20010629 TZHC Mwanza

IN THE HIGH COUDT OF TANZANIA AT MWANZA APPELLATE JURISDICTION ( HIGH COURI' CRIMINAL APPBAL NO. 153 OF .1999 • T' (Original Criminal Ca..se Noo 261 of 1998 .of: the District Court of. Bunda District at: Bunda. Before: J, ::~ttoh:: Esq,, DM.) RAPHAEL MASHASHU 0000••••••••••••••••••••••••~ A:~ELLANT (Original Accused) Versus THE REPUBLIC oo&oooaooooooooooc-onoooo~oo&ool'too R,1i:SPONDENI' (Original Prosecutor) JUDGMENT Charge: Robbery with violence c/s 285 and 286 of the Penal Code Cap .. 16 0 KATITI, J. It is defying challenge, that on the 15/12/1998, at about midnight, the complainant PW1 MDAGA.11.f.BWEME S/O MJITA, in his house, he was invaded by six bandits, after, the door to his house was broken open, by use of a big stone commonly called FATUMA. The complainant P\,11 and his bedmate, claimed to have identified, the appellant through torch flashlight, by .the thugs, or bandits. The appellGnt denied being involved, in the commission of the charged serious offence. The trial magistrate, convinced by the prosecution evidence, rejected the defence·and convicted as charged, and sentenced the appellant to thirty years imprisonment, and twenty four strokes of corporal punishment.• ;• The appellant aggrieved has appealed against conviction. The appellant's main thrust of his contention against conviction, being that identification left alot to be desired, e.nd that it t,as not water-tight. The learned State Attorney Rafael Mashushu, declined to support conviction, for reason that identification of the appellant with the crime, was not mistake proof or error proof~ . ,- :~ • •1: i ... 2 I have had ample time, to scrutinise the evidence and the line _~i,~if"~Q'ril~~ of thought of the trfa.l magis{rate, and it does appear, he was hazzy about th· identification of the invader~~ under circwnstances 9 of night_. He does not appear, to have dutifu'.Ly and purposefully directed his judicial mind~ to the same examihatibn deeper4 I shall demonstrate this presently~ 1 "It appeaTs that, PWl and PJ/?:,.cla~~d to have identified the appellant, !hrough' torch . : t . . ---~ ........... -~- flashlight, but, unH,ss, the evidence goes further to sh6t./~-. fo'r•now long ' the bandit fla$hed n(t intoihis face, or that, there were several lit torches beipg used ir. -=- same room,. and for a long while, on which the trial It would be unsafe to rely on such evidence, 0 1 magistrate _metted n~ treatment/ to convict - seE:, _N¥ICi0SA MASOL'~L VS .. Re ('..?7~J 0 L.,R. ~1_.,_~6. Further, both PH't, ,, ,;·. ••, PW2 made na~ed assertio~s, that they identified the appellant, without going further to say how they tid it, -- no description of attire, or special features on him •. It has repeatedly been said, I say it again, that bare assertion as in this case, as tc recognition, without confirmt,tory material, or details 1 is not enought -- ~~e_e_JQ~DA s.,(Q MGAZI ( 1972) ..:1LoC ~2?.!.J\f~2_<)r6_o One, shallowly looking at the evidence\ w~mld easily think, that PW2 did corroborate PW1. I would say that this is not necessarily the case, in particular this case, -1- PW1 and PW2, then s:eeping on the same bed, under the sarne prevailing circumstances, would :=i.l: be susceptible to the same identification difficultic 0 ., and -2~. the two, under ~he influence of the other, or independently, had an interest to serve to '.'lave the appellant convicted, -3- the chances of one influencing the other, t¢• concoct evidence, against the· appellant to secure conviction, cannot be ruleso From the generality of the above,· I do agree with the learned State Attorney, thnt, the conviction is not safe. The appeal is therefore allowed, conviction is therefore quashed, eentence set aside; the.appellant to be set free unless otherwise lawfully hel_d. Delivered this Q. • • • 0 day of May, 2001. E. \.,7 KATITI 0 MWANZA -~ JUDGE .,, ... ' - 3 At t o'rney_. :i,:3/'C: .:rfr .. Bahn.ti Kiyumbi. Judgement deliyl:red this 29th day of June, 2001 in the presence o:t'Mr~ .Deus± - Stat~ Att'orney fo1~ Republic. CC: Bah13.ti Kiyumbio Right of Appeai F.:xp'laine'rlo A~ No LYAMUYA DIS'l'RICT.RSGLSTHAR 29/6/2001 ,-, :