20010522 TZHC Mbeya

- IN THE HIGH COUi;"ll OF ·T4NZANIA. A'l: MBEY,). ORIG:INAL JURI3DICTION · (Mbey;;i Registry) CRTI-iINAL APPE:AL NO. .41 01'--1 ·2000 ,(Original Criminal Case No.· 85 ,of 1999 : of the District Court of Mbara1i) I30RA s/o l\.t~DRE(J ) . · · , o ■■ oco ■ o ■ ooooo••~•~o APPELLANTS RIZilCI SHABAN!' )-· . · VERSUS THE REPUBLIC ••••• -.- ••• •. ~ •••• ·•••••••• ~ RESPONDENT ~--~ JUDGE!slli'N'I' !l§~~IOTE,1;.1_ ~ . The· appellants were charged and convicted of the Offence of Robbery · with Violence C/ss·. 285 an'.d 286 of the Pen:al ~ode._ They were each sentencbd to thirty (,30) years imprisonment. Aggrieved they now appeal against both the conviction and the sentence. At the trial there was undisputed evidence that on the night of 7/6/99 bandits raided the house of the complainant and made away with Cash .Shsir1.50,000/~, The cornpla.i~~nt ,Marcus Kahango (PW .-i) is_ a businessman and a resident· of 'Muungano village within Mbarali District. It is elleged that p;~.1 is a. · Medical Assistant and owns e pharmacy. The issue at :the tria1 was whether . the a-ppelbnts were identified as being ·:the bsndits. According to the son of the complainant P~J.tri-Qk Kohango (P.:! .2) · .on \ the fateful. night while asleep he heard gun s·hots. · Then suddenly the door of the pharmacy was forced oian. He further stated that,whtn he I' woke up one of the raiders entered inside and deri.c:inded to be given money. He said thet the other bandit remained outside• He was then cl.ru~ged outside_ while being assaulted. ·when one .?of..the bandits entered- inside while the other. rE:rnained outside guarding him subs~quent, he statecl, he was locked inside and the bandits flee away with money.. P~J, 1 · steted that - •·-~ he only identified the 1st appellant with the nid of. a lamp which wo~ lit at the room. Fl:/ .2 also .et=1ted tha.t 20/7/99 he ide~tified the 1st appellant at the identi!ic'.:l.tion parade. The second identifying' _wilness Frank Ngomoka (P~! e3) stated that ; ' : when the bBndits broke into the house they drugged Patrick Kahengo outside while he himself remained inside. He stated, further, that P~-l 0 2 Wa/J 13ter returned inside by the bandits and both of them were locked inside, Pt,1 .3 further stated that he only· identified the 2nd appellant by i - 2 - aid of a lamp which was lit in the ro9m 8lthough it was his first ti~e to see tb.e 2nd ap1)ellc=in:t. PW.3 concluded his ev_idence by stating that on 20/7/99 he identified th0 2nd appellant .3t the_ identification para.de. The last identifying witness was M~thfos Lyoba (P:J ~-) • On his part the witness stated that ~n the - f,~teful night he heard gun shots from the direction of the house of the complairt~nts. Although he was frightened he took a panga and a torch and proceeded to the scene. At the scene he allegedly saw'-two people carrying P\-J.2 but when he lighted a toi·ch the two people took to their heels. Pt-J.4 claimed that he identified the 2nd appellant 9t the scene and later at the identification parade on 20/7/99. Th,e learned ·st'.::ite .~ttorney, Mr. _Mulukozi, declined to support the com·iction brc;cause of tho u."lSatisfactory nature of the identification. He submitted thDt although PHo2, PW.3 .nnd PW.4 said they identified the appellants, by ·the aid of n bmp, it wos .'.their first time to see the appellants and did not give 1J.ny description of the appellants facial nttire et cetera. Concerning the identificotion parade he subfuitted that the appellants were purportedly identified at an identification :pnrade but the . witness'es hed not given any descriptions and therefore th~rtc. . was no link ' ' between the -identification at the seen~ and at the identification parade. I must remark at the outset that bo~,)rc basing ,a conv_iction solely_ on evidence of vis•19l identification, such evidence must remove all possibilities of m'isbken identity and the court must be fully sstisfied that the evidence is water-tight. (See R. v. Eri,:\ Sebwato /1960/ EA 174). Tha.t })rinciple has been reiterated by the Court of Appe9l of l'anzal'J.fa, in the cose of Waziri Amani V. R. , ( 1980) TLR. 250. In the .present case it is noted th11t the triDl m3gistrate did not carefully nnalyse the evidence of identification. As corJ;>ec:~i, observed by the learned Stnte Attorney, Mr o Mulokozi although PW .2, P1••J .3 :md l'W .4 · s1:11d tney ide~tified the :?ippella.nts with the nid of a larnr,," it is noted. that it wo.s their first time to see the appellants onrl did not give ·P.tny ·' descriptions of the ,,:ppellclnts I facial, attir.o et eetera 1:1hich evidence would link them with their identific:Jtion at the identificntion parade. Unfortu- nc:ite:[y the three witnesses hod not given t'J.ny descriptions of the sppellEmts nnd therefore there was no link between .their purported identification nt the scene and at the idontificntion p3rode. In my considered opinion, therefore, the evidence of identification did not meet the 1 test _required., In tf'le upshot, 'I allow' the appcsls, quash the convictions, and .. - 3 - set ;;i.side the sentEmces. The appellants should be release immedi8tely if they <'Ire not otherwise lawfully in custody• It is so or<lered. F. So MSHOT.E JUDGE 22/5/2001 .,, Coram: Hon. Mshote, J. Appellant: Pre.sent (Riziki Shnbani) For Respondent: Mr. Halata - Sta.te Attorney ,,, present. C/C: Lydia/Cote. Delivered this 22nd May 2001·. F~ S. MSHOTE JUDGE 22/5/2001 CERTIFIED TRUE COPY OF TEE ORIGIH:',.L JUDGEMENT. :1'! ;. f l i .. L .......------..ll...,. : . /\J DIS'rRICT REGIS'IRAR