CRIMINAL APPEAL 59 OF 2022 SULEIMANI DAGO SWALEHE VS REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT TANGA (CORAM: MWAMBEGELE, J.A.. MASHAKA. J.A. And RUMANYIKA. J.A.^ CRIMINAL APPEAL NO. 59 OF 2022 SULEIMAN DAGO @ SW ALEHE.................................................. APPELLANT VERSUS REPUBLIC................................................................................. RESPONDENT (Appeal from the Judgment of the High Court of Tanzania, at Tanga) (Mkasimonqwa, J.^ dated 23rd day of September, 2021 in Criminal Appeal No. 48 of 2020 JUDGMENT OF THE COURT 22nd & 29th April, 2024 MWAMBEGELE, J.A.: This is a second appeal. It stems from the decision of the District Court of Tanga at Tanga before which the appellant, Suleiman Dago @ Swalehe, was charged with and convicted of the offence of attempted armed robbery contrary to the provisions of section 287B of the Penal Code, Cap. 16 of the Revised Edition, 2002. It was alleged in the particulars of the offence that on the 4th day of October, 2017 at Magomeni area near Jaje Primary School within the District, City and Region of Tanga, he attempted to steal the motorcycle with Registration No. MC 725 AQB make SANYA, the property of one Victoria Mganga Vincent and immediately before the attempt to steal it, he threatened one Lilian Vincent @ Mganga with a machete in order to obtain the said motorcycle. After a full trial, he was found guilty, convicted and sentenced to a prison term of fifteen years. The background facts giving rise to the case as established by the prosecution at the trial were that: at about 22:00 hours on the material date, the victim, Lilian Vincent (PW4), a university student, was riding a motorcycle described above back home. She resided at Masiwani area. The motorcycle belonged to her sister Victoria Mganga Vincent (PW5). At Magomeni area, in the vicinity of the residence of Salehe Mohamed (PW3), she was knocked down by another motorcycle ridden by a person who is not a party to this appeal on which the appellant was a passenger. While PW4 was lying down, the appellant drew a machete and ordered her to surrender her motorcycle. PW4 raised an alarm for help. Some people including PW3 showed up. They arrested the appellant on the spot. Shortly thereafter, they called the police who took him to the police station and later charged him with the offence the subject of this appeal. The appellant's defence at the trial was a somewhat different version of what transpired. According to him, what transpired is that he was aboard a bodaboda (a motorcycle for hire) which he had hired from 2 his place of work at Tanga Bus Stand to ferry him home. He resided at Masiwani area. At the scene of crime, there occurred an accident during which the motorcycle on which he was carried as a passenger hit PW4's motorcycle and the latter fell down with her motorcycle. The rider of the bodaboda escaped after the accident. PW4 cried for help saying she had been hit and the one who caused the accident ran away. People, including PW3, responded to the alarm raised by PW4 and started to manhandle him. Some were armed with machetes and clubs. They arrested him and, later, called the police who took him to the police station where a traffic case christened Criminal Case No. 167 of 2017 was preferred against him. That case was prosecuted but it was "dismissed". Later, Criminal Appeal No. 13 of 2019, the subject of this appeal, was preferred against him immediately after the acquittal in the traffic case. The trial court was satisfied that PW3 and PW4 were witnesses of truth whose testimonies were to the effect that the appellant was caught red handed at the locus in quo armed with a machete to perpetrate armed robbery but his acts fell short of completing the commission of the offence hence the charge of attempted armed robbery. Consequently, he was convicted as charged and sentenced as shown above. His first appeal to 3 the High Court against conviction and sentence was barren of fruit. Undeterred, he has come to this Court on second and final appeal. The appellant's appeal was premised on seven grounds of appeal but at the hearing, on the request of the learned Senior State Attorney which was, essentially, not resisted by the appellant, we allowed only three grounds to be argued given that the rest of the grounds were new, not comprising points of law and were not canvassed on first appeal in the High Court. Thus the remaining grounds on which the parties argued were; one, that the lower courts erred in law and facts to admit and proceed on the charge sheet which was filed extremely belatedly without any proper reason given; two, that the lower courts erred in law and facts to convict the appellant without considering anomalies in identification of the appellant and; three, that the lower courts erred in law and facts to accept the testimony of PW1 on confession of the appellant made in a cautioned statement without tendering the same during the trial. Before us, the appellant appeared in person, unrepresented. Ms. Sylvia Mitanto, learned Senior State Attorney and Ms. Petrida P. Muta, learned State Attorney, joined forces to represent the respondent Republic. When we invited the appellant to argue his appeal, he simply stood by his remaining grounds of appeal and asked the Republic to respond to them after which, need arising, he would make his rejoinder submissions. Ms. Mitanto resisted the appeal. She kick-started by laying bare the position that the respondent Republic supported the appellant's conviction and the ultimate sentence meted out to him. The gravamen of her arguments against the second ground of appeal, was that identification of the appellant was not at issue in the present case in that he was arrested at the scene of crime having been caught red handed in an attempt to commit the offence of armed robbery. Citing John Makuya v. Republic (Criminal Appeal No. 62 of 2022) [2022] TZCA 264 (12th May, 2022) TanzLII, she submitted that such circumstances did not make identification of the appellant necessary. After all, she went on, it was not in dispute that the appellant was arrested at the scene of crime. She thus urged us to dismiss this ground of appeal. Resisting the third ground of appeal, Ms. Mitanto submitted that the complaint on this ground was unfounded, for the trial court did not convict the appellant on the strength of the cautioned statement but on the strength of the testimonies of PW3, PW4 and PW5. The learned Senior State Attorney referred us to pp. 52 - 54 of the record of appeal where 5 the trial court considered the evidence of PW3, PW4 and PW5 in convicting the appellant as charged, not the testimony of G. 7899 DC John (PW1) who testified on the cautioned statement. She thus implored us to dismiss this ground as well. The first ground of appeal was argued last. The learned Senior State Attorney conceded that, indeed, the offence was committed on 4th October, 2017 but the appellant was arraigned on 23rd January, 2019. She ascribed the reason for the belated arraignment to the fact that the police had been investigating the case and searching for the rider of the motorcycle who had escaped immediately after the incident and efforts to apprehend him proved futile. She admitted also that the provisions of section 32 of the Criminal Procedure Act, Cap. 20 of the Laws of Tanzania, required that an accused person taken into custody without a warrant for an offence other than an offence punishable with death, be taken to court within twenty-four hours after he is so taken into custody. She added that the police could not comply with the section because they were still in search of the accomplice. Prompted, she conceded that the appellant was charged with and acquitted in Criminal Case No. 167 of 2017 prior to the case the subject of this appeal. She argued that this ground, like the other two, is without substance and beseeched us to dismiss it as well. 6 Having submitted as above, the learned Senior State Attorney implored us to dismiss the appeal for being devoid of merit. The appellant had very little to argue in rejoinder. He submitted that Criminal Case No. 167 of 2017 which was preferred against him immediately after the accident was a traffic case in which he was charged for causing the accident in question. That case was dismissed and he was set free but that, immediately thereafter, while within the court precincts, he was rearrested and charged with the offence of attempted robbery, from which the present appeal stems. He left other matters for decision in the wisdom of the Court but prayed to be released after allowing his appeal. We embark on the determination of the appeal by considering the grounds of the appeal in the approach taken by the learned Senior State Attorney. We agree with the learned Senior State Attorney that the circumstance of the case did not call for the identity of the appellant. It is clear in evidence, from the testimony of PW4 (the victim) and PW3 (the eyewitness), that the appellant was arrested on the spot and put under arrest. He was later handed over to the police who preferred the charges against him later. What identification did the appellant want? We are of 7 the view, like the learned Senior State Attorney, that identification of the appellant was not necessary in the circumstances. There is no dearth of authorities on the point. If we are called to cited any authority to reinforce the point, our decisions in John Makuya v. Republic (supra), Jibril Okash Ahmed v. Republic, Criminal Appeal No. 331 of 2017 [2021 TZCA 13 (11 February, 2021) TanzLII and Alex Mwashilindi & Another v. Republic (Criminal Appeal No. 626 of 2020) [2023] TZCA 18008 (15th December, 2023) TanzLII, immediately come to our mind. In Alex Mwashilindi (supra), for instance, we relied on our previous decision in Jibril Okash Ahmed (supra) to hold: "... where an accused person is chased from the scene o f crim e even in d ifficu lt conditions such as night w ithout losing sight o f him and is successfully arrested, that constitutes sufficient evidence that he is responsible fo r the com m ission o f the offence." In the case at hand, as observed above, the appellant was arrested on the spot. He was taken to the veranda of the house in the vicinity where there was electricity light. They did not lose sight of him. In the circumstances, he cannot be heard to complain that he was not properly identified. After all, he did not state so in his defence. Neither did he state so in his submissions on first appeal. Not even before us on second appeal. We think the appellant's complaint on this ground, given his defence at the trial and submissions on first appeal and before us, is but an afterthought. It is, we think, just a fanciful ground intended to achieve no useful purpose. We therefore wish to recap that where, like here, an accused person is arrested at the scene of crime red handed and the arresters do not lose track of him anyhow, that evidence, prima facie, is suggestive of the fact that he is the culprit. We thus reject the appellant's complaint in defence that he was not properly identified at the locus in quo. We now turn to consider the third ground of appeal; a complaint that the trial court and the first appellate court relied on the testimony of PW1 on the evidence in the cautioned statement which was not tendered in evidence. The determination of this ground will not detain us, for the complaint is not backed back evidence. As rightly put by the learned Senior State Attorney, as gleaned from the record of appeal at p. 52 through to 54 as well as p. 59 of the same record, the evidence considered and on which the appellant was convicted is that of PW2, PW3, PW4 and PW5, not that of PW1. We shall let the judgment of the trial court at p. 59 paint the picture: .. the accused having been arrested a t the scene o f the crim e a t the road side, he was taken to the 9 corridor o f the house which had electricity light. When PW2 and other police officers came to rescue him having received a phone ca ll from the citizens that a th ie f who was arrested by PW3 and other citizens was about to be kille d so there is no dispute that the accused was identified by PW2 PW3, PW 4 and PW 5 a t the scene o f the crim e." It would be appreciated that no reference was made to the cautioned statement in the foregoing quoted analysis. Neither was it made to the testimony of PW1. The appellant's complaint in this ground is therefore unfounded. We reject it. Next for consideration is the first ground of appeal, a complaint that the appellant was prosecuted for the offence quite belatedly. We haste the remark at this stage that if it were not for the doubts associated with this ground, having decided as we have done in respect of the second and third grounds of appeal, we would have rested in peace and proceeded to dismiss the appeal and perhaps would have sustained the sentence. The learned Senior State Attorney told the Court in her endeavour to justify the belated arraignment of the appellant in respect of the charge the subject of this appeal that the police were in search of the one who rode the motorcycle on which the appellant was aboard. We prompted her on the traffic charges against the appellant prior to the charge the 10 subject of this appeal and she admitted. We are not prepared to accept the reason by the learned Senior State Attorney why she was charged after two years, first, it is a statement from the bar which is not acceptable and, secondly, we find plausible the appellant's episode that what actually transpired was not attempted armed robbery but an accident. We also find plausible that the police were called to the scene of crime to arrest him because of the accident and prosecuted unsuccessfully the traffic charges. We also find plausible that the appellant was arrested within the court precincts immediately after he was released of the traffic charge. To be precise, given the circumstances of the case, we are doubtful if at all what transpired was not an accident. Why he was prosecuted for a traffic offence and released only to be arrested a short while thereafter is anybody's guess. But at least we are more than certain that it is elementary and indeed a cardinal principle of law that in criminal law doubts are resolved in favour of an accused person, however slight they may be. This is the course of action we, with respect, are prepared to take in the case at hand. We wonder why, in the first place, these lingering doubts were not resolved in favour of the appellant by the two courts below. We are also doubtful if PW3 and PW4 who were the star witnesses at the trial were witnesses of truth. If anything, we doubt if their evidence was impeccable. For the avoidance of doubt, we are aware of the overarching principle of law that credibility, just like demeanour, of a witness is within the empire of the trial court - see: Shabani Daudi v. Republic, Criminal Appeal No. 28 of 2001 (unreported), Rashidi Shabani v. Republic (Criminal Appeal No. 310 of 2015) [2016] T7CA 633 (29th July, 2016) TanzLII, Abdallah Mussa Mollel @ Banjoo v. Republic (Criminal Appeal No. 31 of 2008) [2010] TZCA 17 (19th February, 2010) TanzLII and Francis Paul v. Republic (Criminal Appeal No. 251 of 2017) [2021] TZCA 12 (11th February, 2021) TanzLII. However, as regards credibility, the principle is not without exception. One of the exceptions is that an appellate court may interfere with such a finding if it is satisfied that a principle of law has been violated leading to miscarriage of justice. Thus, the hallmark of these decisions was summarized in Rashidi Shabani (supra) thus: "But apart from demeanour, the credibility o f w itnesses can also be determ ined in other ways. One , when assessing the coherence o f the testim ony o f such witness. Two, when the testim ony o f that w itness is considered in relation to the evidence o f other witnesses, including that 12 o f the accused person. In those ways, the credibility o f witnesses may be determ ined even by a second appellate court when exam ining the findings o f the first appellate court." What we discern from the above authorities is that credibility of witnesses is the monopoly of a trial court but only in so far as demeanour is concerned. An appellate court may determine credibility of witnesses when assessing the coherence of the testimony of witnesses as well as when the testimony of a witness is weighed against the testimonies of other witnesses, including the accused person's. Thus guided by the foregoing authorities, we may determine the credibility of the two star witnesses in the appeal before us by assessing the coherence of their testimonies and when their evidence is considered in relation to the testimonies of other witnesses including the appellant's. In the matter before us, the manner in which the victim, one of the star witnesses, narrated what transpired at the scene of crime, is, to say the least, not coherent. While she testified in her evidence-in-chief that the appellant beat her using the sides of the machete, she made a paradigm shift in cross-examination by the appellant that she sustained injuries caused by the appellant hacking her with the machete. Despite the incoherence in her testimony, when her evidence is considered in 13 relation to the testimony of PW3; it becomes marred with suspicion. PW3, categorically testified that the victim sustained injuries but those injuries were not inflicted by the appellant but by her "falling down" with the motorcycle. Likewise, juxtaposing her testimony with that of the appellant, more elements of doubts unveil. We have already observed above that we find plausible the appellant's episode that what actually transpired was an accident rather than an attempted armed robbery. We hold without an iota of hesitancy that it is doubtful if these star witnesses were credible and reliable. This diminished the prosecution's case. In our considered view, it is not of little significance to observe, as we do, that we have find the appellant's episode in defence greatly plausible. We proceed to demonstrate why we so think. The appellant made his line of defence open from the very outset. He did not wait to reveal it in defence testimony at the trial. The accident episode comes out clearly in his cross-examination of witnesses for the prosecution and later in defence at the trial. He has been consistent all along; at the trial, before the first appellate court and before us on second appeal that the whole incident was about an accident caused by a person who ran away before he could be apprehended. The consistency suggests that the appellant was telling but the truth. That is the standpoint we have taken 14 in a number of our previous decisions - see: Hatibu Gandhi v. Republic [1996] T.L.R. 12, John Madata v. Republic (Criminal Appeal No. 453 of 2017) [2020] TZCA 154 (2 April 2020) TanzLII, DPP v. Ngusa Keleja @ Mtangi and Another (Criminal Appeal No. 276 of 2017) [2020] TZCA 288 (11th June, 2020) and Chora Samson Kiberiti v. Republic (Criminal Appeal 516 of 2019) [2021] TZCA 628 (1 November 2021) TanzLII. In John Madata (supra), for instance, we held: "It is common knowledge that although the accused has no duty to prove his innocence, he is expected to make the theme o f h is defence known so as to make the tria l fa ir even to the prosecution, and we think this theme m ay be deduced from the lin e o f cross exam inations The appellant's theme of his defence, as already alluded to above, was made known from the outset through cross-examination of witnesses for the prosecution. This can be deduced from the answers provided by the star witnesses when cross-examined by him. PW4, for instance, is recorded at p. 25 of the record of appeal, as saying: "That was not an accident It was an intention o f you to rob m y m otorcycle. " Likewise, PW3, at p. 22 of the record of appeal, when cross- examined by the appellant, is recorded as answering: 7 found you holding a panga and you had raised threatening the victim who was down holding a m otorcycle which was found to have fallen down. The said lady was not injured with a panga but she had injuries in her hand which was caused by her fallin g down" The foregoing answers by the star witnesses, in our view, established that the appellant made his case known in the cross- examination of the star witnesses. He did so in his defence as well. The same was the case before the first appellate court and before us on this second appeal. In the premises, we are convinced that the charge the subject of this appeal was but an afterthought bent to persecute the appellant for undisclosed reasons. This case was not proved beyond reasonable doubt. We wish to echo, as we did in Samson Kitundu v. Republic, Criminal Appeal No. 195 of 2004 (unreported), what was stated by Lord Reid in S (an infant) v. Manchester City Recorder and Others [1969] 3 All E.R. 1230: "The desire o f any court m ust be to ensure so far as possible that only those are punished who are in fact guilty. The duty o f a court to dear the innocent m ust be equal or superior in im portance to its duty to convict and punish the g u ilty ...." 16 While subscribing to the above passage as holding true in our jurisdiction as well, we entertain grave doubts that the prosecution could have found the appellant at the scene of crime in the manner testified to by the prosecution witnesses only to prosecute him with a traffic offence. No plausible reason has been given why and to make matters worse, why prosecute him of the offence the subject of this appeal some two years after the commission of the offence? The delay of the prosecution not to charge with attempted armed robbery the appellant who was arrested at the scene of crime allegedly red handed armed with a machete in the presence of the injured victim from the very outset should put a prudent court to enquiry. With unfeigned respect, we do not rule out the possibility that the prosecution was not bent to prosecute the appellant but to persecute him. If we may be excused to repeat; a repetition we find necessary, that our criminal jurisprudence demands that every doubt must be resolved in favour of an accused person. This is embodied in the Latin maxim in dubio pro reo which expresses the judicial principle that in case of doubt the decision must be in favour of the accused. The principle augments the presumption of innocence of an accused person, referred to in the Latin expression e i incum bit probatio qui dicit, non qui negat This case is no exception. That is why we think justice will smile if we 17 entertain doubts in favour of the appellant and acquit him, as we do, of the charge of attempted armed robbery levelled against him. It is for the reasons we have endeavoured to assign hereinabove that we allow this appeal. We quash the conviction of the appellant and set aside the sentence of fifteen years meted out to him. Consequently, we order his immediate release from prison unless held there for some other lawful cause. DATED at TANGA this 27th day of April, 2024. J. C. M. MWAMBEGELE JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL The Judgment delivered this 29th day of April, 2024 in the presence of the Appellant in person, and Ms. Sylivia Mitanto, learned Senior State Attorney for the Respondent, is hereby certified as a true copy of the original. G DEPUTY REGISTRAR COURT OF APPEAL 18