JEREMIAH AND THREE OTHERS

IN THE HIGH COURT OF TANZANIA (MOROGORO SUB-REGISTRY) AT IJC MOROGORO CRIMINAL APPEAL NO. 15210 OF 2024 (Originating from the decision of the Resident Magistrate Court of Morogoro in Criminal Case No. 30 of 2023.) ATHUMAN JEREMIAH…………………….…… 1ST APPELLANT SHAMTE ABUBAKARI……………..……………2ND APPELLANT AMOS AYUBU…………………………………..3RD APPELLANT VERSUS REPUBLIC………………………………………….RESPONDENT JUDGEMENT 10th July 2024. MANSOOR, J, The three appellants have been convicted and sentenced to 30 years’ imprisonment for the offence of Armed Robbery contrary to section 287A of the Penal Code, Cap 16 R: E 2019. They appealed and raised five grounds of appeal. The State Attorney who appeared for hearing supported the first Page 1 of 4 ground of appeal. He said that the armed robbery took place in Dumila, at night. The prosecution had three witnesses. PW1 was the investigation officer, PW2 was the victim, and PW3 was the passer-by who rescued the victim. PW1 arrived at the crime scene after he received a call from PW3. In his evidence at page 10, he never said he received the descriptions of the appellants’ identities. He therefore never described the appellants, and he did not find them at the crime scene, He said he travelled about 50 meters and found the 1st and 2nd appellants and had apprehended them. PW2, the victim, his evidence at page 25 of the proceedings, did not identify the appellants. He only said he was attacked, the attackers had threatened him with the knife, and they stole Tshs 50,000 from him. PW3, the watchman, said he knew the 1st and 2nd appellants before the incident, and could recognise them during the incident. He did not however mention their names or description to PW1, the police officer. Failure to mention their names, and only testifying in court that he knew the appellants before the incident was not enough identification. He ought to have described how they were dressed, their voices, their height and their names. The Learned State Attorney refers to the case of Cyprian Mtungilei vs R, Criminal Appeal No. 244 of 2021 (CA) at Bukoba, at page 9, in which the CAT referred to Page 2 of 4 the case of Annael Sambo vs R, Criminal Appeal No. 274 of 2007. At page 11 of the Judgement, the CAT also refers to the case of Rex vs Mohamed Bin Alui, 1942 No. 9 EACA 72. The principles of identification on their distinct features were set. The CAT also refers to the case of Jaribu Abdallah vs R, 2003 TLR 271 in which it was stated that credibility of identifying witness must be centred on description of the accused person and earliest naming the accused persons. The State attorney also refers to the case of Marwa Ngiti Mwita and another vs R, 2002 TLR 39. He thus concludes that PW3's credibility on identification of the appellants herein was shaken and said the case was not proved beyond reasonable doubt. He prayed for release of the appellants. As submitted by the Learned State Attorney, I agree that PW3 evidence that he knew the appellants even before the commission of the offence but failed to mention their names to PW1 at the earliest, is not enough identification of the assailants, in the case where the witness purports to have recognized the assailants, the identifying witness must fully describe the features of the assailants before they are apprehended to avoid mistaken identity. Every case of visual identification, the visual identifications evidence must be subjected to close scrutiny. On close scrutinization of the evidence of PW3, Page 3 of 4 the court could not eliminate the possibility of mistaken identification as PW3 failed to mention the assailants’ names to PW3 at the earliest while he claims to have known the assailants even before the incident. He also did not describe their features, and the clothes they wore during the incident. Thus, in this the case where the conviction of the appellants relied solely on their identification by PW3, which identification was found unreliable, the prosecution failed to prove the involvement of the appellants in the commission of the offence. Consequently, the conviction and sentence passed by the Trial Court is hereby quashed and set aside. The appellants, namely, Athuman Jeremiah, Shamte Abubakari and Amos Ayubu are hereby acquitted of the offence charged. They be released from imprisonment immediately, unless held for any other lawful cause. It is so ordered. DATED AND DELIVERED AT MOROGORO THIS 10th DAY OF JULY 2024. L.MANSOOR JUDGE 10/07/2024 Page 4 of 4