crispian otieno atukuzwe vs republic 2013 tzhc 2074 29 april 2013

IN THE HIGH COURT OF TANZANIA AT ARUSHA CRIMINAL APPEAL NO. 49 OF 2012 (C/F Monduli District Court at Monduli in Criminal Case No. 82 of 2011) BETWEEN CRISPIN OTIENO ATUKUZWE.................................... APPELLANT AND THE REPUBLIC.............................. ........................RESPONDENT Date of last Order: 27/08/2012 Date of Judgment: 29/04/2013 JUDGMENT A.C. NYERERE, J. The appellant herein was charged before the District Court of Monduli at Monduli of two counts that is, personating as a Public Officer contrary to the provisions of section 100 of the Penal Code, [CAP. 16 R.E, 2002] where it was alleged that, on 29th day of January, 2011 at about 10:00hrs in Monduli and Arusha region, the appellant herein impersonated to be a new Monduli District Magistrate to one ELIAS g ilb e r t whereas in the 2nd count, the appellant herein was charged of obtaining credit by false pretence contrary to the provisions of section 305 of the Penal Code (supra) where it was alleged that, on the same date that is, 29th day of January, 2011 at about 10:30hrs at Meserani Duka Bovu area i within Monduli District and Arusha region, the appellant herein obtained by false pretence cash money amounting to Tshs. 410,000/= the property of elias g il b e r t . The appellant was found guilty of the two counts, thus convicted and sentenced. Aggrieved by the Judgment entered by M.P. Mrio, RM; the appellant herein preferred the present appeal on five (5) grounds that; 1. The trial Magistrate erred both in law and in fact in holding that, the appellant was adequately identified by PW2. 2. The trial Magistrate erred both in law and in fact by failure to detect that, the alleged Confession Statement was taken beyond the prescribed time limit. 3. The trialMagistrate erred both in law and in fact in holding that, the charge against theappellant was proved beyond reasonable doubts. 4. The trialMagistrate erred both in lawand in fact in erroneously violating the provisions of section 312(1) and 235(1) both of the Criminal Procedure Act, [CAP. 20 r .e , 2002] in composing her Judgment. 5. The trialMagistrate erred both in law and in fact by failure to note that, PW2 did not prove existence of the alleged stolen phone and money. 2 Hearing of the appeal was agreed to be viva voce in which the appellant appeared in person whereas Miss Kassala learned State Attorney appeared for the Respondent/Republic. Arguing for the appeal, the appellant submitted that; he was neither convicted nor sentenced as per the provisions of the laws as no provisions of law in respect of conviction were cited by the trial Magistrate. The appellant added that; there was no compliance to the provisions of section 235(1) of the Criminal Procedure Act (supra) adding that, the trial Magistrate did not cite the sections upon which conviction was met as demanded under the provisions of section 312(1) & (2) of the Criminal Procedure Act (supra). In support of the above supposition, the appellant referred this Court to the case of ra m a d h a n i msabaha v s . th e re p u b lic , Criminal Appeal No. 8 of 2011 where the High Court of Tanzania at Arusha had a matter of the same scenario thus holding to that effect. It was further submission by the appellantthat,though p w i and PW2 testified to have identified the person who took the stolen properties, yet; the two failed to mention the names of the said person with in mind the fact that, the appellant was arrested after lapse of long period of time from the incident date. 3 appellant argued to have failed to inform the Court as to the beating inflicted upon him saying that; on the date he was arraigned in Court as on that material date, the matter was before the Court just for mention thus inappropriate for him inform the Court of such complaints. The appellant further submitted that, the trial Magistrate erred in believing that, one of the prosecution witnesses was robbed a phone but without the said witness producing a receipt for purchasing the said robbed property in proof of ownership. It was from the above the appellant prayed for his appeal to be allowed. In reply; starting with the 1st ground of appeal, the learned State Attorney referred this Court to the contents of the 2nd paragraph at page 6, of the Judgment by the trial Court that reads; "I hereby find the accused person guilty to the two offences above and hereby convict him forthwith". It was from the immediate above quoted part of the Judgment by the trial Court the learned State Attorney argued the appellant to have been properly convicted on two counts as stated in the Judgment unlike the proposition by the appellant that he was not convicted. 4 Reference was made to the case of ra m a d h a n i masha v s . r e p u b lic [1985] t . l . r 172 where the High Court of Tanzania held; "In a criminal trial, where it is decided that the accused person is guilty, the basic elements o f the decision o f the court are conviction and sentence............ ' ' It was from the above the learned State Attorney argued the appellant to have been properly convicted and sentenced. As to the issue of identification, Miss. Kassala learned State Attorney for the Respondent submitted that; the issue of identification is not disputed as the appellant was clearly identified by PWl and PW2 as the incident occurred at 9:30am that is, in the morning when the appellant introduced himself to PWl to be a new Magistrate at Monduli District Court. The learned State Attorney further argued the appellant to have been properly identified as per page 5 of the Court proceedings which shows that, PWl stayed with the appellant in a male barber shop in which the appellant spent an hour with p w i when the appellant was cutting his hair and shaving his beards. The learned State Attorney added that, after the hair cutting and beard shaving; p w i called a taxi belonging to PW2 for the appellant in which, they also had time to negotiate the transport charges from Monduli to Arusha. The learned State Attorney added in her submission that, PW2 also had time to observe the appellant as he boarded him from Monduli to Miserani 5 for about twenty (20) minutes. To the learned State Attorney, the period from the incident date that is, 29th day of January, 2011 to the date of arrest that is, 11th day of May, 2011 could not have made it difficult for both pw i and PW2 to identify the appellant in compliance with what was held in the land mark case of w a z ir i am ani v s . th e r e p u b lic [1980] t .l.r 250 where four principles were established, that is; whether all the aids to unmistaken identification like proximity to the person being identified, the source of light, its intensity, the length of time the person being identified was within view and also whether the person is familiar or a stranger. In respect of the issue of the Cautioned Statement, Miss Kassala learned State Attorney submitted that; per the provisions of section 50(1) (a) of the Criminal Procedure Act (supra), the prescribed time limit given to record the accused's statement is four (4) hours from his arrest and per the Court record, the appellant was arrested on 11th day of May, 2011 and at 8:49a.m on the very same day, his Cautioned Statement was recorded within the prescriptions of the law not necessarily in a form of questions and answers, importantly; the said Cautioned Statement was recorded in compliance to the provisions of sections 57 and 58 of the Criminal Procedure Act (supra) and arraigned in Court on the same day. The learned State Attorney added that; the Cautioned Statement was not recorded by a Justice of Peace having in mind the fact that, Justices of Peace record Extra Judicial Statements only unlike Cautioned Statements 6 which are recorded Dy Police omcers aooing mat, cne appenam. was never threatened to write his Cautioned Statement as alleged. Regarding the 4th ground of appeal, the respondent's learned counsel submitted that; the appellant introduced himself to p w i as a new District Magistrate (as it appears in his Cautioned Statement which was admitted and marked Exhibit P i) whereas upon believing him of that status, pw i called PW2 (a taxi driver) who again reintroduced himself as a new District Magistrate with an advancement of his intention to go to town and then back. As to the issue of receipt in respect of the stolen mobile phone, Miss. Kassala learned State Attorney submitted that; the appellant was given both the mobile phone and money amounting to Tshs. 170,000/= on trust that, the appellant was a District Magistrate as impersonated, whereas as to whether PW2 had a phone, the learned State Attorney added that, PW2 had a phone that is why p w i managed to call p w i by telephone for him to pick the appellant to town. It was from the above the learned State Attorney prayed for the appeal to be dismissed for lack of merits. In rejoinder; the appellant just reiterated what he earlier submitted in chief thus rendering it unnecessary for this Court to reproduce the same at this stage. Having gone through the Court records and the respective submissions by the appellant in person and the learned State Attorney, this Court has the following in disposal. At the outset, let me hasten to say that; it is not disputed from the testimonies by p w i and PW2 that, the person who impersonated to be a new Monduli District Magistrate and also the one who obtained credit by false pretence belonging to one elias g ilb e r t was a stranger to both p w i and PW2 as categorically clear testified by both p w i and PW2. It then follows that; the appellant being stranger to the key witnesses that is, p w i and PW2 and under the circumstances of the matter at hand that, the alleged conman absconded after the incident as testified by PW2 with an arrest of the appellant after more than three (3) months from the incident date, then; the above state of affairs necessitates the prosecution to have conducted an Identification Parade for p w i and PW2 to identify the person alleged to have impersonated to be a new Monduli District Magistrate with a resultant commission of an offence of obtaining credit by false pretence belonging to elias g il b e r t . Since the matter at hand in the first place refers to issues of visual identification in accordance to the cardinal principle laid down by the erstwhile Court of Appeal of Eastern African in the case of ABDALLAH BIN WENDO & ANOTHER vs. REX [1953] 20 E.A.C.A 116 and followed by the Court of Appeal of Tanzania Court in the case of w a z i r i a m a n i vs. R (supra) regarding the evidence that; no Court should act on such evidence unless all the possibilities of mistaken identity are eliminated and that the evidence before it is absolutely water tight, it follows that; from the circumstances of the matter at hand, this Court holds that; the prosecution ought to have conducted an Identification Parade under circumstances when the accused is or was stranger to the identifying witness as dealt by the Court of Appeal of Tanzania in the case of musa e lia s and 2 o th e rs vs. r, Criminal Appeal No. 172 of 1993 (Unreported) that; "It is a well established rule that dock identification o f an accused person by a witness who is a stranger to the accused has value only where there has been an identification parade at which the successfully identified the accused before the witness was called to give evidence at the trial. " From the above, since the prosecution has failed to conduct an Identification Parade; consequently, what was held in the case of m usa elia s a n d 2 o t h e r s vs. R (supra) applies. For that matter, the testimonies by both pw i and PW2 should and are hereby disregarded. From the immediate above findings therefore; the only available piece of evidence is the alleged Cautioned Statement by the appellant which was admitted and marked Exhibit P i during trial. Though the findings of the trial Court were not based on the Cautioned Statement, yet; an account of the same in disposal of the matter at hand is inevitable. It is on record that, after the appellant herein raised an objection as to validity of the Cautioned Statement, the trial Court conducted an inquiry prior to admission of the Cautioned Statement as an Exhibit, 9 with findings that; the said Cautioned Statement was properly drawn thus worth to be admitted. This Court holds the trial Court to have properly admitted the Cautioned Statement as the allegations by the appellant herein that he was beaten by the Police to write the Statement in defense did not feature in his defense during the inquiry conducted by the trial Court with the appellant raising the issue of being beaten during his defense and that he was beaten to an extent of getting swollen. It is under such circumstances this Court holds the trail Court to have properly admitted the appellant's Cautioned Statement regardless of the appellant's Objection as to voluntariness. It follows that; since the above Cautioned Statement was retracted by the appellant, then; the same needed to have been corroborated unless the trial Court was clear in her mind that all the dangers were are cleared. That position was met by the Court of Appeal of Tanzania in the case of HEMED ABDALLAH vs. REPUBLIC [1995] T.L.R 172 whereas the Court observed that; "(i) Generally it is dangerous to act upon a repudiated or retracted confession unless it is corroborated in material particulars or unless the court, after full consideration o f the circumstances, is satisfied that the confession must but be true; To this Court, from the circumstances of the case in which the prosecution failed to conduct an Identification Parade as earlier above narrated, 10 there is no way one can safely hold that the appellant was only and the only one who committed the charged offence to an extent of dispensing with the need to call for corroboration. Reasons wherefore; the appeal is meritorious in law from the above. Consequently; the appeal is hereby allowed by quashing the conviction entered by the trial Court and set aside the sentence met by the lower Court with orders as to immediate release of the appellant from prison cells forthwith unless he is otherwise lawful held. Order accordingly. Sgd: A.C. NYERERE JUDGE 29/ 04/2013 glivered in chambers this 29 day of April, 2013 in presence of bsence of Learned State Attorney who was duly notified. Sgd: A.C. NYERERE JUDGE 29/ 04/2013 I hereby certify this to be a true copy of the original. IJJSf RICT REGISTRAR AR - OV ^ I'I li