KINTU

IN THE HIGH COURT OF TANZANIA (MWANZA SUB-REGISTRY) AT MWANZA CRIMINAL APPEAL NO. 30529 OF 2024 (Arising from Criminal Case No. 4916 of 2024 in the District Court of Ilemela At Ilemela) KINTU MOHAMED…………………………………………………………..APPELLANT VERSUS THE REPUBLIC…………………………………………………………….RESPONDENT JUDGMENT 17th & 24th March, 2025 KAMANA, J. This appeal arises from the decision of the Ilemela District Court at Ilemela. Before the said court, Kintu Mohamed, the appellant, was charged with and convicted of an offence of armed robbery contrary to section 287A of the Penal Code, Cap. 16 [RE.2022]. He was sentenced to serve 30 years in prison. The prosecution case was that on 9th February, 2024 at Kangae B area within the District of Ilemela in the Mwanza Region, the appellant stole TZS 200,000/-; two smartphones make Samsung AO3 and Itel valued, respectively, at TZS 300,000/- and TZS 250,000/-; a laptop make Lenovo valued at TZS 350,000/-; 10 kilograms of rice valued at TZS 23,000/-; and 10 kilograms of beans valued at TZS 20,000/-, the property 1 of John Zakaria. The prosecution alleged that immediately before stealing, the appellant threatened to stab Zakaria with a panga in order to obtain or retain the stolen items. Facts had it that on 9th February, 2024 around 2200 Hrs, Zakaria (PW2) while at his home was invaded by five persons armed with pangas. The invaders, threatening to cut him with their pangas, ordered PW2 to give them money. While under the threat, Zakaria saw the invaders taking the items. When they were about to leave, PW2 attempted to apprehend one of the invaders but he failed as the invader tried to employ his panga on him. According to PW2, the appellant was bleeding on his right thumb. PW2 testified that he identified two invaders including the appellant who used to sell water at the National Bus Terminal. He stated that he recognized the appellant who wore a white T-shirt and jeans trousers as there was enough light from a bulb. After the incident, PW2 went to Nyakato Police Station where he narrated what had befallen him. On 11th February, 2024 when he was going to Nyakato Police Station, PW2 saw the appellant in the same clothing he was clad in when he invaded him. Having seen the appellant, Zakaria informed the police, and the appellant was arrested. 2 WP 5900 DC Esther (PW1) testified that on 9th February, 2024 while on duty at Nyakato Police Station she received a complaint from PW2 that he was invaded by three persons armed with pangas who stole the stated items. The witness testified that she registered the complaint and intended to transfer the file to Kirumba Police Station after realizing that Kangae B was within the Ilemela District. PW1 evidenced that on 11th February, 2024, PW2 reported having seen the appellant at the National Bus Station. Having received the report, PW1 asked PW2 how he identified the invader. PW2 told her that the invader was in the same clothes he wore on the fateful night. Further, PW2 told PW1 that the invader had a wound on his right-hand thumb occasioned by PW2’s attempt to snatch a panga from him. From that information, the appellant was arrested. According to F 2372 D/Sgt. Hussein (PW4) who investigated the case, PW2 told him that he identified the appellant by his face and the wound on his right-hand thumb and that he used to see him selling water at the bus terminal. Joseph Gerald (PW3) testified to be present when the incident took place though he was asleep. According to him, the invaders told him not to raise his head to avoid being slashed with a panga. He adhered to the order and did not shake his body until when PW2 told him that the invaders had gone. 3 In his brief defence, the appellant disassociated himself from the alleged offence. He testified that on the material night, he slept at his boss’s house. Having weighed the evidence, the trial court was satisfied that the appellant was identified as the culprit who robbed PW2. The trial court reasoned that all conditions for eroding the possibility of mistaken identity were met as per the case of Waziri Amani v. Republic [1980] T.L. R 246. Further, the court held the view that PW2 described the appellant in terms of his clothes. On that basis, the appellant was convicted and sentenced accordingly, hence this appeal which is premised on three grounds. However, in the interest of justice and the precious time of this court, the determination of this appeal centers on the first ground in which the appellant assails the trial court’s decision for convicting him on the identification evidence whereby PW2 did not name or describe him as an invader at the earliest opportunity. In arguing for the appeal, the appellant had no legal representation. He asked this court to consider the grounds of appeal and set him free. The respondent had the services of Ms. Stella Minja, learned State Attorney. 4 Arguing against the first ground of appeal, Ms. Minja contended that the appellant mentioned the appellant as one of the invaders who invaded him at the earliest opportunity he had. She referred this court to page 13 of the proceedings on which the appellant was recorded to testify that when he was at Nyakato Police Station he narrated what happened on the fateful night. The learned State Attorney argued further that in his evidence, PW2 stated that he identified the appellant from the clothing he wore on a material night. She went on to argue that PW2 testified that before the incident he used to see the appellant selling water at the bus terminal. In her view, that evidence was sufficient to prove that PW2 mentioned the appellant at the earliest opportunity. The appellant, a layperson, reiterated his position that he be set free. In determining this ground, this court is set to answer the question as to whether the appellant was positively identified by PW2. It is trite that visual identification evidence is a weak one and conviction based on such evidence must be free from any possibility of mistaken identity. See: Waziri Amani (Supra). It is an established principle that in convicting the accused on visual identification evidence, the convicting court must satisfy itself that there were favourable conditions that enabled the witness to identify the 5 accused. The principle also applies in the circumstances of this case in which PW2 suggests that he recognized the appellant as he knew him before the incident. The favourable conditions were stated in the case of Shamir John v. Republic, Criminal Appeal No. 166 of 2004-CAT (Unreported) in which it was stated: ‘It is now trite law that the courts should closely examine the circumstances in which the identification by each witness was made. The Court has already prescribed in sufficient details the most salient factors to be considered. These may be summarized as follows: How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? I f only occasionally, had he any special reason for remembering the observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witnesses when first seen by them and his actual appearance?’ 6 Assuming that PW2’s evidence established the existence of the favourable conditions that eliminate the possibility of mistaken identity or recognition, was it enough to conclude that he identified or recognized the appellant without mentioning or describing him at the earliest opportunity? The answer is no. This is because the reliability of the witness of visual identification or recognition not only depends on favourable conditions for identification or recognition but also on the ability of the witness to name or describe the accused at the earliest opportunity. This is because when a witness of visual identification mentions or describes the accused to the first persons he met after the incident, the possibility of the witness being influenced by third parties as to who was the accused is eliminated. In the case of Jaribu Abdallah v. Republic [2003] T.L.R. 271, the apex Court had this to state: ‘In matters of identification, it is not enough merely to look at factors favouring accurate identification; equally important is credibility of the witness. The conditions for identification might appear ideal but is not guarantee against untruthful evidence. The ability of the witness to name the offender at the earliest possible moment is, in our view, a reassuring, though not a decisive, factor.’ 7 Guided by the stated principles, I went through the evidence of PW2 who testified to have recognized the appellant at the scene of the crime. In his evidence, PW2 stated that there was enough light from a bulb and he used to see the appellant selling water at the bus terminal. Further, he stated that the appellant had a wound occasioned by his attempt to snatch a panga from the appellant. My analysis of the said evidence suggests nothing to the effect that PW2 named or described the appellant at the earliest opportunity. To be precise, the appellant did not name or describe the appellant to PW3 who was with him in the house when the incident took place. Further, PW2 did not name or describe the appellant to PW1 when he reported the incident. According to his evidence, when he was at the police station, he narrated what had befallen him. In my view, the evidence that he narrated what happened to him does not necessarily imply that he named or described the appellant to PW1 as Ms. Minja wanted to persuade this court. Worthy to note is that if PW2 described the appellant to PW1, how would PW1 ask him how he identified the appellant? According to the evidence of PW1, the description of the appellant was given by PW2 on 11th February, 2024 after seeing him at the bus terminal. There is no 8 evidence that PW2 named or described the appellant on 9th February, 2024 when he reported the incident. Scanning the evidence of PW3 who was with PW2 when the incident took place, it is clear as crystal that the witness did not testify that PW2 mentioned the appellant as the culprit to him. Likewise, the evidence of PW4, the investigator, shows that PW2 told him about how he recognized the appellant after the appellant had already been arrested. Given that, the inability of PW2 to name or mention the appellant as the person who invaded him to PW3 who was with him at the incident or to PW1 to whom he reported the incident puts his credibility into question. This means that his evidence that was based on recognition is not reliable. Since his credibility as an eyewitness is questioned by this court, there is no way out other than to conclude that the prosecution failed to prove its case beyond a reasonable doubt. I would hold otherwise if there were other evidence that linked the appellant and the offence he was convicted of. Consequently, I find that the appellant was wrongly convicted of the armed robbery as the case against him was not proved beyond a reasonable doubt. I therefore allow the appeal, quash the conviction and 9 set aside the sentence. The appellant be released from the prison forthwith unless he is otherwise lawfully held. It is so ordered. Right To Appeal Explained. DATED at MWANZA this 24th of March, 2025. KS KAMANA JUDGE 10