emanuel george temu others vs republic 2006 tzhc 329 24 july 2006

IN THE HIGH COURT OF TANZANIA AT MOSHI (DC) CRIMINAL APPEAL NO. 129 OF 2003 (C/F DC HAI CR. CASE NO. 414/2002) 1. EMANUEL GEORGE TEMU ) 2. PATRICK JOSEPH KISHE )........... APPELLANTS 3. VALVIN GASPER ) VERSUS THE REPUBLIC.................................. RESPONDENT JUDGMENT HON. JUNDU. J. In the trial court, the three Appellants were charged with Armed Robbery c/s 285 and 286 of the Penal Code, Cap. 16, Vol. 1 of the laws as amended by Act No. 10 of 1989. The particulars of the offence were that the Appellants jointly and together on 8th day of October, 2002 at about 23:00 hours at Sanya Juu Village within Hai District in Kilimanjaro Region did steal cash money T.shs.823,108/= the property of Kisambu Farm and immediately before or immediately after the time of such stealing did threaten by shortgun one Thiodomiri s/o Michael and Augustino s/o Ashelly in order to obtain or retain the stolen property. Having heard the evidence of the prosecution witnesses and the defence, the trial magistrate evaluated the evidence as follows “On the facts on record I find that there was an armed robbery at Sanya Juu Petrol Station. I find that both P.W.l and P.W.2 were threatened by a short gun and other weapons panga and sime though these weapons were not seized. Also I find that both P.W.l and P.W.2 were on duty that night. The facts on record show that neither P.W.l nor P.W.2 knew the accused before. In this connection, I see no cause why they should have created the facts against the accused. The whole issue rely on the identification of the assailants. There was good and bright electricity. The incident took about two hours from 11.00 p.m. to 1.00 a.m. P.W.l - 2 had ample time to watch and mark their assailants. D.W.4 admit that Exhibit D is the property of the 1st accused. P.W.2 clearly said apart from the others he marked that the 1st accused wore white shoes. Accused said nothing in connection with the date, day and time of the occurrence. Both P.W.l - 2 managed to identify all the accused at the parade. After reading the statement of both 1st accused and 3rd accused, I am satisfied that all the accused were involved in the robbery and so I convict all of them as charged”. Having convicted them, he sentenced each of the Appellant to thirty (30) years imprisonment and ordered them to compensate the owner of the Petrol Station the stolen money the property and the loss he incurred. Having been aggrieved with the conviction, sentence and the compensation order imposed on them by the trial magistrate, the Appellants have appealed to this court listing eight (8) grounds of appeal in their Memorandum of Appeal filed in this court namely:- (1) That the learned Principal Resident Magistrate erred in both law and fact for convicting the Appellants solely on uncorroborated and unreliable visual identification of the prosecution witnesses. (2) That the learned magistrate erred in law for not considering that the identification of the Appellants by the prosecution side was improper hence during cross - examination the j prosecution witnesses claimed that when the robbers entered at the office they were forced to be tied down and were covered with mattress and bed sheet this clearly shows that, they couldn’t have a good chance of identifying the assailants properly. (3) That the point of law regarding to the ingredient constituting the offence of Robbery was not proved properly to the Appellants and so convicting the Appellants was against the law. (4) That the learned magistrate failed to note that the identification of the Appellants by P.W.2 was concocted by the witness for his own benefit e.g. refer to page 3 paragraph one of copy of judgment. (5) That the investigator of the case erred in law and fact for tendering Exhibit D before the court without considering that the white rubber shoe is not only worn by the Appellant himself. It is manufactured by the company for any person who wishes to own it. Therefore, the exhibit has nothing to do with this charge. (6) That the learned magistrate erred in law and fact for not warning himself before accepting the evidence of the investigator how he used his technic in arresting the Appellants. None of the prosecution witnesses who happens to know the Appellant before, the Appellants were not arrested at the scene of crime or in possession of the complainant’s property, the Appellants were not mentioned by any witness therefore his evidence was just a framed issued which evidence was just a framed issue which could not warrant conviction to the Appellants. (7) That the learned magistrate convicted the Appellants basing on suspicions and opportunity which is a mandatory error in law. (8) That the learned magistrate gravely erred in both law and fact for ignoring the defence evidence of the Appellants and taking into consideration that the prosecution evidence was weak and overtaken by the defence evidence. Based on the above named grounds of appeal, the Appellants in their Memorandum of Appeal have prayed to this court to allow the appeal, quash and set aside the conviction, sentence and compensation order and order for their immediate release from the prison. On 3/5/2006, the appeal was heard by this court. Each of the Appellant in his presentation simply stated that what was stated in their grounds of appeal in their Memorandum of Appeal filed in this court sufficed as their arguments in support of their appeal. On the other hand, Miss Mlay, learned State Attorney who appeared for and represented the Republic/Respondent in her submission did not support conviction, sentence and the compensation order imposed on the Appellants by the trial magistrate. Though the Appellants listed eight (8) grounds of appeal in their Memorandum of Appeal filed in this court, I quite agree with the submission of the learned State Attorney that the appeal can be disposed off on one main issue, that is the issue of identification of the Appellants at the scene of the crime. This issue is subject of grounds 1, 2, 4 and 5 of the appeal in the Memorandum of Appeal filed by the Appellants in this court. Miss Mlay, the learned State Attorney made very lucid submission on the said issue of identification of the Appellants by the prosecution witnesses namely P.W.l and P.W.2 who were the only witnesses present at the scene of the crime on the material night when the incident of robbery occurred. In his evaluation of the evidence, the trial magistrate had held that P.W.l and P.W.2 had identified the Appellants at the scene of the crime during the material night, that is on 8th day of October, 2002 at 23.00 hours because there was good and bright electricity light, the incident took about two hours from 11.00 p.m to 1.00 a.m., P.W.2 had identified the white shoe which the 1st Appellant had worn and that P.W.l - 2 identified the Appellants at the identification parade. I have looked at the evidence of the said prosecution witnesses on record. It is true as submitted by Miss Mlay, the learned State Attorney that the incident of the armed robbery took place on 8th October, 2002 at 23.00 hours during the night and that both P.W.l and P.W.2 were the only prosecution witnesses present at the scene of the crime. In their evidence, both of the said witnesses testified in the trial court that there was electricity light hence it enabled them to identify the Appellants and that they identified them by their appearances. As I have already stated, P.W.l also contended that he had identified the 1st Appellant by his white shoe which was tendered in the trial court and admitted as Exhibit D. In their evidence, both witnesses testified that the incident of robbery took longtime that is from 23.00 hours to 1.00 a.m. hence it enabled them to identify the Appellants. In their evidence both P.W.l and P.W.2 testified in the trial court that when the incident was taking place, the Appellants had covered them with a mattress which they had poured paraffirm oil and had threatened to bum them and that it was their first time to see them on the said material night. Though the said witnesses alleged to have identified the Appellants by their appearances, I quite agree with Miss Mlay in her submission that in law this is not sufficient identification. P.W.l and P.W.2 in their evidence ought to have stated how they had infact identified the Appellants. They ought to have given descriptions of their identification of the Appellants and the term of that description for example by stating what clothes the Appellants worn and stating any special mark on the Appellants which could be used to identify them. This is much fortified by the evidence of P.W.l and P.W.2 that the incident took a long time from 23.00 hours to 1.00 a.m, hence in my considered view it was sufficient time which could have enabled P.W.l and P.W.2 to give descriptions of the Appellants, in their identification. Therefore, I quite agree with the submission of Miss Mlay, the learned State Attorney that the failure of P.W.l and P.W.2 to give descriptions and the term of their description on their alleged identification of the Appellants had weakened the evidence of the said prosecution witnesses on the issue of identification of the Appellants. I had earlier stated that P.W.l in his evidence at the trial court had testified that he had identified the shoe of the 1st Appellant that it was a white rubber shoe and that the 1st Appellant had put on the same shoe(s) on the day he was arrested on 14/2/2002. However, I quite agree with the submission of Miss Mlay that the said identification was not watertight or sufficient. It was not established that it was only the Appellant who had such shoe(s) not did the said witness state special mark or description on the said shoes(s) so that one could conclude that the shoe (s) was necessarily that of the 1st Appellant and the one that he had put on at the scene of the crime on the material night. Further, my perusal of the evidence on record shows that the Appellants having been arrested on previous dates they were later on placed for identification parade. P.W.l in his evidence testified that he had identified the 1st Appellant in the said identification parade. However, the said witness in his evidence did not state now he had identified the said Appellant. P.W.4, the police investigator in his evidence testified that he had witnessed the identification parade. However, as submitted by Miss Mlay, the said witness in his evidence did not tell the trial magistrate how the said identification parade was conducted, how the Appellants were placed in the said parade and who else were placed with the Appellants in the said parade. In my considered view, the failure of the said witness to state all the said factors makes it difficult for this court to conclude that the said identification parade was properly conducted. Having stated all the above shortfalls in the evidence of the prosecution witnesses in respect of identification of the Appellants at the scene of the crime as well as on the identification parade, I find and hold that the appeal by the Appellants filed in this court has merit. I hereby allow the same. I quash and set aside the conviction, sentence and the compensation order 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 24/7/2006 Right of Appeal Explained. F.A.R. JUNDU JUDGE 24/7/2006 24.7.2006 Coram: F.A.R. Jundu, J. For the 1st Appellant: present For the 2nd Appellant: present For the 3rd Appellant: present For the Respondent: Miss Rugaihuruza, State Attorney C/C: Matiku Court: Judgment delivered in the presence of the 1st, 2nd and 3rd Appellants and in the presence of Miss Rugaihuruza, learned State Attorney for the Republic/Respondent. F.A.R. JUNDU JUDGE 24/7/2006 AT MOSHI j