20050914 TZHC Dar es Salaam

fI i - .... ~ ..._.,,.,,.,---- .. L-~· IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CRIMINAL APPEAL N0.157 OF 2004 (Original Criminal Case No.100 of 2003 in the District Court of Mkuranga at Mkurunga THABIT SHANI NJAPE ..................... APPELLANT VERSUS THE UNITED REPUBLIC ................. RESPONDENT JUDGMENT MANENTO, JK: The appellant Thabit Shani Nyape has been charged of the offence termed robbery with violence els 285 and 286 of the Penal Code. He was found guilty and convicted. He was also sentenced to serve a prison. sentence of fifteen (15) years. On reaching at the prison, he informed the authority of his intention to appeal. He thereafter, lodged this appeal, challenging both the conviction and the sentence. He appeared in person during the hearing of the appeal and he made, though short submissions, but strong enough to attract a detailed judgment, especially on the procedure of conducting an identification parade. The Republic raised doubts on the 2 ·• . credibility of the two prosecution witnesses, who were infact, the complainants, so they did not support the conviction. The facts of the charge were briefly that the accused, on 12/10/2003 at 7.30 hours a J\!Iwanambaya village within Mkuranga District, Coastal Region did steal cash sh.50,000/= golden chain, earrings and a piece of cloth all valued at shs.166, 100/= the property of Doris Katiale. The prosecution evidence which led to the conviction of the accused was that, the accused together with another person who is/was at large, did ambush the complainant who was walking alone, and threatened them with a knife. While the person at large held a knife to PW2 Ashura, the accused robbed Doris Katiale PWl of her properties. They raised an alarm. The accused and his friend ran away. Villagers of Mwanambaya village came to the scene of the crime. However, non of the villagers saw the accused person and his friend. Sometimes, the accused was arrested, and the complainant Doris (PWl) and Ashura PW2 went to the police station, where an identification parade was conducted. The accused person was identified, and charged. The accused who pleaded not guilty to the charge complained before the trial court and before this court during the appeal that the so called identification parade was not conducted properly. He was pinpointed to the identifying person before he was identified. He had pleaded the 3 ._; t.1 .. defence of alibi, even though he did not call any witness in support of his allegations. The trial court believed the evidence of both PWI Doris and that of PW2 Ashura. The learned Resident Magistrate did not address his mind to the accused's complaint, on the way he was identified and how he was arrested in connection with the offence. Thus, being aggrieved by that decision, he filed this petition of appeal with three grounds of appeal. In the ground No.I of appeal, he said I ( a) The trial learned magistrate erred in law and fact to believe that he was properly identified at the identification parade at the police station. (b) That there was no identification parade register (form No.186) to show the conduct of the said identification parade. ( c) No police officer who conducted the parade was called as a witness. (2) That there were no any eye witness who had seen the accused running after robbing the complainants as alleged by the complainant. 4 Ground No.3 is about lack of exhibits and ground No.4 is about conviction based on the weakness of the accused's evidence. The learned state attorney submitted for the first ground of appeal that there was an identification parade, because even the accused himself conceded to it. I think the learned state attorney misconceived the gist of the complaint. The accused submitted that the alleged identification parade was not conducted properly. He said that there was no witness called to witness, that he had been pointed out to the complainants and the identification was therefore just a formality. Not only that, but he said that neither the police officer who conducted the parade was called to explain the procedure he took in the conduct of the parade, or even the identification register was not brought to court as evidence. Probably, had it been produced to the court by a person authorized to conduct the parade, the position of the accused could have been shown, first when he was identified by the PW 1 Doris and secondly PW2 Ashura. That police officer would have told the court the place where the witnesses were before they identified the accused and how many people were in the parade and their standard of life if the same or different. In short, the procedure was not followed. For future ease of reference to those who will be interested, I hereby reproduce the procedure, which, though applies to Kenya, should also be applicable in this country. .J ..J ... 5 t:' - ,. That is found in Republic V. Mwango Manaa (1938) EACA 29 (note that the Law Report is for 193 6 - 193 8 with volumes II-IV) INSTRUCTIONS FOR IDENTIFICATION PARADES 1. That the accused person is always informed that he may have a solicitor or friend present when the parade takes place. 2. That the officer incharge of the case, although he may be present, does not carry out the identification. 3. That the witnesses do not see the accused before the parade. 4. That the accused is placed among at least eight persons, as far as possible of similar age, height, general appearance and class of life as himself or herself. 5. That the accused is allowed to take any position he chooses, and that he is allowed to change his position after each identifying witness has left, if he so desires. 6. Care to be exercised that the witnesses are not allowed to communicate with each other after they have been to the parade. 7. Exclude every person who has no business there. 8. Make a careful note after each witness leaves the parade, recording whether the witness identifies or other circumstances. '• 6 J .. 9. If the witness desires to see the accused walk, hear him speak, see him with his hat on or off, see that this done. As a precautionary measure . it is suggested the whole parade be asked to do this. 10. See that the witness touches the person he identifies 11. At the termination of the parade or during the parade ask the accused if he is satisfied that the parade is being conducted in a fair manner and make a note of his reply. 12. In introducing the witness tell him that he will see a group of people . who may not contain the suspected person. Don't say, "Pick out somebody" or influence him in any way whatever. 13. Act with scrupulous fairness, otherwise the value of the identification as evidence will depreciate considerably. Usually, those procedures laid down above are found in the police order. It is the police who conducts those parades in the cause of their investigation in criminal cases. In the case before the trial court, it was not shown in any way whether the procedure in conducting the identification parade was at least followed. Thus, it is fair, in the absence of evidence from the prosecution, to agree with the accused that the procedure in the conduct of the identification parade was not followed. Secondly, the time when the offence was alleged done was already right time and in the absence 7 ... of any evidence from the PWl Doris and PW2 Ashura as to how they identified the accused, then their evidence is doubtful as far as identification is concerned. Thirdly, the discrepancies in the prosecution witness as to what they were going to do at Mkuranga weakens further the prosecution case. Whereas PW 1 Doris said that they were business women, going to buy coconuts, PW2 Ashura told the court that they were going to the farms for cultivation. They could not differ in any way as to the purpose of their safari. All those weakened the prosecution case. The issue about non production of the exhibits has no basis. Money and golden wears are fast moving items that they can charge hands even five times in few hours if not days. Though on different reasons, I agree with the Republic that the accused person was entitled to the benefits of doubts or in other words, the prosecution had failed to prove their case beyond reasonable doubts. The appeal is then allowed. It is ordered that the accused be released forthwith unless otherwise . , . lawfully wi~~held. JAJI KIONGOZI. 2/9/2005 8 ... ,., 14-9-2005 Coram: A.A.M. Shayo, RHC For Respondent: Mr. Sedekia State Attorney Applicant: Present in person. Cc: Claudius Order: Judgment delivered today in the presence of Mr. Sedakia, State Attorney for respondent, R epublic and the appellant in person. A.A.M. Shayo REGISTRAR HIGH COURT 14/9/05