Fadhili Heri @ Selemani vs Republic (Criminal Appeal No. 283 of 2011) [2015] TZCA 813 (22 September 2015)

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: KIMARO, J.A., MJASIRI, J.A., And KAtJAGE, J.A.) CRIMINAL APPEAL NO. 283 OF 2011 FADHILI HERI @ SELEMANI ............................................ APPELLANT VERSUS THE REPUBLIC ............................................................... RESPOIIDENT (Appeal from the decision of the High Court of Tanzania at Dar es Salaam (Mutungi, 3.) dated the 21st day of October, 2011 in HC. Criminal Apneal No. 129 of 2010 JUDGMENT OF THE COURT 26th August & 2nd October, 2015 MJASIRI, J.A:- The background of the case giving rise to this appeal is as follows: In the District Court of Ilala at Samora Avenue the appellant Fadhili Heri @ Selemani was charged with three counts; gang rape contrary to section 131 (A) (1) and (2) of the Penal Code Cap 16, R.E. 2002 (the Penal Code); robbery with violence c/s 285 and 286 of the Penal Code and unnatural offence c/s 154 (1) of the Penal Code. The incident took place at Tabata Baracuda within Ilala District at about 20:30 hours. 1

11 He was found guilty on the first and second counts and was sentenced to thirty years and . 15 years imprisonment respectively, the sentences were to run concurrently. He was acquitted on the third count. Being dissatisfied with the conviction and sentence he appealed to the High Court. His appeal to the High Court was unsuccessful hence his second appeal to this Court. The appellant presented eight (8) grounds of appeal however, the major grounds of appeal in this case is identification and procedural irregularities. Identification of the appellant was not watert,iht. Exhibit P2, the cautioned statement of the appellant was wrongly admitted in court. The statement of Fadhili Fauzi was admitted contrary to section 34B (2) of the Evidence Act. At the hearing of the appeal the appellant appeared in person without any legal representation. The respondent Republic had the services of Ms. Annunciata Leopard, learned State Attorney. The appellant being a layman did not have much to say. He simply asked the court to consider 2

his memorandum of appeal as part of his submission. He asked the Court to let Ms. Leopard submit first. The learned State Attorney did not support the conviction for the following reasons:- PW1 failed to provide the description of the appellant. PW1 only made a dock identification and no identification parade was conducted. She relied on the case of Taiko Lengei v Republic, Criminal Appeal No. 131 of 2014, CAT (unreported) The procedure required under the law in admitting a cautioned statement (Exhibit P1) was not followed. Following the objection made by the appellant on the cautioned statement, the trial court was required to conduct an enquiry. This was not done. The evidence of Fadhill Fauzi was not properly admitted. The procedure as provided under section 34B (1) and (2) of the Evidence Act was not 11 3

compiled with. The High Court Judge wrongly concluded as she did on page 78 of the judgment that the statement of Fadhifi Fauzi was admitted in accordance with the law and corroborated the evidence of PW1. We on our part after a careful analysis of the evidence on record, the judgement of the High Court, the memorandum of appeal and the submissions made by Ms. Leopard, we would like to make the following observations: - We shall commence by looking at the irregularities complained of by the appellant in grounds No. 1 and 2. In relation to the admission of the cautioned statement of the appellant, Exhibit P2, it is evident from the record that there was non compliance with section 27(2) of the Evidence Act. Despite the fact that the appellant objected to the admission of the cautioned statement, the trial court admitted the statement without conducting an enquiry. Section 27(1) of the Evidence Act, Cap 6 (the Evidence Act) provides as follows:- 4

"The onus of proving that any confession made by an accused person was voluntarily made by him shall lie on the prosecution." In the case of Mwangi s/o Nyange v Rex (1954) 21 EACA it was held as under:- A trial within a trial should be held to determine not only the voluntariness or otherwise of an alleged confessional statement but whether or not it was made at all." We are of the considered view that Exhibit P2 was irregularly admitted in evidence and should be expunged from the record. Another irregularity raised by the appellant was the admission of the evidence of Fadhili Fauzi. The procedure laid down under section 34B (2) of the Evidence Act was not followed. We entirely agree with the learned State Attorney that the admission of the statement of Fadhili Fauzi by the trial magistrate was highly irregular as the requirements under section 34B (2) of the Evidence Act were not met. For exhibit P2 to have been admitted in evidence, the prosecution had to comply with the following requirements laid down under section 34B (2) Li 5

Where its maker is not called as a witness, if he is dead or unfit by reason of bodily or mental condition to attend as a witness, or if he is outside Tanzania and it is not reasonably practicable to call him as a witness, or if all reasonable steps have been taken to procure his attendance but he cannot be found or he cannot attend because he is not identifiable or by operation of any law he cannot attend; if the statement is, or purports to be, signed by the person who made it; if it contains a declaration by the person making it to the effect that it is true to the best of his knowledge and belief and that he made the statement knowing that if it were tendered in evidence, he would be liable to prosecution for perjury if he willfully stated in it anything which he knew to be false or did not believe to be true; if before the hearing at which the statement is to be tendered in evidence, a copy of the statement is served, by or on behalf of the party proposing to tender it, on each of the other parties to the proceedings; 11

Li if none of the other parties, within ten days from the service of the copy of the statement, serves a notice on the party proposing or objecting to the statement being so tendered in evidence; if, where the statement is made by a person who cannot read it, it is read to him before he signs it and it is accompanied by a declaration by the person who read it to the effect that it was so read. It is evident from the record that the above requirements were not complied with. The evidence of Fadhili Fauzi cannot therefore be relied upon to prove the case against the appellant. Given the circumstances, the High Court Judge wrongly concluded that "the statement of Fadhili Fauzi was admitted according to law." We accordingly expunge Exhibit P2 and the statement of Fadhili Fauzi from the record. In relation to ground No. 1, that the identification of the appellant was not watertight, we are inclined to agree with the learned State. Attorney that the appellant was not properly identified. According to the evidence on record Pwl who was the principle witness did not identify the appellant nor did she give the description of the appellant. PW1 identified 7

1., the appellant through dock identification. No identification parade was conducted. In Taiko Lengei v Republic (supra) in this case the Court relied upon Mussa Elias and Two Others v. Republic, Criminal Appeal No. 172 of 1993 CAT (unreported), where it was stated thus:- '7t is well established rule that dock identification of an accused person by a witness who is a stranger to the accused has value only where there has been an identification parade at which the witness successfully identified the accused before the witness was called to give evidence at the trial." Having expunged Exhibit P2 and the statement of Fadhili Fauzi, the only remaining evidence was that of PW1. However PW1's evidence is not sufficient to establish that the appellant was properly identified. For the reasons stated herein above, we are of the considered view that the prosecution has failed to prove the case against the appellant beyond reasonable doubt which is the standard required under the law. We therefore accordingly quash the conviction of the appellant and set aside

10 4 '4 the sentences of thirty (30) years and fifteen (15) years imprisonment respectively. The appellant should be released from prison forthwith unless otherwise lawfully held. It is so ordered. DATED at DAR ES SALAAM this 22nd day of September, 2015. N.P. KIMARO JUSTICE OF APPEAL S. MJASIRI JUSTICE OF APPEAL S.S. KAIJAGE JUSTICE OF APPEAL I certify that this is a true copy of the original. E.F. FUSSI DEPUTY REGISTRAR COURT OF APPEAL