20061201 TZHC Moshi

J IN THE HIGH COURT OF TANZANIA ATMOSHI (DC) CRIMINAL APPEAL NO. 124 OF 2003 ORIG. CR. NO.564 OF 2003 DISTRICT COURT MOSHI SHABAN! MAKWES} . . · APPELLANT OMARY.MSEBO VERSUS THE REPUBLIC ............... RESPONDENT JUDGMENT ·MWAIKUGILE, J. In the District Court of Moshi at Moshi SHAABANI MAKWESA. and OMARY MSEBO the 1st and 2 nd Appellants respectively and three ~thers who were found not guilty were jointly and together charged with ·offence of Robbery with violence contrary to Section 285 and 2·86 of the Penal Code, Cap.16 Vol. I of the Laws in that on the 1st day, of June, 2002 at about 19.00 hours at KATANINI CHEKERENI in Moshi Rural District within Kilimanjaro Region, the Appellants did steal cash Shs.125, 000/= one ORIS WRIST watch all total ·. valued at Shs.155, 000/= the property of Thomas Temba {The complainant) (PW.1) and immediately befo're and after such stealing, used actual violence against the complainant (P. W.1 ). The violence involved was the use of a panga to cut (PW.1) on his head and caused him to suffer several injuries in order to obtain and retain the said stolen property. · After trial of the case the appellants in this case were found guilty, \o convicted and sentenced to a statutory mandatory minimum sentence of (30) thirty years imprisonment. Over and above the custodial sentence imposed, the trial court also made an order for payment of compensation to the victim of the robbery (P.W.l) by the appellants in the sum of Shs.125, 000/=. The appellants were aggrieved by both conviction, sentence and compensation Order and this appeal is against that trial court decision. The complainant (PW. I) in his testimony stated that he was a Head teacher st ofKatanini Primary School at Chekereni Weruweru Village. On the 1 day of 1 June, 2002 at 9.00 a.m. he withdrew from the School Bank Account a sum of Shs. l 00,000/= for use on various school activities and when he drew the aforesaid sum of money, he also had his own cash in his pocket amounting to Shs.25,000/=. The Bank Account check book-Exh. P. "1" The witness further fl stated that at 6.30 p.m. he proceeded to school compound to check if the watchman had reported for duty and while on the way, before reaching the school at around 6.45 p.m. he met a gang of bandits who suddenly invaded and beat him up with an iron rod, cut him on his face with a knife thereby causing him to lose consciousness. The bandits ultimately made away with cash Shs.125, 000/= plus ORIS Wrist Watch. The matter was reported to Police Station where the complainant was issued with Police Form No.3 (Exh. P.2) and proceeded to Hospital where he was admitted and remained in hospital for eight days and discharged later. Hospital discharge card- Exh. P."3." According to the complainant, in a group of bandits that invaded him, he managed to identify the 1st and 2nd Appellants because he knew them before and in the circumstance, the suspects were eventually arrested and subsequently charged with the offence which they are now serving its sentence and against which this appeal has been lodged before this court .. When the charge was read over and explained to the appellants in a language understood by them they denied the charge. Both appellants did not make a specific denial to the offence charged with. They all made a general denial of being involved in the alleged offence. In appeal the appellants have raised seven grounds of appeal which in my view basically revolve on one main issue namely: (i) Visual identification and At the hearing, the appellants appeared in person. They were unrepresented whereas the Respondent Republic was represented by Mr. Rwegerela, learned State Attorney. The 1st and 2 nd Appellants have filed a joint memorandum of appeal and in a bid to submit in support of their appeal; both of them prayed the Court to adopt grounds of their appeal as part of their submission in support of their respective appeal and had nothing to add by way of elaboration. On the other hand, Mr. Rwegerela learned State Attorney for the Respondent pointed out right from the outset that he does not support conviction. 2 • On the issue of identification of the appellants it is on evidence on record that the offence was committed when darkness had started setting in, though PW.1 gave evidence to show that he identified both the 1st and 2nd Appellants. The evidence has it further that at a point where the incident took place there was tall maize vegetation which did not afford good environment for clear visibility. The surrounding circumstance at the scene of Crime was not favourable for easy and proper identification of the appellants, especially when one takes into account the fact that the sun had just started setting, as such therefore there was darkness in the surrounding environment of the scene of cnme. P.W.3 and PW.4 gave evidence before the trial court trying to show that the appellants were people whom they knew them before. So, when they saw them on the day of the incident that was not the first time. They are people who are well known to them. Nevertheless, none of the witness ever gave description of any of the said appellants to explain say their physique, what type of attire they wore when they saw them on the day of the incident. Mere allegation of prior knowledge of the appellants, that alone in my humble considered view is not enough to amount to proper identification of someone. Description of the person being identified helps a great deal in removing doubts and excludes possibility of mistaken identity. - In the case of Shiku Salehe V. R. [19871 TLR n. 173 the court held: "(i) Before basing a conviction solely on visual identification, such evidence must remove all possibilities of mistaken identity and the court must be satisfied that the conviction is water tight." In the light of the proceeding case law authority and in view of the evidence on record, I am far from convinced that the appellants were properly identified by the complainant (P.W.l), P.W.3 and P.W.4. There is total lack of description of the said appellants, how they looked like what sort of attire were they clad in when the witnesses saw them. All those descriptive details would greatly assist in proper identification of a person who is a subject of identification. In the case of Rashid Ally v. R [1987] TLR n.97 the court held: "(i) (ii) Description and terms of such description of the identification of the accused are matters of the highest importance of which evidence ought always to be given." 3 The evidence on record has fallen below the above test of proper identification. Having carefully studied the ground of appeal and the submissions on record in support of visual identification, I am satisfied and do find that the surrounding circumstance at the scene of crime did not provide favourable condition for proper identification of the appellants . . After careful perusal of the court case record I observed a procedural irregularity by the trial court in relation to the conduct of Preliminary hearing as provided for under section 192 sub-section 3 of the Criminal Procedure ct No.9 of 1985. The procedure provided for under section 192 of Act No.9 of 1985 is very clear. Preliminary hearing conducted by the trial court is reflected on pages 3 up to 4. After concluding a Preliminary hearing, what follows is the preparation of a memorandum of (Matters not in dispute) agreed facts: Once a memorandum has been drawn up, in terms of section 192 (3) of Act, 9/85 the same shall be read over and explained to the accused in a language that he understands. Having read over the memorandum of agreed facts, the accused will be invited to sign the document and if represented, his advocate will also sign and so is the Public Prosecutor. The purpose of this provision is to promote a fair and expeditious trial. Looking at the alleged Preliminary hearing of the trial court on record the same is not in line with the mandatory requirement of the law. On what is reflected on record, I am of the settled view that the trial court did not follow the mandatory requirement of section 192 (3) of Act No.9 of 1985. That said and on the basis of the reasons I have given hereinabove, I allow the appeal, quash conviction and set aside sentence imposed. I order the i . ase\,f the appell less \<lwfully held for some other offence. -----~ro,... ,>, ' GE 1/12/2006 Delivere m Chamber t day of December, 2006 in the presence of the 1 and 2nd appellants in perso st Maugo, l~med State Attorney for the Respondent Republic. lGE 1/12/2006 4