matata clemence vs republic 2007 tzhc 347 27 july 2007

IN THE HIGH COURT OF TANZANIA AT BUKOBA APPELLATE JURISDICTION CRIMINAL APPEAL NO. 11/2007 (Arising from Original Criminal Case No. 670/2000 from Biharamulo District Court - Before: IJ. Katela, Esq. DM) MATATA CLEMENCE....................................................................APPLICANT V/S THE REPUBLIC........................................................................RESPONDENT LYIMO. J, JUDGMENT. In this appeal, the accused Matata Clemence was jointly charged with eight (8) other accused persons at Biharamulo District Court, vide Criminal case No. 67 of 2000. He was the 2nd accused at the said trial. All the nine accused persons were charged with Robbery with violence under Section 285 and 286 of the Penal Code. At the close of the prosecution's case, the 4th, 6th, 7th, 8th and 9th were acquitted under Section 230 of the CPA on a finding of no case to answer. The 1st accused- Protas Wilfred, 2nd accused - Matata Clemence, 3rd Accused Laurian Buhebana and the 5th accused, Barusha Jeremiah all had a case to answer and these were put on defence. After the respective accused had each given evidence, at the end of defence case, the trial Magistrate gave his judgment and in the upshot the 1st, 2nd and 5th accused were convicted as charged. The 3rd accused was acquitted for lack of sufficient evidence. Following the said convictions, the trial Magistrate sentenced each to 15 years imprisonment. Going by the record, the 1st and 5th accused filed their appeals against conviction and sentences vide Bakoba Criminal Appeal Nos. 14 & 15 of 2001. The above appeals were consolidated and heard together as Bukoba H/C Criminal Appeal No. 14 of 2001. The said appeal was determined by this Court, Masanche, J. on 18/06/2003. During the hearing of the above appeal, the Court was informed that the 3rd convict - 2nd accused at the trial that one Laurian Buhebana (emphasis mine) did not intend to appeal. As a result, the High Court proceeded to hear the appeals by the 1st accused Protas Wilfred and the 5th accused - Barusha Jeremiah only. It will be noticed, and as I have tried to indicate, the 3rd convict at the original trial (2nd accused) who was said to have decided not to appeal was none other than the appellant Matata Clemence. and not Laurian Buhebana, who had been acquitted on a no case to answer. It is not exactly clear what had happened to the Court records, but going by the proceedings in Bukoba Misc. Criminal Application No. 4 of 2006, it is apparent that an intended appeal by Matata Clemence had been mistakenly struck out by the court and without notice to the appellant. The appeal by the 2nd accused Matata Clemence was thus admitted out of time to determine whether or not justice was done. I will now turn to the appeal itself. In his long memorandum of appeal, the appellant raised a number of issues. However, and as it will soon become clear, only one ground of appeal was sufficient to determine the case. The case against the 2nd accused at the trial, hinged solely on the evidence of identification of the accused by the prosecution witnesses during the robbery. When this Court was dealing with the appeals filed by the 1st and 5th accused respectively, my learned brother, Masanche,J. was of the firm view, and rightly so, that the evidence of identification produced against the 1st accused Protas Wilfred was cogent and watertight. The Prosecution witnesses- Pw1, Pw2, Pw3 and Pw4 were persons not only known and familiar to the 1st accused but also were seized of the fact that 1st accused is a cousin to Pw1. On the other hand the same court was satisfied that the evidence of Pw2 and Pw4 which touched on identification of the 5th accused was highly insufficient. Masanche,J. gave the benefit the benefit of doubt to the 2nd appellant (5th accused) and discharged him. As I have already indicated above, the High Court in Bukoba Criminal Appeal No. 14 of 2001 did not deal with the evidence against the 2nd accused who was said to have decided not to appeal. I have examined closely the evidence adduced by Pw1, Pw2, Pw4 and Pw6. As the record clearly shows, Pw1, Pw2 and Pw4 were not known to the 2nd accused prior to the incident. The only evidence which tended to incriminate the 2nd accused were statements by Pw1 and Pw2 that they had seen the accused during the robbery. When asked to specify how they had managed to identity him, they asserted that it was because the accused is a short man with dark complexion. I need not repeat the cardinal principles surrounding evidence of identification in unfavourable conditions. From the evidence of Pw6 the investigator, it is crystal clear that the Police did not conduct an identification parade in respect to this case. At page 13 of the typed proceedings, Pw6 states clearly that he was detailed to conduct the investigations surrounding the robbery incident and at the time of taking up his assignment, the 2nd to 9th accused persons were already in Police custody facing other charges. And as the 2nd accused stated in his defence both at the trial and before this Court, he had been arrested on other charges connected with house breaking. He was thereafter charged with Robbery with violence and joined with the other accused for no apparent good reason. It is no wonder that even the suspect who was found in possession of the firearm stolen from Pw1 was acquitted on a no case to answer. Mr. Kameya, Learned State Attorney, declined to support the conviction and sentence imposed on to the appellant. In his submissions, he pointed out that the purported identification of the 2nd accused was technically dock-identification which under the circumstances was highly insufficient to found a conviction for robbery with violence. The prosecution witnesses were not known to the 2nd accused just as they were unfamiliar with the 5th accused. This was a case wherein the Police should have conducted thorough investigations together with an identification parade. This court has gone over the record of proceedings. I have had the privilege to read the judgment of the Court by my brother, Masanche,J. I cannot but agree that the evidence of identification of the 2nd accused during the robbery was too weak to warrant a conviction for a serious offence such was in the case at hand. The conviction so entered by the trial court is hereby quashed. On the issue of 15 years imprisonment, though patently illegal, the same is set aside. In sum, the appeal is allowed in its entirety. Appellant to be released unless otherwise lawfully held. 27/07/2007 AT BUKOBA 27/07/2007