20010515 TZHC Mbeya

.,, m THE HIGH COUR'r OF TANZANIA AT MBEYA O~IGINAL JURISDICTION (Mbeya Registry) (DC) CRIMINAL APPEAL NOo 43 OF 2000 (Original Criminal Case Noo ,508 of 1998 of Mbeya District Court at Mbeya) AYUB KAPINGA APPELLi\N';l' Versus ·THE REPUBLIC RESPONDENT JUOOEMENT The appellant was charged with and convicted of Burglary and Stealing · contrary to section 291+ ( 1) and 264 of the Penal Code and was sentenced to three (3) and (1) year' imprisonment r·espectively. The sentences were ordered to run concurrently~· Dissatisfied with the' conviction and the sentence he is appealing to this court. In the present case soine violent intrus'ic;m was made at the house of the complainant one Jiuna Dallas Zongo (PtJ o 1) ,at Forest area within the Municipality of Mbeya on the ~ight of 30th June 1998. The complainant was fast asleep. The intruders assaulted the complainant and made ~way ~ith properties worth s~.300,000/:::. The properties iricluded a music system; two speakers, hot·. pots and several cooking utencils. According t~ the eviden~e the complainanf·was able to identify the appellant beeause • •• I •• • f'• - the appeliant was famiiiar to him and when invading the house he was in possession.of a torch. It is alleged that when an alarm was raised the appellant took to his heels but the search team noted boot marks at the complainant's window which led to the house of the appellant. Boots with similar impression were retrieved at the appellant's bed.side by the search team which included Detective Bonde (PWo3). The appellant's conviction Jas based on the evidence that the complainant identified the appellant with the aid of. a torch coupled with the evidence· of boot marks imprinted at the house of the complainant which .., led to the house of the appellant. Mr. Mkumbe who advocated for the appellant submitted that the appellant could,not have•sufficiently been identified by the·complainant. On the evidenee•of the boot impressions which led to. the house of. the appellant r from the house of the complainant, Mr. Mkumbe, learned Couns·el s'lll:mitted that the boot impression should. be ignored because there was no evidence to establish that only the appellant and no one else hnd the said boots. .... '· , ••• /2 f 2 That only the .?.p:pellant and no one el.ese passed through the house of the complainante The le.arned Counsel also submitted that there was no evidence to establish, conclus~vely i · that the boot marks found at the scene were of a certain type of boots. Mr. Mwenda, learned State Attorney, 11as submitted, that the evidence that the complainant had a torch -':Ind the fact ·that he knew the appellant sufficiently established·the identity of the appellant as one of the intruders. Concerning the boot ma1•ks, Mr:. Mwenda submitted th3t as the boot ma.rks led from the house of the c~mplainant to the house of the appellant coupled with the evidence that the,searchteam retrieved boots by the bed side of the appellant shows ,thr:it the.appellant was the intruder. It has time and a.ga.in been held that the evidence o-f visual identificationtf the weak· •kind and most unreliable. That: no court should act on eV'idence of'visual identification unless all possibilities of mistaken·identity are eliminated :md the court is fully satisfied that the evidence before it is absolutely watertight - See HltZIRI AM1\N V. Ro [(989J TLR 250 • In the present case the tr;i.aJ. magistrate .3pprecfated that the appellant I s conviction ·w::is based on the evidence of visual identification. The issue, therefore, to·be resolved is whether, on the evidence on record, the appellant was. sufficiently identified by the complainant. Although there are no hord and fast rules the cour~ has been r' ·•t admonished to closely examine the circumstances un~er which the witness managed to identify an accused person before grouf?.ding a convic~ion on ;eliancc· on visual identification. For example. the court h,'3s to direct its mind to'matters like, the time-under which the witness had the accused under observ~tion, the <iistance at which he observed the accused, the conditions under such obscrvc1t ion for instance if it was day or night t~me 1 v!hethe!' thP-re \·J:-:is e;ood or poor lighting at the scene; whether the witness knew or h,1d' knowfl the accused be fore or not. I intend to apply the above observations in the circumstances of the present C/3se. In the present case it is common ground that the invasion of the house of the co!Cpl!l.in~nt took pl::1.ce at night, therefore there was poor ' . lighting. The appellant is said to have been identified by the complainant by the aid of o torch but it is noted that the evidence shows that both the appellant and tho con1plainant h:::d torches. Under these circumstances, and in my s~rious and careful considera.tion of the evidence I have some doubt in my mind that the complainant properly and without any doubt identified "the appellant as the m~m i who intruded his house of th;:i fateful night., ~ 0 • • /3 - 3 - There is evidence of boot marks but on a ,· close and c.1reful examination of the evidence I am not satisfied. the evidence conclusively establish th~t the boot impression were those ~f the appellant in exclusion of no one else. It is my considered opinion that the evidence of identification of tho appellant is doubtful and the law requires me to resolve the doubt in f.3vour of the appellant. In the upshot, I allow the appe,:il ::md quash the conviction and set :::side the sentence. The appellant is to be released from custody forthwith unless otherwise lawful heldo It is accordingly so ordered. F. S. MSHOTE JUDGE 15/5/2001 Date: 15/5/2001 Coram: Hon. F. Mshote, Judge. For Appellant: Mr. Mkumbe - Advocate - Present. Appellant: Ayub Ka:pin.g,3. - Present. For Republic: Mr. Mwenda - State Attorney - Present. C/C: Lydia/Sote. Delivered this 15th May 2001.