20181228 TZHC Mwanza

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IN THE HIGH COURT OF TANZANIA

IN THE DISTRICT REGISTRY

AT MWANZA . HIGH COUt:tT CRIMINAL APPEAL NO. -155, 156, 157, 158, 159, 160 AND 161 OF 2017 (Original Criminal Case No. 06 ·of 2016 of the District Court of Chato at Chato) 1. MAG·ERE MARWA @ CHACHA · 2. JOHN SIBORA SENG'ENGE, 3. DOTTO ISSA, 4. TIMOTH KASOBI, ~■ a ■■■ S •• ■■ a~ ■ •• W 1111 a ■ ••••• APPELLANTS 5. CHARLES MASALA, 6. MAPAMBANO KAKUMBO 7. KULWA LEONIDAS

VERSUS THE REPUBLIC ............................ 11••······················· RESPONDENT

JUDGMENT . 27 /08 & 28/12/2018 RUMANYIKA, J.: Appeal Nos. 155, 156, 157, 158, 159, 160 and 161 of 2017 (pursuant to my reasons and order _of 27/09/2018 cons·olidated and as such determined), are _against the 29/11/2016 conviction and· a 30 years custodial sentences. The appellants are, for ease of reference; Magere Marwa, John Sibora Seng'enge,. Dotto Issa, Ti moth Kasobi, Charles Masala, Mapambano Kakumbo and Kulw.a Leonidas· (the 1 st , 2 nd 3rd ' ' '4 th 5th 6th ' th and 7 appellants) respectively. They appeared in person. 1 However, when the appeals were called on for hearing on () 27/09/2018, Ms. Gisela Alex learned State Attorney for the respondent - Republic, but for some reasons readily supported the 6th and 7th appel!~nts 1 appeals. I allowed the appeals, quashed conviction, set aside sentence, . . acquitted and set them free forthwith. I reserved reasons. I will shortly hereinafter give some. With respect to all, the common seven (7) grounds of appeal revolve around four ( 4) points. To be rephrased as hereunder:- l. That the learned trial Resident Magistrate erred in law and fact not . holding that appellants were not properly identified.

2. That the learned trial Resident Magistrate improperly evaluated the . evidence.

3. That the learned trial Resident Magistrate admitted the appellant's cautioned statements but improperly.

4. That the learned trial ~esident Magistrate improperly invoked the doctrine of recent possession. Ms. Gisela Alex learned State Attorney as said only, supported appeals of the . 6th and ih appellants. Much as were not touched by evidence materially. I pro_mised, with respect to the two, to give reasons for the 27/09/2018 acquittal orders. Not only the victim generally identified them (no· description made) but also, she did not mention name of a person to whom at the earliest possible opportunity named the two appellants (if at all were properly identified). Much as mandatorily the· 2 l .. implicating evidence by co-qccused as matter of principle, required, but I there was no single piece of corroborating evidence. It is trite law that evidence by co-accused founds conviction but cautiously. I found nothing additional upon which to convict the 6th and 7th appellants. It is -for this . . reasons that I allowed appeal Nos. 160 and 161 of 2018. Now back to the remaining 5 appeals: Ms. Gisela Alex learned State Attorney submitted that a·_s were now having super, but wi~hout aid of electric lights, pwl and pw2 credibly and reliably identified appellants armed. Having stormed in and robbed them some items and cash ( crite_ria of the famous case of· Waziri Amani Vs. Rep. (1980) TLR ·250). That is why the victims named them to policemen and no identification parade was

mounted. Secondly, that criteria of the doctrine of recent possession were all . met: One; although no certificate of seizure was in court. produced, the property was fo~nd in possession of the 1st appellant. Two; the property belonged to the complainant (though no description was made, no cash sale receipt or something was produced). Three; the property· was recently stolen ( case of AlhaJi Ayoub Msumari& · Others Vs. Rep., Criminal Appeal No. 136 of 2009 (CA) unreported. That. with cautioned statements of the· 1st, 3rd and 4 th appellants, the rest were implicated and arrested (see pw8' evidence). Also Exhibit PE2 3 j and PE4 not objected to. That accused who confesses to the charges was a () best and reliable witness ( case of Abdallah & 2 Others Vs. Rep., Criminal Appeal No. 384 of 2008 (CA) - unreported. Questioned for clarification by court, the learned State Attorney - submitted that indeed no evidence from Vodacom Company was given to substantiate that indeed the mobile number belonged to none other the 2nd appellant. That although the 1st accusec;:J was arrested on 30/12/2015, he was arraigned in court on 06/01/2016. · Very briefly, the evidence runs thus:- - PWl Leah Said stated. that as was, at the. material time just at h.ome, the appellants stormed in armed with machetes and demanded money. That she surrendered cash. Then also, appellants took with them a radio and

a video deck. That by aid of electric lights she identified all. That later on ·she identified the TV screen at the police station. PW2 Veronica Tanesco stated t_hat as was, at the material time with members of the household having super, the appellants just broke into and robbed them. · PW3 Ernest Vicent, stated that he knew the appellants before. That from his home, he learnt about the 12/12/2015 incident (his home broken into and robbed). Only that· on 31/12/2015 he identified his TV at police station. PW4 G. 8334 D/C. Muhi_dini stated that with regard to the scene, but having been duly assigned, he _recorded. a cautioned statement of the - 4- I t I (1). 3rdappellant. Whereby the latter impiicated fellows. That eventually the 1st accused kept the items with him. PWS G. 8336 D/C Said stated that he interrogated the 3rd appellant (who also implicated and named fellows (copy of the cautioned statement- . . Exhibit PE3). PW6 F. 7817 Mhando stated that for this case he recorded the 1st accused's cautioned statement on _30/12/2015. That the latter· implicated fellows (copy -Exhibit PE4). PEW? A/Insp. William Mbona stated that with respect to the incident ,he interrogated and recorded the 5th appellant's· ~autioned statement on 02/01/2016 at police station. Whereby he implicated fellows (Exhibit PES). PW8 Inspector Maro Kenyako of anti-robbery unit - ~CO's Office Geita stated that

through mobile number 0766 356108, .the 2 nd accused threatened i.e. with menaces demanded money from a different victim of robbery and rape. That the Vodacom Bukombe people identified the 2 nd appellant of Runzewe the subscriber and arrested him on 29/12/2016. That he interrogated him, the latter confessed and also implicated fellows. Then led to arresting the 1st and 3rd appellants and recovered the property in ·issue. That the two also named and implicated follows. So were the 4 th and 6th appellants arrested. · Then in common appellants basically denied the charges and liability. In fact they stated when exactly each one of them yvas, with respectto the case arrested. That the policemen interrogated them but denied all. Yet were arraigned ·in court. That is all. . 5 The central issues are whether appellants were properly identified by pwl and pw2 at the material 20:30hrs and whether their cautioned statements were properly recorded. The victim (pwl) may have, at n~ght been invaded by appellants and by aid of electric lights identified them, but not properly. I am saying so because it was not stated as to whom, at the possible and earliest opportunity she named them. Until at a later stage to policemen. The victim may have hot known the culprits before y~s! But now in absence of . . a subsequent identification parade out of which o"ne may have identified at least any one of

them, it cannot be said that appellants were properly identified. Ground one of appeal is allowed. Secondly, through the said mobile No. 0766 356108 the 2nd appellant may have been easily tracked and traceq, then if at all named and implicated the fellows yes! . But in absence of the company's evidence (inclusive of copy of a print out) that indeed the mobile num_ber belonged to non-other than· the 2nd appellant, ·evidence remained, but merely .unproved allegations. Leave alone, as the learned State Attorney conceded, that there was, with respect to the recovered items, ·no copy of a certificate of seizure be it against the 1st appellant or anybody else. The evidence therefore was improperly evaluated and analyzed. Grounds 2 and 4 of appear succeed. Lastly, taking into account of all the aforesaid, it cannot be said that the appellants' cautioned statem~nts hold water any further. Ground 3 of · the appeal also succeeds. 6 •.t In upshot, the conviction and sentence are quashed and set aside 0 respectively. The five (5) appeals are hereby allowed. Unless were legally held further, appellant Nos. 1, 2, 3, 4 and 5 also be released forthwith from prison. Ordered accordingly. Right of appeal explained. S~ ........-.,....... uY1-.-YIKA -25/12/2018 ~~--~ ~~--:~ O.H. KINGWELE DR 28/12/2018