In Criminal Case No. 405 of 2004, at the Resident Magistrate s. Court of Dar es Salaam at Kisutu, the appellant and three others

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1 IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM 1 (CORAM: MUNUO, J.A., MBAROUK, J.A., And ORIYO, J.A.) CRIMINAL APPEAL NO. 259 OF 2008 KARIM RAMADHANI. APPELLANT VERSUS THE REPUBLIC... RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Dar es Salaam) ( Makaramba, J. ) dated the 11 th day of August, 2008 in HC. Criminal Appeal No. 16 of JUDGMENT OF THE COURT 18 May, & 2 June, 2011 MBAROUK, J.A.: In Criminal Case No. 405 of 2004, at the Resident Magistrate s Court of Dar es Salaam at Kisutu, the appellant and three others were charged with the offence of armed robbery contrary to sections 285, 286 and 287A of the Penal Code Cap. 16 as amended by Act No. 4 of The appellant was the only one who was convicted and hence sentenced to thirty (30) years imprisonment. The facts briefly stated are that on at 6.45 evening time Cheza Korneli Tamba (PW1) was at Mwenge, Mlalakuwa near

2 2 the University of Dar es Salaam guarding a shoes godown owned by Deo Mwacha (PW4). While inside the godown premises, he heard a door knocked. He saw the appellant and Mussa s/o Omary (not in this appeal) as the ones who knocked the door. According to PW1, the appellant asked for some water to drink. Being familiar to them, he opened the door and gave the appellant a glass of water he had asked for. After finishing drinking the water, PW1 returned the glass inside and on his way back, the appellant grabbed his neck and threatened to injure him by pointing a pistol and knife. He was then taken to the godown and forced to lie down with his hands, legs and mouth tied. Thereafter PW1 said, the appellant and other bandits entered the godown compound, took boxes containing shoes and left. After that operation which took half an hour, PW1 draged himself outside asking for help to be untied which he managed to get. He also managed to be helped a phone and informed his boss (PW4) about the ordeal. PW4 arrived at the crime scene thereafter and reported the matter at Kijitonyama Police Station. The appellant was then arrested and accordingly charged.

3 3 In his defence, the appellant denied any involvement of the allegations against him. He said, on while he was at his business place cooking and selling chips at Manzese Kagera at 1.30 p.m he was arrested by two Police Officers and sent at Mabatini Police Post where he was interviewed, locked up and then charged. As stated earlier, the trial court found the appellant guilty and accordingly sentenced him to thirty years imprisonment. Dissatisfied with the conviction and sentence, the appellant appealed to the High Court (Makaramba, J.) where his appeal was dismissed and his sentence reduced from thirty (30) years to fifteen (15) years imprisonment. Still aggrieved, the appellant preferred this second appeal. In this appeal, the appellant lodged a memorandum of appeal containing the following four grounds:- 1. That both, the trial court and the High Court erred in law and fact by convicting the appellant relying on the doubtful

4 identification evidence of PW1 who was alone and who never mentioned him at the earliest possible time That, both the trial court and the High Court erred in law and fact basing their conviction on a cautioned statement without determining the issue of voluntariness and delay in taking it. 3. That, the trial magistrate and the High Court Judge erred in law and fact having convicted the appellant relying on the exhibits at the time when the appellant was not involved in the search process. 4. That, the trial magistrate and the High Court Judge erred in law and fact when they convicted the appellant without his case being proved beyond reasonable doubt. At the hearing of the appeal, the appellant appeared in person unrepresented, whereas Mr. Peter Njike, learned State Attorney, represented the respondent Republic.

5 5 The appellant had nothing to add apart from what he has stated in his grounds of appeal. On his part, the learned State Attorney argued in support of the conviction and sentence. As on the first ground of appeal concerning identification, the learned State Attorney submitted that, the incident occurred at 6.45 p.m when there was still sun light. Apart from that, PW1 knew the appellant before and had good time of nearly half an hour to sufficiently identify him during the ordeal at the crime scene. The learned State Attorney further contended that, the trial court found PW1 as a credible witness and urged us to do the same. He added that, PW1 s evidence was corroborated by PW2, PW3 and PW4 (his employer), whereas the appellant did not oppose those facts. On our part, we fully agree with Mr. Njike that PW1 was a credible witness taking into account the flow of events concerning the ordeal at the crime scene. It is our finding that, the evidence of identification of the appellant on record is sufficient to meet the guiding principles of visual identification laid down in the case of Waziri Amani V.R [1980] TLR 250 which include:

6 6 the time the witness had the accused under observation; the distance at which he observed him; the conditions in which such observation occurred for instance, whether it was day or night time, whether there was good or proper lighting at the scene; and further whether the witness knew or had seen the accused before or not. In the instant case, the facts on record clearly show how all those guiding principles in Waziri Amani (supra) were met. In addition to that, we agree with the learned State Attorney that, even if PW1 was the only person at the crime scene who testified on what actually happened, his evidence was corroborated by PW2, PW3 and PW4. In the circumstances, we find the first ground of appeal with no merit. As to the second ground of appeal concerning the voluntariness of the appellant s cautioned statement and the delay in taking it, the

7 7 learned State Attorney submitted that, there was no doubt that the cautioned statement was voluntarily taken and rightly admitted by the trial court. As to the issue of delay in taking the cautioned statement, the learned State Attorney was of the view that the delay was due to a fact that a big consignment of stolen goods was involved, hence investigation was still going on. For that reason, he urged us to find the second ground of appeal with no merit. We are of the considered view that, the first appellate court tried at length to explain on the issue of voluntariness of the appellant s cautioned statement and its delay. As the record shows at page 8 of the judgment, where the High Court Judge stated as follows:- In the circumstances of this case and given the clear confession of the 1 st accused in his cautioned statement explaining in great detail how the looting took place, a trial within trial would have been highly artificial and the learned trial magistrate rightly

8 admitted in evidence the cautioned 8 statement of the 1 st accused. At the trial court the prosecution while offering explanation as to why the cautioned statement was taken almost four days after the arrest of the 1 st accused, stated that it was due to the fact that a big consignment of stolen goods was involved hence investigation was still on going. This explanation in my view was the most plausible in the circumstances since as per subsection (2) of Section 58 of the Criminal Procedure Act a police officer interviewing the accused where the accused confesses to an offence, the Police Officer is to make or cause to be made either while the interview is going on or as soon as practicable after completing the interview.

9 9 We fully agree with the learned judge s analysis of the evidence. In the event, we are of the considered view that, the second ground of appeal has no merit too. As to the third ground on whether it was proper to conduct a search of exhibits at Zilipendwa Guest House room No. 6 without the presence of the appellant, the learned State Attorney submitted that it was not proper to conduct a search in the absence of the appellant. Thereafter, Mr. Njike conceded to the third ground of appeal, however he noted that, even if the search was not conducted properly, but that does not raise any doubt in proving the case against the appellant. We are of the considered opinion that, conducting a search of stolen goods in the absence of a suspect is against the rules of natural justice. This is for the reason that, evil practices such as planting of the stolen goods in the area of a search may arise or given a room. We think, justice requires that when a search is conducted, it is proper and necessary for a suspect to be present. This may be equated with the hearing of a case in the absence of an

10 10 accused person. In the instant case, the record shows that, the appellant was absent when the search was conducted at the place where the stolen goods were found. For that reason, we agree with the appellant that the search of the stolen goods was not properly conducted. However, on the other hand, we agree with the learned State Attorney that, even if that piece of evidence is discounted, sufficient evidence remains to prove the offence against the appellant. At this juncture, we deem it pertinent to examine the issue of whether we can fault the learned first appellate judge when he reduced the sentence from thirty to fifteen years imprisonment. The record shows, that, the first appellate judge substituted the offence of armed robbery to a lesser offence of robbery with violence basing his argument on the testimony of PW1 and confession of the appellant in his cautioned statement. With respect, we think the record is very clear that PW1 stated that the appellant pointed a pistol and knife to him. The trial court who was in a better position to assess the credibility of PW1 and found him credible and believed him. For that reason, we fault the first appellate judge on the issue of

11 11 the reduction of sentence, because the evidence clearly shows that a weapon was used when the offence of armed robbery was committed. In the event, and for the foregoing reasons, we find the appeal devoid of merit. We therefore dismiss the appeal, and restore the thirty (30) years imprisonment sentence imposed to the appellant by the trial court. DATED at DAR ES SALAAM this 27 th day of May, E.N. MUNUO JUSTICE OF APPEAL M.S. MBAROUK JUSTICE OF APPEAL K.K. ORIYO JUSTICE OF APPEAL I certify that this is a true copy of the original. (J.S. Mgetta) DEPUTY REGISTRAR COURT OF APPEAL