20070504 TZHC mTWARA

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IN THE HIGH COURT OF TANZANIA

ATMTWARA CRIMINAL APPEAL NO. 128 OF 2005 ORIGINAL LINDI D/COURT CR. CASE NO. 30/2005 OSWIN THOMAS @ NANGUKA - - - - - - - ~- - - - - - - - -APPEb-LANT ::: · .

VERSUS THE REPUBLIC - - - - - - - - - - - - - - -RESPONDENT Date of Last Order: 19/3/2007 Date of Judgment: 4/5/2007 JUD GEM-ENT SHANGALI, .J. . The appellant OSWIN S/O THOMAS NANGUKA was charged together with one SAIDI MUHIBU beforeJjndiDistrict Court with the offence of Robbery els 285 and 286 of the -Penal Code. After close of the Prosecution Case the trial District Magistrate was satisfieg that there was no case to answer-against the second accused SAIDI MUHIBUand-consequently acquitted him under section 230 of the Criminal · Procedure Act. On the other hand the trial District Magistrate was satisfied that there was a case to answer against the appellant. At the end of trial, the· . TriaTTJistrict Magistrate was equally satisfied with the prosecution evidence and consequently convicted the appellant and awarded him a sentence of fifteen years imprisonment. The Prosecution Case, which was-er:ectecLonib.e evidence of two witnesses avers that on 28/01/2005 at about 5.00 pm, PWI, Ester Ngombo who was working at Mission Petrol Station, Nyangao village was on her way to the -Roman Catholic Parish with TSh.196,350/= the proceeds from the sale of the 1 -- ... ' . day. That, on her way she was being escorted by PW2 Mzee FLORIAN, the Petrol Station Watchman. According to her evidence, while on her way she saw the appellant at the Bus stand and later the appellant followed her from

behind. That, when she reached at a huge tree she met a person who was holding a Panga. Suddenly that person started to invade and attack her with a Panga while assisted by other four bandits who managed to disappear with her money. She also stated that she was able to identify the robber who took the money to be one Simon who was not arrested. She further claimed to have identified the other robbers to be the appellant; one Isidory and Sosi. PWI claimed that when she was attacked and eventually robbed she shouted for help and PW2 responded to assist her. PW2 testified to the effect that on the material date and time he was escorting P\VI and that when they reached at a certain huge tree he heard PWI shouting and on his response he saw the robbers who were able to injure hirp. with a Panga. He claimed that he saw and identify the appellant who was holding a knife. In short that was the prosecution case. Before I proceed with the appellants defence it is pertinent to point out here that when PWI and PW2 adduced their evidence in Court the appellant was not present. According to the Court record the appellant was admitted on bail on 2/3/2005. When the-cas-e-was fixed for hearing date on 16/6/2005, the appellant failed to appear and the trial Court was satisfied that the appellant had jumped bail. His sureties were never summoned to show cause and instead the trial Court fixed

another hearing to be 23/6/2005 and decided to proceed;with the hearing in the absence of the appellant.under section 226 of the Criminal Procedurn Act. As a result no efforts whatsoever was made by the trial Court to find out-from the appellant's sureties why he failed to attend the Court. On 20/7/2005 when the trial Court was ready to pronounce its ruling on whether there was a case to answer, the appellant was brought before the court following his arrest at Dar es salaam by the Police. The appellants bail was cancelled and the trial Court proceeded to pronounce its ruling in which the second accused was acquitted for no case to answer and the appellant was called to make his defence. 2 I • In his sworn defence, the appellant categorically denied to have committed the alleged offence and claimed that on the material day he was either at home or at Nyangao main road with his buddies playing cards until 9 .00 pm when he surrendered to sleep in his banda. The appellant s;omplained that he was invaded and arrested by the Police in the midnight. The Police seached his banda and took him away. He stated that the Police questioned him about several people like Sosthenes, Isidory and Saidi Muhibu and that during interrogation the Police beat him up and locked him in for 3days at the Police Station. His defence was supported by DW2 Antony Martin who happened to be with him on the

material date. As I have pointed above, upon recording that prosecution evidence and defence version the trial Court opted to convict the appellant and sentenced him accordingly. The appellant was dissatisfied with the decision of the trial District · Court and has preferred_this appeal against both conviction and sentence. In his memorandum of appeal the appellant has mainly two grounds of appeal namely; whether there was sufficient prosecution evidence to prove the case to the required standard of proving beyond reasonable doubt and·whether the appellant was properly identified as one of the bandits who invaded and robbed PWI. One more important issue, I would like to venture is the proprietness of the procedure adopted by the trial District Court immediately after the arrest of the appellant when he jumped bail. During the hearing of this appeal, Mr. Hyera, Learned State Attorney who appeared for the Republic/Respondent refrained from supporting the decision of the trial District Court for three reasons, namely; One, the appellant was not properly identified because there was nowhere in the evidenc.e of PWI _and PW2 porporting to show how they identified him. The record of-proceedings is silent on any detail description of the appellant stated by the witnesses or the existence of any favourable conditions which anabled the witnesses to correctly identify the appellant; two,

the ovious contradictions in the testimonies of PWI and PW2; for instance PWI claimed that she was being escorted by PW2 but later she claimed that when she was attacked she shouted for help and PW2 responded to rescue her. Even PW2 claiamed that he heard the shouts when he reached at the big tree. Three; that the appellant 3 was not given on opportunity to cross-examine the prosecution witnesses after his arrest. On myside, I entirely agree with the Learned State Attorney. that the appellant was not properly identified to be one of the bandits who attacked PWI. PWI and PW2 claimed to have identified the appellant without giving any detail description or the manner of identification. The issue of proper identification has been well settled in the cases of JOSEPH SHAGEMBE Vs. R (1998) TLR 147 HC; IBRAHIM SONGORO Vs. R CR. APPEAL No. 298 OF 1993 - Mwz Registry (Unreported) and the famous case of W AZIRI AMAN! V R (1980) TLR 252. Furthermore, PWI and PW2 never said how exactly the appellant participated in the commission of the offence save for the fact that PWI claimed to have seen him at the bus stand and later marched behind her. There is no evidence to show that simply by taking the same route behind her, the appellant was purposely following_PWI with_malice. I am also in agreement with the Learned State Attorney that the testimonies of PWI and PW2 are full of contradictions

and inconsistences. In my opinion they were fumbling because either they were exaggerating their evidence or they were not telling the truth. Whatever way, their credibility has already been contaminated. Regarding to the procedure adopted by the trial District Court after disappearance and re-appearance of the appellant, I am certain that there was a misdirection which amounted to irregularity. In my view where the evidence against the accused has been .recorded in his absence and in pursuant to section 226 of the Criminal Procedur-e Act and thereafter the accused re-appears during the proceedings, then all proceedings and evidence recorded in his absence should be read over to the accused and he_should _be given his right to decide on whether to proceed with the case at that stage or to re-call the witnesses for cross-examination. That positionJs_more so where the accused has given reasonable explanations on his non-appearance. In the present case the appellant's bail was hurriedly cancelled under section 158 of the Criminal Procedure Act, but the evidence subsequently recorded was not read over to him nor his rights to recall the witnesses for cross-examination explained to him. That skip amount to a serious 4 irregularity. I have been wondering what was the basis of the appellants defence because he was not aware of what was said against him by his accusers before the trial

Court. The appellant was not even litsened when he pleaded with the trial Court that his absence was caused by his failure to return from Dar es salaam on time. It is on the basis of the foregoing that, I respectively side with the Learned State Attorney and the appellant that there was no sufficient prosecution evidence to warrant a conviction against the appellant. The conviction was simply hurried and unmerited in law. The appeal is therefore allowed, conviction and sentence imposed against the appellant is hereby set aside and the appellant is to be released from prison forthwith unless lawfully detained on some other reasons. It is so ordered. Deliveredtodate 4/5/2007 in the presence of Mr. Hyera Learned State Attorney for the Republic and the.appellant in person. 5