CRIMINAL APPEAL NOMUKSINI ISSA LIHONGO NEWNEWNEW

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MTWARA SUB-REGISTRY AT MTWARA CRIMINAL APPEAL CASE NO 78 OF 2023 (Originating from the District Court of Tandahimba at Tandahimba in Criminal Case No 1 of2023) t. Z MUKSINI ISSA UHONGA........................1st APPELLANT MUSSA RASHIDI NANDOLO ................. 2nd APPELLANT ■'J ,'S'; VERSUS THE REPUBLIC ......................... RESPONDENT JUDGMENT Date oflast enter; fri November2023 Date ofJudgement: 2S& November2023 LALTAIKA, J, The appellants herein MUKSINI ISSA LIHONGA and MUSSA RASHIDI NANDOLO referred to as 1st and 2nd appellant respectively or collectively as appellants, were arraigned in the District Court of Tandahimba at Tandahimba charged with the offence of Armed Robbery Contrary to Section 287A of the Penal Code [CAP 16 R.E. 2022]. Page 1 of 9 It was the prosecution's story that on the 4th day of January 2023 during night hours at Dinyeke Village within Tandahimba District in Mtwara Region while armed with bush knife (panga) and knives did steal one Smart Phone Sliver in color Named Tecno Spark with IMEI NO 357907143002371 and 357907143002379 valued atTshs.690,000/= one Subwoofer Named DS Solar valued at TShs. 130,000/=, One Solar Battery Named Volt Max N80 12v valued atTshs 380,000/= One Solar Inverter valued at Tshs. 70,000/= one Solar Panel named Sunshine 50watt 12v, valued atTshs. 140,000/=, Six ’•'to,. pairs of shoes valued Tshs. 100,000/= Nine bottles of pesticides five bottles of Movil one litre for each other, one bottle of Indazole 25 sc 1 Litre, one bottle of Baconazole 50 sc 1 Litre, and two bottle of Falvil 50EC1 Litre valued at Tshs. 180,000/=, One Motorcycle carburettor valued at Tshs. 15,000/= two adaptor charger valued atTshs. 30,000/= and various Clothes valued at ■t. 100,000/= all total valued Tshs. 1,835,000/= the property of one SALUMU S/o MANZI SALUMU and immediately before such Stealing did threaten to assault one SALUMU S/O MANZI SALUMU with bush knives in order to obtain the said stolen Property. When the charge was read over and explained to the appellants (then accused) they pleaded not guilty. This necessitated the conducting of a full Page 2 of 9 trial. Qn completion of the trial and having been convinced that the prosecution had proved its case beyond reasonable doubt, the trial court convicted the appellants as charged and sentenced them to 30 years imprisonment. Dissatisfied, the appellants have appealed to this court by way of a petition of appeal containing the following eight (8) grounds. In spite of the grammatical and typographical errors I reproduce them for ease of reference: ... 1. Thatthe prosecution side didn't proveits case beyond reasonable doubt 2. That the doctrine of recent possession ' was wrongly Invoked to implicate die appellants with the offence charged. 3. That none of the prosecution witnesses put up an explanation as to how they came to identify that it was the property of PW2. 4. That the stages ofadmitting documents were not complied with, thereby causing serious injustice on the part of the appellants, 5. That the. trialWjurt having failed properly to examine, evaluate and analyze evidence on record. 6. Thatthe trial Court erred in fact by convicting and sentencing the appellants as it . (dfdybasing on accomplice evidence without corroboration and didn't warns (sic!) ‘.■itself of the danger of acting on such uncorroborated evidence. Z That the trial Court erred in law and in fact by convicting and sentencing the appellants as it did, basing on unreliable evidence. 8. That the manner in which the proceedings at the trial Court were conducted was irregular or/andimproper. Page 3 of 9 9. That the trial Court erred in law and in fact by convicting and sentencing the appellants as it did, basing on confession obtained by improper or/and unlawful means. When the appeal was called for hearing, the appellants were present in court while enjoying the legal services of Mr. Rainery Songea, learned Advocate. The respondent republic, on the other hand, appeared through %% Mr. Steven Aron Kondoro, learned State Attorney. ,/■;/A Supporting the appeal, Mr. Songea addressed the court by stating that ,.S the appellants had filed a joint petition with eight grounds, but it was his intention to argue them collectively under one primary complaint—that the case was not proved beyond a reasonable doubt. While appearing rather thoughtful, he indicated that his’focus would be on issues related to identification and the application of the doctrine of recent possession. Mr. Songea averred that the appellants were arraigned on charges of X’T" armed robbery and accessory after the fact. He explained that the incident •1.1. allegedly occurred on 4/1/2023 during the night hours, as testified by PW2 and PW3. PW2, the victim, Mr. Songea asserted, claimed to have been at the scene of the crime and identified the appellants. He argued that such purported identification, as documented on page 13, lacked proper details. Page 4 of 9 The learned Advocate emphasized that PW3 did not provide information about his distance from the appellants, the time of the incident, the source and intensity of light, and notably, he never mentioned their names. Referring to the landmark case of Waziri Amani v. Republic TLR [1980] 250 and recent cases like YUSUPH SAYI AND 2 OTHERS V. R. (Crim Appeal No 500 of 2017 CAT, Mwanza, pp 13 to 19) and OSCA MKONDYA AND 2 OTHERS VS. DPP (Crim Appeal No 505 of 2017 CAT, Mbeya, pp 11 to 14), Mr. Songea asserted that courts must be vigilant in evaluating [the evidence of] identification. He argued that the failure to provide descriptive I .j details On identification amounted to a failure of the prosecution to prove the case, serving as a safeguard against mistaken identification. Mr. Songea prayed for the appellants' release, contending that they were not properly identified, with only PW2 allegedly doing so. On the second issue, Mr. Songea criticized the magistrate's reliance on the assertion that the stolen property was found with the appellants. He argued that the purported stolen items were common and, although described on page 14, lacked specific marks. Merely mentioning the items, according to Mr. Songea, was insufficient. To bolster his argument, he referenced the case of AUGUSTINO MGIMBA V. R (Crim Appeal No 436 Page 5 of 9 of 2019 CAT, Iringa, pp 13). In conclusion, Mr. SOngea prayed for the appellants' release. Mr. Kondoro, the learned State Attorney for the respondent, on his part, unwavering supported the appeal. He acknowledged the importance of the identification of an accused person in criminal cases. He emphasized that the failure to address identification properly renders all other evidence null and void. Mr. Kondoro admitted that the case was not proved beyond a reasonable doubt. He cited an example with PW1, stating that his testimony on the voice and attire of the appellants was not sufficient to support a conviction. v He further argued that, despite --V the incident occurring at night, PW1 failed ,,A to prove the involvement of the appellants, relying solely on voice identification. Mr. Kond°r° referenced the case of Waziri Amani (supra) and the case of SHAMIR JOHN V. REPUBLIC (Crim Appeal No 166 of 2004 J?., CAT, Mwanza, unreported), which discuss the importance of factors like light, distance, and the type of light in identification. In conclusion, Mr. Kondoro expressed certainty that the case was not proven as required by law. In rejoinder, Mr. Songea commended his learned brother for supporting the appeal. However, he passionately indicated that he had one more Page 6 of 9 authority to supply, namely HEKIMA MADAWA MBUNDA AND ANOTHER V. R. (Crim Appeal No 566 of 2019 CAT, Arusha, pp. 16). I have dispassionately attended to the submissions by counsel. There is no doubt that identification is an important part of evidence in this case. The apex Court has time and again emphasized on great care to be taken when dealing with evidence on identification. In the case of PHILIMON JUMANNE AGALA @ J4 V.R., CRIMINAL APPEAL NO. 187 A'.’’'- OF 2015 (u n reported) th e CAT stated: . \X > "...It has been repeatedly held that eyewitness testimony can be devastating when false witness identification is made due to honest confusion or outright lying..." J In the case of STUART ERASTO YAKOBO V. REPUBLIC, CRIMINAL APPEAL NO. 202 OF 2004 (unreported) the CAT stated that: , AK3 our considered opinion; voice identification is one of the weakest kind of evidence and great care and caution must be taken before action on it... There is always a possibility that a person may imitate another person's voice. For voice identification to be relied upon, it must be established that the witness Page 7 of 9 is very familiar with the voice in question as being the same voice of a person at the scene ofcrime." I have taken the liberty to reevaluate evidence adduced in the trial court and I entertain no doubt that the concurrent view of counsel for both parties is the position of the law. Weak identification makes the entire prosecution evidence unable to stand. In the upshot, I allow the appeal. I hereby quash conviction and set aside the sentence. Further, I order that the appellants MUKSINI ISSA LIHONGA and MUSSA RASHIDI NANDOLO be released from prison forthwith unless they are being held for any other lawful cause. It is so ordered. E.I. LALTAIKA JUDGE 29.11.2023 Judgment delivered under my hand and the seal of this court this 29th day of November 2023 in the presence of Mr. Steven Aron Kondoro, learned Page 8 of 9 State Attorney, and the appellants who have appeared in person, unrepresented. The right to appeal to the Court of Appeal of Tanzania is fully explained. Page 9 of 9