Rasul Amir Karan @ Juma & Others vs Republic (Criminal Appeal No. 368 of 2017) [2020] TZCA 278 (2 June 2020)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: MUG ASH A, J.A., KQROSSO, J.A„ And KITUSL J.A.) CRIMINAL APPEAL NO. 368 OF 2017

1. RASUL AMIR KARAN @ JUMA
2. HAMZA ISSA @ JANGAMA
3. GEORGE WILLIAM @ MSANGULE
4. MSAFIRI ABDALLAH @ MPANGILE APPELLANTS VERSUS THE REPUBLIC............................... . .............................. . RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dar es Salaam) (Lila, 3.) Dated the 27th day of November, 2013 in Criminal Appeal No. 76 of 2013 JUDGMENT OF THE COURT 29th April, 2020 & 2n d June, 2020 KO ROSSO, J.A.: Rasul Amir Karan @ Juma (1st appellant), Hamza Issa @ Jangama (2n d appellant), George William @ Msangule (3rd appellant) and Msafiri Abdallah @ Mpangiie^ (4th appellant) were jointly charged before the District Court of Morogoro sitting at Morogoro with the i

offence of Armed Robbery contrary to section 287A of the Penal Code, Cap 16 Revised Edition 2002 (The Penal Code). The particulars of the offence are that on the 21st March, 2010 on. or about 21.00hours at Kihonda kwa Chambo area within the District, Municipality and Region of Morogoro, the appellants did steal properties belonging to Ombeni Urassa valued at Tshs. 2,920,000/-. Specifically, cash money Tshs. 1,720,000/-; five different mobile phones valued at Tshs. 500,000/-; < and one DVD deck Sony make valued at Tshs. 130,000/-. That immediately before such stealing, the appellants did use a gun to injure one Judith Ombeni on her thigh in order to obtain the aforesaid properties. All the appellants denied the respective charge and as a consequence, a full trial ensued. The prosecution side called ten (10) witnesses and relied on ten (10) exhibits. In their defence, apart from their own evidence, the appellants called two witnesses and relied on four (4) exhibits. The background to this case drawn from the prosecution witnesses PW1, PW2 and PW4 is that, on the 21st March, 2010 around 21.00hours, PW1 and other family members just before retiring to

sleep were invaded by bandits who allegedly included the appellants. Having seen strange people outside their house and heard gun shots all family members rushed to PW l's bedroom and huddled there. A loud bang followed the sound of the gunshots and the entrance door was forcefully knocked down and a voice querying on the whereabouts c of " Bonge" (the name PW1 is sometimes referred to) was heard, followed by threats to kill "Bonge” when found. Upon hearing those words and threats, fearing for his life, PW1 jumped to the ceiling to hide. The armed invaders entered the bedroom and found PW2, PW4 and other family members gathered in the bedroom. The robbers demanded to be told where PW1 was and when informed he was not t there threatened them and ordered to be given money. PW4 gave the / bandits the day proceeds amounting to Tshs. 1,720,000/-. Unsatisfied, the robbers who continued asking for PW1 and then noticed that there was someone in the ceiling and used his gun to shoot the ceiling. According to PW1, the fourth appellant armed with a pistol, climbed up the ceiling and brought him down. PW1 and PW4 testified that when all this was taking place, apart from the 4th appellant, the 1st and 2n d appellants were also in the room. PW2 testified that she was

taken outside by the 2n d appellant and it was there that she saw the 3rd appellant and also heard the 2n d appellant'direct the 1st appellant to shoot her after she refused to tell him PW l's whereabouts. PW1, PW2 t and PW4 testified that the room had enough light emanating from a a battery operated lamp and two kerosene lamps that illuminated the house, and that on the outside there was a full moon which facilitated visibility. The witnesses gave evidence that the 1st, 2nd, 3rd and 4th appellants were armed and wore black clothes. That the 1st appellant had a pistol and an iron bar, the 2nd appellant was holding a gun, the < 3rd and 4th appellants had pistols. Apart from the cash the robbers / took from the victims, they also stole various items as narrated in the particulars of the offence as found in the charge against the appellants. After the bandits had left the scene, PW2 could not be seen but was traced by PW1 from her cries which led PW1 to the well where she-had been thrown in. PW2 was injured in the thighs and thus was unable to climb up from the well'by herself which led PW1 to go into the well and carry her out. By this time some neighbours also arrived to provide support. PW1, PW2 and PW4 and other family members

were taken to the police station to report the incident and then to the hospital to attend to injuries. PW2 and PW4 were hospitalized from the injuries they sustained. The appellants were fater arrested at different times,and places and later arraigned in court and jointly charged as stated above. In their defence, the 1st appellant dented any involvement in the offence charged raising an a lib i alleging that on the fateful date he was i in Moshi attending his sick grandmother. The 2n d appellant also denied any involvement in the alleged offence stating that he was arrested when he and the 1st appellant had gone to the police station to report about a stolen motorcycle that belonged to the 1st appellant. In respect of the 3rd appellant, his defence was a general denial of involvement in the offence charged alleging that he was apprehended t after the motorcycle he was riding had knocked off some person and / he had gone to the police station to report. The 4th appellant denied the charges stating that he was arrested on a different matter and not the offence charged and that he was later joined in the charges subject to this appeal.

At the end of the trial, the trial court found that the charge was proven against all the four appellants, convicted and sentenced each of the appellants to thirty years' imprisonment. The trial court also ordered that the appellants compensate Tshs. 1,200,000/- to PW1, PW2, PW4 and Anna Ombeni for injuries sustained and also compensate a sum of Tshs. 2,900,000/= to PW1, being the value of the cash and various items stolen. The appellants were dissatisfied with the trial court's decision and appealed to the High Court of Tanzania at Dar es Salaam. The said appeal was dismissed hence the current appeal. The appellants lodged a joint Memorandum of appeal filed on the 16th November, 2017 with < twenty-six grounds of appeal and in addition filed Supplementary / ■ grounds of appeal on the 10th January, 2018. All the grounds of appeal when paraphrased in essence contend the following main grievances:

1. That the learned first appellate judge erred and misdirected himself to uphold the conviction and sentence of the appellants relying in uncredible and unreliable visual identification by PW1, PW2 and PW4.

2. That the cautioned statements of the appellants (Exhibits P5, P7, / P8 and P9) were erroneously relied upon by the first appellate

court to uphold the conviction and sentence of the appellants' despite being recorded un-procedurally that is, beyond the required time for recording upon arrest. t 3. That the learned first appellate judge erred and misdirected / himself in upholding the conviction and sentence against appellants, in the absence of essential witnesses such as a local leader and a police officer who received the report on commission of offence to testify on how the appellants were apprehended. 4. That the Prosecution side failed to prove the offence against 1st, , 2nd, 3rd and 4th appellants and that the prosecution evidence was concocted and that there was misapprehension of the substance, / nature and quality of the adduced evidence by the prosecution against the appellants. 5. That the credibility of PW1, PW2 and PW4 was not properly assessed before being relied upon to convict the appellants nor was corroboration sought. When the appeal came for hearing, the 1st, 2nd, 3rd and 4th < appellants were unrepresented each fending for oneself. Mr. Gabriel / Kamugisha, learned State Attorney entered appearance for the Respondent Republic.

The 1st appellant prayed that the grounds of appeal found in the / substantive memorandum of appeal and the supplementary grounds of appeal be adopted and form part of their submissions. He also sought for leave of the Court to allow the learned State Attorney to respond to the appeal grounds first and then he accorded an opportunity to rejoin thereafter. The said prayer was supported by the other three appellants. The learned State Attorney commenced by supporting the appeal against the 1st, 2nd, 3rd and 4th appellants. With the leave of the Court he then proceeded to respond to the grounds of appeal in general and chose to address two main areas of contention that is, the challenge on propriety of the identification of the appellants and the court's reliance on the cautioned statements of the appellants to convict them. Starting with the grounds related to identification of the appellants found in the paraphrased grounds of appeal no. 1, 4 and 5, the learned State Attorney’s standpoint was that the identification of the appellants by the prosecution witnesses particularly PW1, PW2 and PW4 was not watertight. He contended that after the first appellate court expunged the evidence relating to the identification parade 8

conducted, the evidence remaining supporting identification of the appellants was only dock identification. He argued that in view of the settled position on the weight to be accorded to dock identification, such evidence is not enough by itself to prove proper identification of the appellant and cannot sustain conviction of the appellants especially where the appellants were unknown to the witnesses prior to the incident. He thus prayed that on the strength of his submissions the ground of the appeal be found to have merit. The 1st, 2nd, 3rd and 4th appellants' rejoinders were brief and supported the submissions by the learned State Attorney with prayers that,the ground of appeal be found to have merit. We have carefully considered the arguments from both sides and the record of appeal and it is clear that the trial and the first appellate courts relied on the evidence of PW1, PW2 and PW4 to convict all the appellants on the offence charged. These witnesses were found to be reliable witnesses and the first appellate court concluded that P W i and PW4's testimony left no doubt that the 1st, 2n d and 4th appellants were armed and at the crime scene on the fateful day. The first appellate court also found that the evidence of. PW2 clearly explicated the

participation of an armed 3rd appellant in the robbery with the other appellants. The record of appeal also b&res the fact that the appellants were not arrested at the scene of crime and there was no evidence that any of them was found in possession of any of the alleged stolen items when arrested. The first appellate judge also found that the conduct of the identification parade was enfolded with serious irregularities and thus concluded that the evidence related to the identification parade be disregarded. It is a settled position of the law that evidence of visual identification is the weakest kind and unreliable and the court should not rely on such evidence without warning itself of its fallibility. In Felician Joseph vs Republic, Criminal Appeal No. 152 o f 2011 (unreported) we emphasized that:- i "... visual and aura / identification evidence, be that o f a stranger or a previously known person ■ p articu larly one done under unfavourable conditions, such as a t night, is o f the w eakest kin d and unreliable. Such evidence should be approached with utm ost circum spection. No court should a ct on such evidence unless a ll p o ssib ilitie s o f 10

m istaken id en tity are elim inated and the court is fu lly satisfie d th at the evidence is absolutely w ate rtig h t " Thus, as observed above, reliance on such evidence to convict an accused person should only be where all likelihood of mistaken identity is eliminated and when the court is satisfied that the evidence before it is absolutely watertight [See Shamir John vs Republic, Criminal Appeal No. 166 of 2004 (unreport^d)]. ■ In Waziri Amani vs Republic (1980) TLR 250, the Court outlined factors that are to be taken into account when courts deliberate on identification evidence. The factors are such as one, the time the witness had the accused under.' observation; two; the distance at which the witness had the accused under observation; three, if there was any light, then the source and intensity of such ✓ light; and four, and whether the witness knew the accused prior to the incident. [See also: Raymond Francis v. Republic [1994] TLR 100; August Mahiyo v. Republic, [1993] TLR 117; Marwa Wang'iti Mwita and Another vs Republic, Criminal Appeal No, 6 of 1995 (unreported)]. ii

In the appeal before us, the finding of the first appellate court was that PW1, PW2 and PW4 testimonies of 1st, 2nd and' 4th appellants7identification cannot be doubted. The lower courts relied on t the evidence of PW1, PW.2 and PW4 as the identifying witnesses. We / are aware of the settled position that this being a second appeal the Court should rarely departs from concurrent findings of facts unless there is misapprehension or misdirection of evidence [See DPP vs Jaffari Mfaume Kawawa [1981] TLR 149 and Dickson Elia Nsamba Shapwata and Another vs Republic, Criminal Appeal No. 92 of 2007 (unreported)]. Suffice to say, from the evidence on record the conditions for proper identification undoubtedly were unfavorable. PW1, PW2 and PW4 evidence apart from stating that they managed to identify the appellants. PW1 identified the 4th appellant as the one who climbed and followed him in the ceiling while the 1st and 2n d appellants were in the room and the 3rd appellant he saw was outside. He also stated that t the appellants were close for him to identify them. PW2 evidence was that the 2nd appellant took her out of the room and that it was the 1st appellant who shot her with his gun having been ordered to do so by 12

the ,2nd appellant. She also stated to have seen the 3rd appellant she was taken outside. PW4's testimony was that she saw the 1st appellant who was the first to enter the house and also the 2nd appellant when he took her daughters from the room. These witnesses also testified that all the appellants were armed and wore black clothes and narrated in general what transpired on the fateful night. With regard to adequacy of the light, their evidence was that there was enough light i from a modern electrical lamp fitted with batteries and two kerosene / lamps and moonlight outside. The first appellate court made an order to disregard the evidence related to the identification parade and therefore the only evidence remaining against the appellants to corroborate visual identification evidence was PW1, PW2 and PW4's identification of the appellants in court during the trial that is, dock identification. The first appellate court took into account the dock identification by the prosecution witnesses finding that this evidence strengthened the evidence on visual identification of the prosecution witnesses. This Court has previously discussed the position where the court relies on dock identification in the absence of an identification parade. 13

This can be found in cases such as Francis Majaliwa and two others, Criminal Appeal No. 139 of 2005 (unreported) and Mussa Elias and two others v Republic, Criminal Appeal No. 172 of 1993 (both unreported). In the latter case the Court stated that "It is a w ell established rule that dock identification o f an c accused person b y a w itness who is a stranger to the accused has value only where there has been an identification parade a t which the w itness successfully id en tified the accused before the w itness was called to give evidence a t the tria l . " Again, the Court held in Salehe Mwenya and 3 Others vs Republic, Criminal Appeal No. 66 of 2006, that in a case where there is < only dock identification without identification parade, there ought to be evidence from the witnesses to the effect that they identified the appellants at the scene and the manner in which they did so. That in the absence of such evidence it follows that there was no evidence of identification in the case. Having examined the evidence before us, we are fortified that there is no such evidence. We are of the view that had the first appellate court properly evaluated the prosecution evidence, it would 14

have found that it did not provide watertight identification of the appellants. A revisit of the evidence relied upon by the two lower courts to prove identification of the appellants we noted first, that the / time spent to observe the culprits was not disclosed thus the question whether there was adequate time to facilitate the witnesses to observe the robbers to properly identify them is left unanswered. Second, there is no clear evidence with regard to the distance the witnesses had to observe the robbers at the crime scene. We are aware of PW l's evidence that he was near the robbers and we find it important to remember that it is in evidence/that for some of the time after the invasion of the robbers, PW1 was hiding in the ceiling, and the time he spent with the robbers after he came down was not revealed. Therefore, it is not safe to assume that the time PW1 alleged he was close to the robbers was adequate for him to have observed and identify them. On the part of PW4 she testified that she could only < identify the 1st and the 2n d appellants and failed to testify on who / amongst them was the one who ordered PW1 after he came down from the ceiling to give him money, nor the distance where she 15

managed to observe them. For PW2 she also failed to provide any evidence as regards the distance and time she observed the culprits. Third, there was no clear evidence provided by the witnesses on the intensity and brightness of the light in the house at the time, apart from the general statement from PW1, PW2 and PW4 that there was enough light from the lamps and moonlight outside. It is also not known where the lamps were situated in the house, since the « witnesses were in the bedroom at the time they were invaded and / apart from PW2, observation of the robbers was confined to the said room. PW2 stated that when she was moved outside she only relied on the moonlight. There is also the fact that the commotion that ensued during the robbery, without doubt put PW1, RW2 and PW4.in the state of shock and fear, a fact acknowledged by PW1 in his testimony. All these factors we find contributed to the unfavourable conditions for proper identification regardless of the proximity of the identifying witnesses and the duration the robbers were under observation. Fourth, that although the witnesses gave some description of the robbers such as the clothes they were wore, the firearms and weapons they were carrying this was very general. It is interesting to 16

note that although all the witnesses stated that the robbers were wearing black clothes. PW1 stated it was black trousers and shirts whilp PW2 stated it was black trousers and coats although this in some cases can be seen to be minor .differences, in light of the fact that there was no evidence by the police officers, that is, PW7, PW8, PW9 and PW10 stated that the prosecution witnesses had provided to them descriptions on the attire, physique and specific marks to identify the robbers, it leaves doubts ori such evidence. All the above gaps in evidence are compounded by the circumstances that obtained in the i arrest of the appellants, who according to their evidence which was / not challenged by the prosecution, for the 1st and 2n d appellants they were arrested while reporting a theft of a motorcycle belonging to the 1st appellant. The 3rd appellant stated he was arrested after his motorcycle had knocked someone and the 4th appellant was arrested for another offence and then joined into the one concerning the current appeal. This does not show that their descriptions were known. At the same time, while it is true, PW1 testified that the 4th appellant was the one who followed him up the ceiling, and for PW2, she stated that 2nd appellant took her to dining room, but considering 17

the circumstances pertaining at the crime scene and the fact that the appellants were unknown to the prosecution witnesses prior to the incidence, we find that there is a huge possibility of mistaken identity. Taking all these factors into consideration as rightly advanced by the learned State Attorney the prosecution witnesses' identification of the appellants is weak and not watertight. Thus this ground has merit. The appellants confronted t"he decision of the first appellate court on their grievance that the cautioned statements of the appellants (exhibits P5, P7, P8 and P9) were improperly relied upon by the first appellate court to uphold the conviction and sentence of appellants' despite being recorded un-procedurally. This was in effect the second grognd and is found in ground 2 of the paraphrased grounds of appeal. In response, the learned State Attorney argued this ground by unraveling the ground in two parts. The first part related to the grievance on admissibility of the cautioned statement of the 1st appellant (Exhibit P9) and the second part, concerned admissibility of the cautioned statements of the 2nd, 3rd and' 4th appellants. He argued that the cautioned statement of the 1st appellant was tendered by No. t E1141D/Cpl. Mkombozi (PW9) and was admitted without being objected

to by the 1st appellant. That after it was admitted exhibit P9 was not read over in court The [earned State Attorney argued further that failure to read over an admitted document denied the 1st appellant the opportunity to understand the substance of the evidence against him and such failure is fatal and urged us to expunge the 1st appellant's cautioned statement. He cemented his a/gument by citing Lista Chalo vs Republic, Criminal Appeal No. 220 of 2017 (unreported). With regard to the second limb of this ground, that is the challenge on admissibility of Exhibits P5, P7 and P8 the cautioned statements of the three appellants. The learfied State Attorney was of the view that since the record of appeal does not display that the trial t court or/and the first appellate court considered and determined whether or not the cautioned statements were confessions, this contravened the provision of section 27(1) of the Evidence Act, Cap 6 Revised Edition 2002. He argued that this anomaly was an incurable error which flaws the said cautioned statements and thus implored the Court to expunge exhibits P5, P7 and P8.

The learned State Attorney contended further that in view of the weakness of the visual identification of the appellants and the faulty exhibits P5, P7, P8 and P9 which were relied by the lower courts to convict the appellants, there rerfiains no cogent evidence left against the appellants. He thus prayed for the appeal to be allowed. On the part of the 1st, 2nd, 3rd and 4th appellants apart from supporting the submissions by the learned State Attorney they reiterated their prayers for the Court to find the appeal meritorious and to set them free, t The record of appeal shows that the cautioned statement of the 1st appellant was admitted as Exhibit P9 without objection from the 1st appellant (page 40 of the record of appeal). Having been admitted, exhibit P9 was not read over in court. Admittedly, the position of law is very clear on this, that failure to read an admitted document denies the accused an opportunity to know its nature and content and to use to i prepare his defence, and that such omission vitiates the trial. Various / decisions have reiterated this position. [See Robinson Mwanjisi and 3 Others vs Republic [2003] T.L.R. 218; Lista Chalo vs Republic (supra); Lack Kilingani vs Republic, Criminal Appeal No. 402 of 20

2015; and Joseph Maganga and Dotto Salum Butwa vs Republic, Criminal Appeal No. 536 of 2015 (both unreported)]. In the latter case, this Court stated that: " The essence o f reading out the docum ent is to enable the accused person to 'understand the nature and substance o f the facts contained in order to m ake an inform ed defence. Failure to read the contents o f the cautioned statem ent after it is adm itted in evidence is a fa ta l irregularity." Thus, as conceded and rightly argued by the learned State Attorney, failure to read the contents of exhibit P9 in court after being admitted is * a fatal irregularity and henceforth exhibit P9 is expunged from the / record. In respect of the cautioned statements of the 2nd, 3rd and 4th appellants, the record of appeal shows that during the testimony of No. D/Cpl. Andrew (PW8), the cautioned statements of the 3rd and 4th appellants were admitted as Exhibit P7 and P8 respectively without t objection from any of the two appellants and thereafter duly read over / in court. The cautioned statement of the 2n d appellant was tendered and admitted as exhibit P5 without objection during the testimony of PW7 21

and it was then read over in court. Admissibility of confessions to police / officers in courts is guided by the provisions of section 27(1), (2) and (3) of the Evidence Act, Cap 6 Revised Edition 2002 (The Evidence Act). A confession is defined under section 3(1) of the Evidence Act. In the case subject to the current appeal, there was.no objection to admissibility of exhibit P5, P7 and P8, and this being the case, the presumption is that the statement was voluntarily made as expounded in Selemani Hassan vs Republic, Criminal Appeal No. 364 of 2008 (unreported), where we stated that, where a statement not objected against is admitted into evidence, when the court is arriving at its judgment it will then consider all the evidence before it and all the circumstances of the case, and in doing so will consider the weight to be plac.ed on any confession that has been admitted. It has been held by various decisions that in assessing the value or weight to be accorded an admitted confession, the main consideration will be whether it is true. If the confession is the only evidence against an accused person then the court must decide whether the accused has correctly related what happened and whether the statement establishes his guilt with that degree of certainty required in 22

criminal case (see Tuwamoi vs Uganda [1967] E.A 84, Hatfbu Gandhi and Others vs Republic [1996] TLR 12, and Stephen Jason and Others vs Republic, Criminal Appeal No. 79 of 1999 (unreported)]. It is important to note that these cases addressed retracted confessions. In the present case, the record of appeal reveals that the first appellate court reaffirmed the trial court’s order of admitting exhibits P7, P8 and P9. In discussing the propriety in admitting the said exhibits, the first appellate judge sought guidance from what is provided under i section 27(1) of the Evidence Act. At page 94 of the record of appeal and stated that: "The provision o f section 27(1) o f the Tanzania Evidence A ct in very d ear words provides that a confession voluntarily m ade to a police o fficer by a person accused o f an offence m ay be proved against that person: The duty to prove that such statem ent was voluntarily made lie s on the prosecution (S.27(2) o f TEA). More, a confession sh a ll be held to be voluntarily m ade if the / court believes that it was not induced b y any threat, prom ise o r other prejudice held out by the p olice officer to whom it was made or by any m em ber o f the police 23

force or b y any other person in authority (S. 27(3) o f TEA)." The above excerpt divulges that under section 27(1) of the Evidence Act, it is a confession voluntarily made to a police officer by an accused person which may be proved against that person. The key word is that the *said statement must be a confession. This is pertinent with the understanding that everything being equal the best evidence in a criminal trial is a voluntary confession from' an accused person [See Nyerere Nyague vs Republic, Criminal Appeal No. 67 of 2010, Paul Maduka and 4 Others vs Republic, Criminal Appeal No. 110 of 2007 and DPP vs Rehema Omary Abdul and 2 Others, Criminal Appeal No. 57 of 2019 (All unreported)]. i The first appellate court considered the fact that the 2nd, 3rd and 4th / appellants did not register any objection,to admissibility of their cautioned statements and also that PW7, PW8 and PW9 were not cross- examined to challenge voluntariness of the said statements. That the appellants waited until during the defence to raise the issue o f being forced to sign on the cautioned statements and thus found the

appellants' claims were an afterthought. The first appellate judge stated further (at page 95 of the record) that:- "I have read the cautioned statem ents and I am satisfie d that they were properly recorded and therefore were properly before the court and the tria l m agistrate rig h tly considered them in h is judgm ent to convict the appellants as they provided detailed accounts o f the a ll the appellant's involvem ent in the com m ission o f the ■ offence o f robbery". Having gone through the record, we are of the view that the learned appellate judge with due respect to some extent considered extraneous matters. This can be discerned when he observed that; " the tria l m agistrate rig h tly considered them in h is judgm ent to convict the appellants" when referring to the cautioned statements of the appellants. This is because there is nowhere in the judgment that the trial,court made reference to exhibit P5, P7 and P9 or relied on the said exhibits to convict the appellants^ There was also no finding by the trial court on whether or not the contents of the exhibit P5, P7 and P8 are confessions and true. 25

At the same time, what is said to be detailed account that reveal the appellant's involvement are not clearly outlined. In Tuwamoi vs Uganda (supra) it was held that: " The second stage is the evaluation o f the confession, to , determ ine, w hether it is truef including the need o f and whether o r n ot there is corroboration. This stage / determ ines the w eight/value o f the confession . " We are of the view that had the first appellate court properly analyzed the evidence on record it would have arrived at a different conclusion. Admittedly, the first appellate court in a first appeal is vested with the role of re-evaluating the evidence of a trial court. We have discerned the efforts by the first appellate judge to reevaluate / the evidence so as to determine the voluntariness of the impugned statements, which was not done by the trial court. In the excerpt cited hereinabove, the first appellate court illustrates an attempt to reassess whether the cautioned statements under scrutiny were properly admitted and also to determine the value of the said statements. There was no attempt to properly analyse the content of each of the cautioned statement under consideration, there was just a general 26

remark that the statements provide an account of what transpired at i the robbery. With due respect, we find there was no proper scrutiny of / the evidence and a determination that exhibit P5, P7 and P8 were confessions which are true, and also that the first appellate court properly evaluated the weight and value of the said cautioned statements. Taking all the above factors into consideration, there is no doubt t that such an undertaking was important in this case, because despite / ■ the fact that the appellants challenged voluntariness during the testimonies by defence witnesses, a determination that the said statements were voluntary confessions that were true was important to prove against the makers by virtue of section 27(1) of Evidence Act. Thus the respective cautioned statements that is, exhibit P5, P7 and P8 as correctly stated by the learned State Attorney have no value in this appeal and will henceforth be disregarded. Thus, under the circumstances the ground of appeal is meritorious. In the end, for the reasons stated above, we find the two grounds of appeal are sufficient to dispose of this appeal, there being no cogent evidence to sustain the conviction against the 1st, 2nd, 3rd 27

and 4th appellants. Henceforth, the conviction of the appellants is quashed and the sentences of Thirty (30) years imprisonment and the compensation orders are hereby set aside. The appellants shall be released from custody forthwith, unless otherwise held for other lawful purpose. DATED at DAR ES SALAAM this 28th day of May, 2020. S. E. A. MUGASHA JUSTICE OF APPEAL W. B. KOROSSO ' JUSTICE OF APPEAL I. P. KITUSI JUSTICE OF APPEAL The Judgment delivered this 2n d day of June, 2020 in the presence of the 1st, 2nd, 3rd, and 4th appellants in person and Mr. Gabriel Kamugisha, learned State Attorney for the, respondent/Republic is hereby certified as a true copy of the original.