19750222 TZHC Dodoma

.- - --- IN THE HIGH COURT OF TANZANIA AT DODOMA APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO0 132 OF 1974 ORIGINAL CRIMINAL CASE NO0 69 OF 1973 OF THE DISTRICT COURT OF IRINGA DISTRICT AT IRINGA Before A. Bahati. 0 0 0 0 0 • 0 0 0 0 0 0 0 0 .Resident Magistrate CHARLES MSIGWA. 0 0 .Appellant, (Original Accused) Versus THE REPUBLIC. 0 • 0 0 0 0 0 .Respondent (Original Prosecutor) Rebbery with violence c/s 285 and 286 of the Penal Code Cap0 16 Vol.1 of the laws0 J U D G M E N T MNZAVAS J. The appellant was jointly charged (with another man who was acquitted) with robbery c/s 285 and 286 of the Penal Code and on conviction, sentenced to 8 years imprisonment. He is now appealing against both the conviction and the sentence. '* On the night of 14/1/73 one John Kalinga (PW1) was at his' shop when robbers came ' and attacked him using a gun and robbed him of his shop..goods and shs..700/= cash. From the evidence of the complainant the robbers were seven in number but that he only identified the appellant and one, George Ng'ingo, the man who was acquitted. According to the complainants' evidence the appellant, George Ng ingo and another person he did not identify came to the cQunter of his shop and demanded money or shop—goods and threatened that he woUld die if he did not comply with their requests. It was his evidence that the appellant was armed with a gun which he fired and wounded him in the thigh. The other four robbers were said to have entered the kitchen which is adjecenthe shop and demanded money from complainants wife (PW5). It was complainant's evidence that he amply identified the appellant-and George as among the robbers that night. He said that he had known the complainant for a very long time and that there was a lamp in the shop. Another witness, brother—in—law of the complainant ) also told the court that he identified the appellant and George Ng'ingo as among the people who robbed the complainant on the material night. Another witness was (PW3)..employed by the complainant as a tailor gave evidence to the effect that he saw and identified the appellarft as among the robbers on that night. Complainant's wife (PW5) also 'testified to the court that he identified the appellant as one of the robbers. The learned resident magistrate analysed the evidence and caine to the conclusion that the appellant was adequately identified as one of the robbers and he accordingly convicted him of the offence of robbery with violence and sentenced him to 8 years imprisonment. He however found that there was no sufficient evidence connecting George Ngingo with the offence and he adcordingly acquitted hi0 ./2 In admitting this appeal to hearing Mapigano Aà J. minuted "Admit to have a relook into the question whether identification was positively reliable." In support of the ,convictioh the learned state attorney argued that there was sufficient evidence leading to the identifidation of the appellant as one of the robbers and asked the court to dimis the appeal Readirg from the judent of the learned resident magistrate there can be no doubt that appellants' conviction was wholly based on the alle,d identification of the appellant as ohe of the robbesby the complaTh4 ant PW1 9 Alberto, a boy of fifteen (Pw2) — brother inlaw of the complainant, Paul (PW3).,an employee of the complainant and Lenata(PW5) wife of the complainant0 In a first ap.eal, as it is in. this case, the appellant is entitled to have this court's own consideration and views of the evidence as a whole and its owndecisio'n thereon — 8ee.the Court of Appeal decision in DINKERRAI RAMKRISHA1 PA'IDYA V R (1,7) E.A. .336. In a case r where the identification of an accused is the main issue it is extremely important that the identifying witneses give a decription as to how they came to identify an accused. is Dealing with the question of identificatioiiad this to say in curt LUDOVICO SIO KASHAKU V,R (1967) H.CODO 194: "It is unsafe to support a conviction on the bré assertions of witheses that they had recognised the accused. There otight to have been evidence showing how they (witnesses) identified the.appellants. A description of their attire and such other evidence in support of their testimony would have been of great help." The vital question the lower court had to examine before coming to a conclusion one way or the other was: (1) Did the identifying withesses give descriptions as to how they came to identify the accused as one of the robbers ? (11) If they did give descriptions of 'the appellant were the descriptions of appellant's identity corsistent with each other ? From the evidence three of the identifying witnesses descri1d appellant's attire on the material night but their descriptions ware. totally inconsistent with each other. For example the complainant (PJi) told the lower court that the appellant was wearing a long trousers and a coloured shirt. Alberto (PW2) who also claimed to have seen and identified the appellant told the court that the appellant was wearing a coat and a hat. Paul (PW3) said that the accused was wearing an overcoat. As to how the robbers entered the shop the evidence of the complainant was to' the effect that the appellant entered the shop with George Ng'ingo and another person,he did not know. Alberto (PW2) on the other hand stated that he only sTw the appellant and George Ng'ingo (the perspn acquitted) entering the shop. /ope1l— Paul(PW3) again gave a different story. According to him only the 14ni Compl*ainantf'a wife who like Paul and Alberto were in the kitchen said nterec1 'that the appellant entered the shop accompanied by another persorT. the shop. - If as claimed by the complainant (PWI)., Alberto (PW2), and Paul (PW3),they identified the appellant as one of the robbers how, was it that they diarnentrically opposed each other as to the appellant's attire on the material night ? If as again claimed by Alberto, Paul, and complainant's wife (Pw5) they were all in the kitchen when the bandits entered the shop and that they all saw and identified the robbers how come that they totally contradicted each other as to the number of the robbers that entered the shop 2 There were the questions that the learned resident magistrate should have addressed his mind to before coming to his conclusion. As ... /3 . . . . 6 . . . . . . . .13 the matter stands the learned magistrate merely accepted the bare desertions by the four witnesses that they identified the appellant as one of the robbers without making any attempt to examine the apparent contradictions in their testimony. The evidence shows.that for quite a long time after the commission of the offence the police did not suspect the appellant as one of the robbers. The police would appear to have merely suspectad that appellant's shot—gun was used in the commission of the offence and therefore proceeded andtook appellant's gun which was sent to a ballistic expert in Dar es Salaam for examination as to whether the cartriges found at the scene of crime came ot from appellant's gun. The ballistic expert's report was apparently negative and did not advance the prosecution case against the appellant any further. There was also one odd circumstance in this case. Neither the appellant nor his relatives reported to their cell-.leader (P4) that the appellant was among the robbers. Appellant's wife (PW5) told the lower court that she had reported the identity of the appellant to her cell-Leader (PW4) but on his evidence the cell—leader denied such report. Indeed the cell—leacer said: -------------- "I never heard them say whether they knew any of those who wounded John, ----------They never told me that they had identified any of. the assailants." Although anothe cell—leader (PW6) said that Alberto XPW2) had told him that the appellant was one of the robbers, Alberto did not tell him how he identified the appellant. And y as I have already mentioned, Alberto's description of appellant's attire materially differ4d from the descriptions of the other identifying withesse s. From the nagistrates judgment he did not believe the complainant and Alberto (PW3) that they amply identified George Ng'ingo and he therefore acquitted him. But for reasons unexplained in his judgment he relied on the evidence of the complainant and Alber:o in coming to the conlusion that the appellant was one of the rpbbers without examining the apparent contradictions in their evidence, Like the complainant, the appellant is a business man, with a shop which from the evidence is bigger than that bf the complainant. He owns four unga mills, a lorry and a heard of cattle. There was no suggestion, leave alone evidence, that there was enemity between the appellant and the complainant. Nor was there any suggestion that the two were rivals in businesss as they lived between 2 and 3 miles apart. Looking at the totality of the evidence it is amply clear that the learned magistrate formed an unbalanced view of the evidence and reached a decision which is unsupportable had he taken into account the inconsistence regarding identification of the appellant and ap ellantts defence. Upon the whole evidence, and with due respect to the learned state attorney, I am of the opinion that it remains doubtiful whether the appellant could have been one of the robbers. The appeal is accordingly allowed. The appellant is to be released from custody forthwith unless he is lawfull: held in connection with another matter. DODOMA N.S. MNZJWAS 22/2/75.. Appellant present in person Mbilinyi for the Rep/Resp.