wilbard daniel others vs republic 2005 tzhc 290 31 october 2005

IN THE HIGH COURT OF TANZANIA AT MOSHI (DC) CRIMINAL APPEAL NO. 76 OF 2003 C/F ORIGINAL D/C ROMBO CR.C.NO. 310/2001 WILBARD DANIEL & OTHERS......... APPELLANTS VERSUS THE REPUBLIC.................................... RESPONDENT JUDGEMENT HON. JUNDU, J. The Appellants, in the trial court, were charged with Armed Robbery c/ss 285 and 286. The particulars of the offence were that the Appellants on 18/12/2000 at 01.00 hours at Olele Mashati within Rombo District in Kilimanjaro Region did steal various properties valued at shs. 717.800/= belonging to the complainant one Agatha w/o Justin and immediately before such armed robbery they assaulted the complainant on her legs and her head by using a panga in order to obtain the said properties. Having heard the evidence of the prosecution witnesses and the Appellants’ witnesses, the trial court found the Appellants guilty of the offence charged, convicted them and sentenced them to 30 years imprisonment each. The Appellants having been aggrieved by the conviction and sentence imposed upon them by the trial magistrate, they have appealed to this court vide (DC) Criminal Appeal No. 76 of 2003 for the first Appellant; (DC) Criminal Appeal No. 77 of 2003 for the second Appellant and (DC) Criminal Appeal No. 78 of 2003 for the third Appellant. However, by consent, the three appeals were consolidated on 15/9/2003 under (DC) Criminal Appeal No. 76 of 2003. The Appellants prosecuted their consolidated appeal by themselves while the Republic was represented by Miss Mlay, learned State Attorney. Having carefully studied the three consolidated appeals, it is my considered view that the issue that arises in these appeals is lack of identification as submitted by Miss Mlay in his submission. This is in two senses, lack of identification of the Appellants and lack of identification of the stolen properties. Based on these points, Miss Mlay, learned State Attorney did not support conviction and sentence. First, let us deal with lack of identification of the Appellants as contended in their appeal. The record of the trial court as rightly submitted by Miss Mlay shows that the prosecution had called two witnesses P.W. 5 and P.W.6 who testified in the lower court both who alleged to have been present at the scene of the commission of the crime. PW.5 had testified in the said court that during the material night he heard voices of people outside hence he woke up and put on his torch but the alleged people broke the door of his house and put off the lamp and that they had a torch. PW.5 j in his evidence testified that the said people were six in number and that some of them were wearing big hats. However, the said witness had alleged in his evidence that he had identified the Appellants in the trial court though he stated that he did not know the Appellants before the commission of the offence. PW. 6 in his evidence at the trial court had alleged that the Appellants had made the ambush while he was a sleep and that he could identify them. In my considered view, I quite agree with the Appellants and the submission of Miss Mlay that the conditions at the scene of the commission of the crime on the material night did not favour proper and correct identification of the Appellants. I so hold because the light from the torch was not effective or adequate enough to enable proper and correct identification of the Appellants during the said night. This position finds support in the decision of the Court of Appeal in the case of Mohamed Musero V. Republic [1993] TLR 290 where the said court held that torch light is not effective to identify thieves during night. Secondly, let us consider the issue of identification of the stolen properties. The Appellants as well as the Republic have contended that there was no proper and correct identification of the stolen properties. The record of the trial court as rightly submitted by Miss Mlay shows that the prosecution had called two witnesses PW.3 and PW.4 at the trial court in respect of this issue. PW.3 in his evidence testified that he heard that the first Appellant had the stolen properties and that the said witness and others had gone to the house of the said Appellant and found some of the stolen properties at the farm of the said Appellant. PW.3 further stated in his evidence at the trial court that they had gone to the second Appellant and on searching his house they found some of the stolen properties to wit padlock, wrist watch and mattress. PW.4 had testified further that the mattress had no special mark but had insisted that it was the one stolen from the scene of the commission of the crime. Even for the padlock and the wrist watch, the said witness in his evidence at the trial court alleged that it was among of the properties that were stolen from the scene of the crime but it was not clear how the said witness had identified them. PW.4 had testified further in the said court that they had gone to the third Appellant and on searching him they found a sword and a wall clock and that he identified the sword as his but the cover was tom up and that he identified the wall clock as it was new like his. However, the said witness on being cross - examined by the third Appellant, he told the trial magistrate that he had told the police of the said marks of his properties after he had identified them. The record of the trial court shows further that PW.4 was the policemen who supervised the search and told the trial magistrate that the stolen properties were found and that the complainant had identified them. In my considered view and as submitted by Miss Mlay to state merely that one had identified properties that were found with the Appellants does not suffice for purposes of proper and correct identification of the said properties. The witness (PW.4) in my considered view had to further in his evidence to state how he had identified the stolen properties say by colour, special marks or production of receipts with numbers resembling numbers in the stolen properties. Further, I quite agree with the submission of Miss Mlay, learned State Attorney, that the contention of the witness that they had found the stolen properties in the farm of the First Appellant without giving identification details or descriptions is not sufficient to conclude that the said Appellant was the one who had stolen them because the prosecution was required to go further and state evidence of identification of the stolen properties otherwise anybody other than the Appellant could have put or sent the said properties there at the farm during the night of the commission of the crime. In short, I uphold the contention of the Appellants which the Republic has supported that there was no proper and correct identification of the Appellants during the night of the commission of the crime and there was no proper and correct identification of the stolen properties by the prosecution witnesses as I have stated above. Therefore, I find that the consolidated appeals by the Appellants have merit and I accordingly allow them as consolidated. I hereby quash and set aside the conviction and the sentence imposed on the Appellants by the trial magistrate. The Appellants are hereby set free unless lawfully held under the law. It is so ordered. F.A.R. JUNDU, JUDGE, 31.10.2005 Right of Appeal Explained. F.A.R. JUNDU, JUDGE, 31.10.2005 31.10.2005 Coram:- F.A.R. Jundu, J. For the 1st Appellant - present For the 2nd Appellant - present For the 3rd Appellant - present For the Republic - Mr. Rwegerera, State Attorney. C/C - Kimario Court:- Judgement delivered in the presence of the 1st, 2nd and 3rd Appellants and in the presence of Mr. Rwegerera, learned State Attorney for the Republic/Respondent. ^ F.A.R. j u n d u ' A / 'V JUDGE, y-;. »} fT 1 31.10.2005 ; -J'V. AT MOSHI. \