19700814 TZHC Dar es salaam

Judgment or Order on Appeal (s. 320) Criminal Form No. 33 (Approved by the High Court under Section 352 of the Criminal Procedure Code). Summary rejection (s. 317) IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM APPELLATE JURISDICTION CRIMINAL APPEAL No ....... 8 ............ OF 170.. Original Criminal Case No ....... 15? ........................ . .... of 19 t$9. 0 f the District Court of District at ....... ?AS ................ before ....... N.tniJcz.za ......................... Esq.,I€ie Mie/District Magistrate. - ì .U.. Appellant (Original Accused) ] versus THE REPUBLIC .............................................................................................. Respondent (Original Prosecutor) CHARGE: iobbery with vIolence contrary to section 28b & 288 of the Penal Code, JUDGMENT/ORDER BlilioN J. The appellant was convicted of robbery, and he was sentenced to iinprionaent for three yeam and to twenty four strokes corporal pwilshiaont, lie is now appealing. It was established in evtdence that during the night of the 22nd of July the complainant's shop was entered and there were stolen therefrom 10 pairs of khangao, pairs of vitenge, 20 cans of ftsh, and suiting material as w eli as in cash. The only evidence to connect the appellant with the robbery was that of the shopoeper'a son Michael, a youth whose age is given as eighteen years and who was at the material time scrv tug in the sbop He testified that two men entered the shop at about It) & clock at night and bought some battery , cells and also asked for cigarettós. G P Dm 15134110.67/2m /2 AO They then left and a short while later returned with a third man, who was armed with a panga. This man threatened to kill the witness with his panga if he raised an alarm. The men then helped themselves to various goods and left. The witness raised the alarm and the shopkeeper ran to the scene, but all he saw was four men, none of whom he could recognIse. Michael, however, stated that the man with the panga was the appellant. He recognised him by the light of a. corobot, and gave a description of him to the police. A police officer testified that the description given by Michael fitted the appellant, whom he kneil well as a police survisee, and he arrested him on the following day. On the 25th of July an identification parade as conducted at the police station and at this parade Mchael picked out the appellant as the man with the panga. As the learned magistrate directed himself, and it is pertinent to quote from his udgement*_ "The only evidence to rely on here is that of the P.I.2 (Nichael). The P.W.2 did not know the name of the accused. Re only knew the particulars of the bandits who raided his shop. Therefore he had to pick him in an identfication parade. The P.W.2 agrees that he made two passing(s) without picking any bandit and that it was on his third time that he picked the accused and identifIed him to be among the bandits (who) raided his shop and robbed him. The evidence of the P.W,2 wculd be said to be not water- tight but because of the following reasons I say that this evidence is sufficIent to convict.t" The magistrate went on to direct himself that the appellant was tfacialiyft known to the withess, who had clearly seen him, as there was a pressure lamp burning, and also that the appellant was wearing a black jacket at the time and when the appellants house was searched, there was found therein a black. jacket. It is self-evident, I think, that where the whole case against an accused rests on Identification alone, such identification must be sound and convincing. it is hardly necessary to cite any authority for that proposition, but it is not irrelevant to quote from a case reported in (1960) E.A.174, that of R.vaebwf4?, wherefrom it is sufficient to quote the headnote, which reads:- S. . • . a S "Held: where the evidence alleged to implicate an accused is entirely of identifIcation, that evidence must be sbsoiutely watertight to justify a convieton." As noted, the magIstrate himself said that the evidence of identitication was not watertight. With respect, that is an understatement. Although in Ms judgement the magistrate stated that there was at the time a. pressure lamp burning, according to michael, who is the chief - in fact the only - witness on this partcui.ar aspect, the sole illumination at the time was from a coroboi, which cannot be said to give a very strong light. Further, Michael identified the appellant apparently because he was tall. Although the magistrate found the evidence of dentiflcation not to be watertight, to use his own expression, he nonetheless accepted it apparently on the ground that it was supported by the fact that a black jacket was found in the 2ppellant's house when it was searched, and according to rchael the robber with the panga wore such a black jaàket. As against all this,, It must be borne in mind that Michael, a youth of 18, an age not tsually remarkable for responsibIlity, twice passed along the line at the identification parade and failed to pick out the appellant. He only picked his out on his third round. And the identification usrade was held only three days after the robbery. Further, although a considerable number and variety of articles were stolen, not a single one of them was found in the possession of the appellant, who was arrested the very next day. As noted, the qlice officer to whom Michael reported, recognIsed the appellant from the description given by Michael because he knew kiixn well as a police supervisee. This evidence was inadaissible and it may well have influenced the magistrate. Be that as it may, in all the circumstances, as, I think, sufficIently demonstrated and as agreed to by learned State Attorney, it would 'be most unsafe to uphold the conviction. The appeal is accordingly allowed, the conviction, which, as noted, is not supported by the Director of PublIc Prosecutions, is quashed, and the sentence imposed thereon is set aside. • • • 4 * . 14 -:4:- If the appellant is not otherwise lawfully dta1ned iri custody, he is to be realeased forthwith. Delivered in Court at Dar es Salaaa in the presence of the appellant (n person) and Mr.Chandoo for the Republic. this 14th day of August 1970. (PHILIP BIRON) JUDGE.