appellant. Now, regarding the complained failure by the prosecution to prove the charge against the appellants in the required standard. I have carefully looked at the evidence of both sides which is on the trial court record and I have carefully given consideration to the submissions of the parties in this appeal, I am of the firm opinion that the 2nd appellant if evidence of voice identification and if her confession is found reliable the conviction can safely be secured notwithstanding that she might not actually participate in stealing or using actual violence immediately before or immediately after or at to the victim. My stance is fortified with provisions of section 22 of the Penal Code, which Jar_ ease of reference it is hereby reproduced in its extenso ~'22 ·c1) When an offence is committed, each of the following persqns is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing namely- 10 I; .1: I (a) Every person who actually does the act or makes the omission which constitutes the offence; (b) Every person who does or omits to do any act for the purpose of· enabling or aiding another person to commit the offence; · (c) Every person who aids or abets another person in committing the offence; (d) Any person who counsels or procures any other person .to commit the offence, in which case he may be charged either with committing the offence or with counselling or procuring its commission. (2) A conviction of counselling or procuring the commission fan offence entails the same consequences in all respects as a conviction of committing the offence. It is in view of the above cited provisions of the law, the submission by the 2nd appellant's counsel that no elements of the offence of armed robbery was not established is found baseless since it is on record that the actual offenders were armed and inflicted the principal witness in order to steal and retain some valuable properties owned by the PWl.. Having discarded the evic:lence as to PE3 and PE4 as indicated above, the only evidence adduced incriminatory the 1stappellant is visual identification by the PW1, it is no d_oubt that the offence in question was committed at midnight (at 03:00 hrs) thus the conditions for identification were not favourable unless and until it is sufficiently proved that the identifying witness (PW1) was quite familiar, was close (distance between) to each 11 I L other during the time of identification, source and intensity of l_ight at that material time and place, descriptions of features, prompt naming of a suspect by the identifying witness to other persons including law enforcers, particularly investigation machinery who shall reduce the naming and descriptions into writing such Report Book, investigation Register, and related things. · InKamuri Mashamba V. R Cr Appeal No. 325 of 2013 (Unreported) Court of Appeal of Tanzania with approv;3I of decis_ion of the Court of Appeal in Omari Mbezi and three others vs. R, Criminal Appeal No. 227 of 2009, where the following precautious ·measures, depending on specific facts of the case to avoid mistaken. identities, these are, 1. lf the witness is relying on the some light as an aid of visual i9entification he must describe the source and extent of that light 2. The witness should explain how close he was to the culprit (s) and the time spent on the encounter 3. The witness should describe the culprit or culprits ln terms of body build, complexion, size attire, or any peculiar body features, to the next person that he comes across and should repeat those descriptiqns at his first report to the police on the crime, who would in turn testify to that effect to lend credence to such witness evidence 4. Ideal upon receiving the description of the suspect (s) the police should mount an identification parade to test the 12 ·witness's memory and then at the trial the witness shou,d .be led to identify him again (See also JaribuAbdaUah v. Republic (2003) TLR 271) In our case, the PWl is said to have named the appellants and PW3 and . . that he was able to properly identify the 1st appellant by aid of a light, not clear whether it was from electricity or torch light. I say so because the PW2 testified· that the PW1 told him that he managed to· properly the culprits, particularly 1~ appellant by aid of torch light ("he told me that he identified them that they entered in the room with torch with strong light) while the PW3 testified that he was told by PWl that the appellants were identified due to electricity light. Another question to be asked if truly, the 1st accused was mentioned promptly why the prosecution witnesses, PW2 and PW3 in particular are silent as to steps· taken there immediately after such mentioning as opposed to the 2 nd appellant whom the traced to the guest and then to the bus standard was arrested at about 04.30 hrs. Why not such narrations or actions were refrained from being taken as rightly contended by the 1st appellant during his defence. The 1st appeI:Iant's defence and conduct of . . the prosecution witnesses raise serious doubt which should be resolved in favour of the 1st appellant. Moreover th.e conditions for identification were vividly unfavourable as earlier pointed, thus corroboration was necessary to undoubtedly secure conviction .on the basis of the alleged identification (Mohamed Bakary and other V. R (1989) TLR 134 followed) 13 In respect of the alleged voice identificationl I alive of the principle enunciated in. Stuart Jacob VR,··criminal Appeal no. 20.2 of 2004, . (unreported) Court of app~al a deci~ion cited by the learned counsel for the 2nd appellant, in this ca_se it was inter alia stated; "Voice identification is one of the weakest kinds of evidence and great care and caution must be taken before acting on it, we say so becaus.e there is always a possibility that a person may imitate another person's voice.. For voice identification to be relied upon it must be established that the witness is familiar with the voice ·in question as being the same voice of a person at the scE=ne of crime" Also in the case·of Mungai v Republic [1965] EA 782, it was held that: "There is possibility of mistaken identity by voice where it is claimed that the person identifying has never had face to face discussion with the person being identified". The prosecution witness, PWl testified that the 2nd appellant is his lover whom he said to have heard her saying that he be beaten to death {mmalizeni kabisa), clearly the· PWl meant the one whom he heard his or" her voice 'Mmalizeni kabisa.' wa·s not _visually identified by him (PWl) nor did he faced each other except her sound. It is my firm view that, this piece of evidence also needs corroboration otherwise to rely on it wholly may probably lead to miscarriage of justice. . The facts of this case to my . established view are distinguishable from those in Kangaja Ally and 14 • I · Juma AUy v. Repubik (1980) TLR 270 the appellants had been identified . . by voice and sight by two witnesses and the deceased made a dying declaration identifying the appellants as having attacked him. Hence in the ' ' ·former case t~ere was corroborative un_like the present unless the · . confession is credible which I am not prepared to hold so as was lightly· regarded by the learned trial magistrate. Be it as it may, the appeal is therefore allowed. The conviction is quashed . ' ·and the sentence against the appellants are hereby set aside. The appellants are to be released from prison forthwith unless they are held for some other lawful-£quse .-·· '., .. , .:·"':-,. (s) . '·" <,,:~<')~\\ Ju ge j ('•l fff 22/11/2017 \1.·;.•••.·.:_,:_::,_:.~_l.1t.•.'.~---•.·_)_:_:_:_~ · , '-. ~-c - _ .•. . ,.. . /~t/P :rrfi '\~~::r rr;~'.'~~.?;.-.·:;~~/ ->·~;;,;7/ \~ ~" '~'¼ ,{"./ •{t;:, "f:1 Right of appffii~';•,·~court of . peal of Tanzania is fully explained. 1?)Jli~~~\ e (';{' ')i\\ ~\ i,c,, ~ / /'¼;J Ju ge 22/11/2017 \:it\~- '\;, ✓t;-,~~ ·\:...;ft).',. ·~~,.:,:i,~-, / ', .;i,~~:<?f; <'c{ ...~ kl' 4 ~;.~~": ;~-1 f¼/2f , . ~- ,:;,f¥ ~;;-:,, ·-:~~k;~~:~~~~:~·;;,;;:-f.i11'~~ 15