19780612 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA AT MWANZA JtPPELLATE JURISDICTION HIGH COURT CRIMINiL APPEAL NO 334 OF 1977 ORIGINAL CRIMINAL CASE NO0 260 OF 1976 OF THE DISTRICT COURT OF KWIMBA DISTRICT AT NGUDU Before J.S. KAGINE, Esq 0 , DISTRICT MJiGISTRi-TE JOHNs/a MrTHEW 0 0 o a a 0 0 0 0 0 a 0 a 0 a 0 a a a o a 0 0 a 0 0 0 a a 0 0 ......... APPELLiiT (Original ;ccusd) Versus THE REPUBLIC .......... . ..................... 0 0 0 0 0 0 0 ....... o RESPOI'fl)Ei'JT 0 0 (Oriqirial Prosecutor) CHARGE: ROBBERY WITH VIOLENCE contrary to sectiorS285 and 286 of the Penal Code0 -OoO- J U D G M E NT MFALILA, J. The appellant was charged and convicted of the offence of robbery with violence and sentenced to seven years imprisonment0 He appealed against his conviction0 The case against the appellant rested solely on his identification by the Watchman Francis s/o Magembe (P0W01), for the rest of the evi- dence tending to connect him to the offence was either inadmissible or C1s- credited0 The statement by one Banabantemi that the appellant was among the people who raided the society was inadmissible on the basis that Benabantemi himself did not give evidence0 The evidence regarding the ael- lent's admission to P0W06 was discredited because this witness turned hostile and was treated as such albeit perfunctorily0 In the main there- fore the prosecution case had to stand or fall on the watchman's evidence0 This witness said that he identified the appellant because he grappled with him and there was light from a lamp0 The question is whether the conditions were ideal for accurate identification0 I think not 0 First of all it is not clear where the lamp was 0 Yas it in the office or out- side where the commotion took place? Secondly, in view of the sudden assault on P0J01 and the number of robbers involved, could he accurately identify any of them? Thirdly if he could identify any of these people where did he subsequently identify them; at a parade at the police station? The evidence is silent as to this, all we have is a statement by him that he identified the appellant at the police station0 The last and most important problem surrounding the appellant's identification is that accorUing to the watchman himself these people went there with their faces hidden I presume by this it was meant they wore masks0 If this is so, it made it (ubly difficult for the watchman to accurately identify any of his attackers0 For these reasons I cannot say with Mr0 Kinabo that the appellant was sufficiently identified as to make hi.. conviction safe0 I allow the appeal quash his conviction set aside the sentence of seven years imprison- ment and order that he be released from pison forthwith unless otherwise lawfully detained0 Delivered in Court at Mwanza this 12TH day of JUNE, 1978 L.L)Ak.) L. MFALILA MWANZA O 12TH JUN J 19780 UDG&