simon kilimbe and 2 others vs the republic 1995 tzca 45 8 may 1995

IN THE COURT OF APPEAL OF TAiTZANIA AT DODOMA ^CORAM; K I S ANGA, Ag. C.J., RAHATHANI, J.A., And HFALIIA, J . A .) criminal appeal no. 141 of 1994 ISBTV/EHN 1. SIMON KILIMBE $ 2. ERNEST MKUTANI { ................... APPELLANTS 3. WAMI MKANJE jj AND THE REPUBLIC ............................ RESPONDENT (Appeal from the conviction of the High Court of Tanzania at Dodoma; (Maina, J . ) dated the 14th day of October, 1991 in Criminal Appeal N o . 68 of 1 990 JUDGEMENT OF THE COURT KI S A N G A , Ag. C . J .: A group of bandits broke into the house of the complainant (PV.1) at night and stole from there some money, a gnn and other items of property. They also injured the complainant (PW.1) and his wife (PW.2). Some members of the gang moved to the house of the PV.I's mother (PW.3) which was nearby and, after breaking into her house, ordered her and her husband to go to the house of PVJ.1 where they were all to be killed. On arriving back at PVJ.1's house, the bandits repeated their demands f or money. While they wero doing so PW,1 managed to escape and raised an alar.-t thereupon the bandits r?n away. PVJ.1 and PV/.2 sail that out of this group of bandits they identifier-, .four persons including the 3 appellants. P',',3 said that she identified the first and second appellants. 'Hie 3 appellants arid the other person - 2 - who were said to have been identified by PW.1 and PW.2 were charged in the District Court with the offence of robbery with violence* At the end of the trial the fourth accused was acquitted* The three appellants were convicted as charged and were each sentenced to 30 y e a r s ’imprisonment. On appeal to the High Court (Maina, J t) the appeals against convictions were dismissed and the sentences were reduced to eight years' imprisonment for each appellant. The present appeal arises from that decision, Before u s the appellants were represented by Mr, D,Cg Mljezi, learned advocate, while Mr, 3. Kifunda, learned State Attorney, appeared far the respondent Republic. Mr. Mbezi filed and argued only one ground of appeal urging that there was no corroboration ^f the evidence of visual identification of the appellants by the witnesses. We think that Mr, Mbezi's complaint is justified in relation to the third appellant, Wami Mkanje. This appellant and the fourth accused who was acquitted were said to have been identified by PW.1 and PW.2 only in circumstances which admittedly did not favour eorreet identification. There was no other evidence tending to support the visual identification of these two by P',/,1 and PW.2, Once the trial court found that such identification was insufficient to sustain the conviction of the fourth accused, she could not properly have found such identification to be sufficient to sustain the conviction of the third appellant for the simple reason that the conditions under which both accused were identified were identical. The learned High Court Judge Ii~] not address his mind to this aspect of the matter, ani had he done so we feel certain that he would have como to a different conclusion. Mr, Kifunda, the learnei advocate for the Republic, rightly in our view, declined to support the conviction of this appellant. - 3 - The position, however, is different as regards the first and second appellants. There was the evidence of PW.6 to the effect that as he answered the alarm that night he came across the first appellant running in the opposite direction and carrying a gun. On asking him what was happening, the appellant threatened to h a m him if he mentioned him. 'Aiere was also evidence that the first appellant responded to the alarm late that night even though he did not live far from the scene. Then there was the evidence of PW.p to t::.3 offset that the first and second appellants were among the group of people who br®ke open the door of her house and forced her and her husband to march ts the house of PW.1. The appellants are fellow villagers who were well known to her before the incident. She said that she recognised them through the torch light which they were flashing, through moonlight and through their voices when they spoke to her and to P W , 1 . However, we think the more reliable part of her evidence x^hich can be taken to corroborate the evidence of identification by PW.1 and PW.2 is her identification of 1st and 2nd appellants through moon­ light and their voices when they spoke to her and to P W . 1 . Mr. Mbezi contended that the evidence of PV/.6 and PW.3 did not adequately corroborate that of PW.1 and PW.2. However it should be b o m in mind that this is a second appeal vrhe‘ ?e o:ily points of law can be raised or entertained. Ones both courts below found as they did that tlio evidence of PW.6 and, we nay aid that of FVf.J, did support that of PW.1 and PW.2 on the identification of the first appellant, the question of sufficiency or otherwise of such supporting evi^cice is one of fact, and this Court will not entertain it even if vo toe : the view that had we tried the case ourselves we might have co::.z tj a different conclusion. 4 Admittedly both courts below did not specifically consider whether the identification of the second appellant by PW.1 and PW..2 was supported by any other evidence. This was obviously a non- direction;, bearing in mini that the conditions of the second appellant’ s identification by PW.1 and PW.2 did not favour correct identification. However, as shown above, the evidence of PW.3 did support that of FW.1 and PV.2 as to the identification of the second appellant, and had both courts below duly directed themselves on the matter, we are confident that they would have so found. In the result, for the reasons set out above, we allow the appeal of the third appellant, Wami Mkanje. His conviction is qviashed and the sentence passed on him is set aside. He is to be set free forthwith unless he is otherwise lav/fully held in custody. The appeals of the first and second appellants, Simon TCilirabe and Ernest Mcutani, fail and they are dismissed in their entirety. UATED AT TO "DOHA THIS 8TH UAY OF MAY, 1995 . R. H. KISAHGA A g . CHIEF JU S TICE A.S.L. HAMATIAMI JUSTICE OF APPEAL L. M. MFAIILA JUSTICE OF APPEAL I certify that this Is a true copy of the original