Kulwa Athumani @ Mpunguti v. Republic, Cr app no 29 of 2005 (armed robbery)

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

(CORAM:      MUNUO, J.A., NSEKELA, J.A. And KILEO, J.A.

CRIMINAL APPEAL NO. 29 OF 2005

1. KULWA ATHUMANI @ MPUNGUTI

2. HAMISI JUMA SHOKA                                 ….. APPELLANTS                

3. HARUNA HASSANI @ KICHWA                     

4. RAMADHANI SALUM @ BABU MSENDA

VERSUS

THE REPUBLIC ……………………………………..… RESPONDENT

(Appeal from the Decision of the High Court of Tanzania

 at Dar es Salaam)

(Mlay, J.)

dated the 19^th day of August, 2004

in

HC Criminal Appeal No. 165 of 2003

--------------

JUDGMENT OF THE COURT

8 October & 28 December, 2007

NSEKELA, J.A.:

        This is a second appeal.  The four appellants, Kulwa s/o Athumani @ Mpunguti; Hamisi s/o Juma Shoka; Haruna s/o Hassani O. Kichwa; and Ramadhani Salum @ Babu Msenda were the first, second, third and fourth appellants respectively in High Court Criminal Appeal No. 165 of 2003.  The fifth appellant was one Riziki s/o Mkwamvi Magambo @ Kimaro whose appeal was allowed and the respondent Republic did not prefer a cross-appeal.  The appeal originated from the District Court at Temeke where the appellants were charged with and convicted for the offence of armed robbery contrary to sections 285 and 286 of the Penal Code and each was sentenced to thirty years imprisonment.  They unsuccessfully appealed to the High Court, hence this second appeal.

        The appellants filed a joint six-point memorandum of appeal.  The grounds of appeal revolved around PW1’s identification of the appellants at Mbagala, the alleged scene of the robbery; the admission of repudiated/retracted caution statements recorded by PW5 C.7748 D/Sgt. Elbariki and PW6 D.2966 D/Sgt. Adam and lastly the probative value of the said caution statements.

        The evidence on which the prosecution relied, apart from the caution statements was, in brief, as follows:  On the 19.9.2002 at about 5.30 pm PW1, one John Alerion, a taxi driver was hired by the first and second appellants.  The motor vehicle belonged to PW3, Selemani s/o Ramadhani @ Maftaha.  These appellants requested PW1 to stop on the way to their destination and he obliged whereupon two other people apparently with guns boarded the taxi-cab.  Somehow, PW1 managed to escape and immediately reported the incident to the police.  On the same evening at about 6.00 pm PW4, Paulo s/o Thomas, a watchman at Friends Corner Hotel, saw a motor-vehicle with registration No. TZQ4862 being driven by one Riziki s/o Mkwamvi (the fifth appellant in the High Court) together with three other passengers being parked at the hotel.  PW4 requested Riziki Mkwamvi to register the vehicle but he declined to do so and left.  PW4 testified that he knew Riziki since he was a frequent visitor at the hotel.  PW4 however noticed that there was another different number on the windscreen, TZR 5046.  He became suspicious and reported the matter to the police.  In response, PW2, Inspector Abdalla came to the hotel with other colleagues.  PW2 and his team awaited in ambush until the 12.9.2007 at 7.00 am when Riziki Mkwamvi reappeared at the hotel with two other persons to retrieve the car.  The three were then arrested while inside the parked motor vehicle at Friends Corner Hotel.

        The appellants who appeared in person and unrepresented, adopted their joint memorandum of appeal and had little to add by way of elaboration.  Their main complaint was to the effect that there was no other independent evidence to warrant their convictions.  They submitted that the caution statements had been involuntarily obtained.

        Ms Christina Maganga, learned State Attorney, at the outset, supported the appellants’ convictions and sentences meted out to them.  She was however quick to point out that PW1’s evidence on their identification was insufficient to convict the appellants.  The learned State Attorney relied heavily on their caution statements exhibits P2, P3 and P4.  In addition she relied on the doctrine of recent possession in view of the testimony of PW2 and PW4 on the circumstances under which the first appellant was arrested together with Riziki Mkwamvi.

        The learned judge on first appeal in his judgment stated in part as follows –

“Having given due consideration to the evidence, the judgment of the trial Magistrate and the four grounds of appeal, I am satisfied that the 1^st, 2^nd, 3^rd and 4^th appellants were, on the evidence adduced by the prosecution, properly convicted of the offence as charged.  The evidence narrated by PW1 victim of the robbery tallied in every respect, with the cautioned statements of 1^st, 2^nd and 4^th appellants which were produced as exhibit P4, P2 and P3 respectively.”

        The evidence on which the appellants were convicted apart from the evidence of caution statements was essentially based on the evidence of identification by PW1, the taxi-driver and victim of the robbery.  There is no evidence on the record as to how PW1 was able to identify the bandits who had hired him.  Admittedly, it was during day time and the incident apparently lasted about five to six minutes.  In the case of Abdulla Wendo and Another v R (1953) 20 EACA 166 the then Eastern Africa Court of Appeal stated that there is always the need for testing with the greatest care the evidence of a single witness respecting identification.  The key identifying witness, PW1, apart from the dock identification he purported to make, during the trial, did not advert to the guidelines enunciated by this Court in Waziri Amani v R [1980] TLR 250 at page 252.  PW1, the driver and victim of the robbery was unable to describe any of the appellants and under what circumstances.  His evidence did not inspire confidence.

        We now come to the caution statements recorded by PW5 and PW6.  PW5 recorded the caution statements of the second and fourth appellants which amounted to confessions in terms of section 27 (1) of the Evidence Act Cap. 6 RE 2002.  Two issues arise from these caution statements.  First, Mr. Kifunda, learned advocate for the two appellants objected to their being admitted in evidence because he claimed they had been obtained involuntarily.  The second issue relates to the probative value of the confessions in terms of section 33 of the Evidence Act.  We start with the first issue.  Although the trial was conducted in a subordinate court, once Mr. Kifunda had raised an objection as regards the voluntariness of those statements, the trial magistrate was enjoined to conduct an enquiry to establish the voluntariness or otherwise of the caution statements.  This Court in Criminal Appeal No. 57 of 2002 Emmanuel Joseph @ Gigi Marwa Mwita v R (unreported) stated as follows:-

“unlike the practice applicable in the High Court, where a trial within a trial is held in order to establish the voluntariness of a disputed statement in the subordinate courts, no such practice is applicable.  In that case, an enquiry on the voluntariness or otherwise of the statement can be ascertained from the evidence on the record and what the trial magistrate did at the trial.”

        It is evident on the record that Mr. Kifunda challenged the statements in question and therefore an enquiry into their voluntariness should have been made and be reflected on the record.  There was no such enquiry conducted.  Therefore once these caution statements are discounted, as they should be, then there is no evidence to link the second and fourth appellants to the robbery.

        The second issue with these confessional caution statements is their probative value in terms of section 33 of the Evidence Act which provides –

“33 (1)  When two or more persons are being tried jointly for the same offence or for different offences arising out of the same transaction, and a confession of the offence or offences charged made by one of those persons affecting himself and some other of those persons is proved, the court may take that confession into consideration against that other person.

(2) Notwithstanding subsection (1), a conviction of an accused person shall not be based solely on a confession by a co-accused.”

        The caution statements exhibits P2; P3 and P4 were, as stated before, confessions.  Individually, the appellants admitted in terms all the facts which constitute the offence of robbery, the circumstances under which they took possession of the taxi from PW1 at Tandika.  We then have to decide the extent to which those statements could be taken into account against each appellant implicated therein.  We have already found that there is no evidence to link the first and fourth appellants to the robbery.  What about the third appellant?  The caution statement of the first appellant was recorded by PW6 and was admitted in evidence without objection, exhibit P4.  The third appellant was implicated in this caution statement.  In the Indian case of Kashmira Singh v The State of Madhya Pradesh AIR 1952 SC 159 at page 160, the court had this to say in connection with section 30 of the Indian Evidence Act, which is in identical terms with our section 33 of the Evidence Act –

“The proper way to approach a case of this kind is, first to marshall the evidence against the accused excluding the confession altogether from consideration and see whether if it is believed a conviction could safely be based on it.  If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid.  But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction.  In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence and then fortify himself in believing what without the aid of the confession he would not be prepared to accept.”

        We have amply demonstrated that PW1’s evidence of identification cannot sustain the convictions of the appellants.  A confession of a co-accused can only be used to lend assurance to other independent evidence, sufficient for sustaining a conviction.  As far as the second, third and fourth appellants are concerned, there is no independent evidence establishing the guilt of these appellants.

        However, the evidence of PW1, PW2 and PW4, was in our view, sufficient to convict the first appellant.   PW1, the hired taxi-driver and victim of the robbery narrated how he was robbed by the bandits whom he failed to describe and identify.  We have already discussed this aspect of the evidence.  Soon after the robbery PW1 reported the incident at Tandika Police post as to what had happened to him.  The motor vehicle belonged to PW3, Seleman s/o Ramadhani @ Maftaha.  Apparently on the same evening, the stolen motor vehicle was driven to Friends Corner Hotel.  PW4, a watchman at the hotel, noticing the discrepancy on the registration numbers, TZQ 4862 and TZR 5046 reported the matter to the police and PW2 and his team lay in ambush.  On the 12.9.2002 at about 7.00 am three people appeared and entered into the said motor-vehicle.  They were instantly arrested on the spot.  The first appellant was one of those arrested including Riziki Mkwamvi, the fifth appellant in the High Court.  They were retrieving the motor-vehicle from Friends Corner Hotel.

        The question for decision is, is this possession of the stolen motor-vehicle on the 12.9.2002 sufficient to sustain a conclusion that the first appellant participated in the robbery on the 11.9.2002?  In the case of R v Loughlin 35 Cr App. R 69, the Lord Chief Justice of England had this to say at page 71 –

“If it is proved that premises have been broken into, and that certain property has been stolen from the premises, and that very shortly afterwards, a man is found in possession of that property, that is certainly evidence from which the jury can infer that he is the housebreaker or shop-breaker and; if he is, it is inconsistent to find him guilty of receiving, because a man cannot receive from himself.”

        This is the doctrine of recent possession.  With respect, the circumstances under which the first appellant was arrested neatly fit in the principle enunciated above.  The first appellant participated in the robbery.  In the case of Rex v Bakari s/o Abdulla  (1949) 16 EACA 84 the Court of Appeal for Eastern Africa had this to say on the doctrine of recent possession –

“That cases often arise in which possession by an accused person of property proved to have been very recently stolen has been held not only to support a presumption of burglary or of breaking and entering but for murder as well, and if all the circumstances of a case point to no other reasonable conclusion the presumption can extend to any charge however penal.”

(See also:  Manazo Mandundu and Another v Republic (1990) TLR 92).

        In the result, we dismiss in its entirety the appeal by the first appellant.  However, we allow the appeals of the second, third and fourth appellants, their convictions for armed robbery are quashed and sentences set aside.  The second, third and fourth appellants are to be released forthwith from custody unless otherwise lawfully detained.

        DATED at DAR ES SALAAM this 17^th day of December, 2007.

E. N. MUNUO

JUSTICE OF APPEAL

H. R. NSEKELA

JUSTICE OF APPEAL

E. A. KILEO

JUSTICE OF APPEAL

        I certify that this is a true copy of the original.

(I. P. KITUSI)

DEPUTY REGISTRAR

View other posts for your benefit...