20070723 TZHC Tabora

IN THE HIGH COURT OF TANZANIA AT TABORA APPELLATE JURISDICTION (Tabora Registry) CRIMINAL APPEAL NO. 105 CF 106 OF 2005 ORIGINAL CRIMINAL CASE NO. 42 OF 2005 · OF THE DISTRICT COURT OF NZEGA DISTRICT AT NZEGA BEFORE K. M. RASHID - DISTRICT MAGISTRATE 1. SAAMBILI S/O MIHAMBO ) 2. MADUKA S/O MABALA ) .................. APPELLANTS VERSUS THE REPUBLIC .......... ■■■■ ••••••• I ••••••••••••••••••••••••• ••• RESPONDENT" 2flh August, 2006, 2:Jl"d July, 2007. JUDGMENT MWTA, J. On 19.3.2005 at 3.00 hours the residence of one Masune Elias situated at Mwamba Village, Nzega District, was invaded by armed bandits who, after breaking and entering into the house did steal the properties of Masunga Mshandete, Shija Masanja, Andrea John, Mrisho Mohamed, Julius Ndeze11 Shija Mhagila, Paulo John and Samwel Upele, businessmen who had lodged in that house that night. 1 I f, Saambili Mihambo, Maduka Mabala and Lutahila Ibazu were suspected of having committed the offences. They were jointly charged yvith one count of burglary contrary to section 294 (1) of the Penal Code and eight counts of armed robbery contrary to sections 285 and 286 of the Penal Code. At the conclusion of the trial Saambili Mihambo and Maduka Mabala were convicted of burglary and seven counts of armed robbery. They were sentenced to five years imprisonment each in respect of burglary and 30 years imprisonment each in respect of each count of armed robbery by the District Court of Nzega. Lutahila Ibazu was acquitted. _ Aggrieved by both conviction and sentence, Saambili Mihambo and Maduka Mabala have appealed to this Court. At the hearing of the appeal the appellants appeared and argued the appeal in person. The Republic had the Services of Mr. Rweyongeza learned State Attorney. Mr .. Rweyongeza declined to support conviction on the ground that the case depends entirely on visual identification and the conditions were not favorable to correct identification on of the appellants. He was right. The only evidence implicating the appellants is the testimony by PW7, Samweli Upele, who testified to the effect that he had identified the appellants atthe scene of crime. 2 Where the evidence alleged to implicate an accused is entirely of identification, that evidence must be absolutely watertight to justify a conviction: R.V. ERIA SEBWATO (1960) E.A.. 174; WILSON 5/0 OLLO V.R. (1968) H.. C.D no. 183. In WAZIRI AMANI V. REPUBLIC (1980) T.L.R 250 it was held by the Court of Appeal that evidence of visual identification is of the weakest kind and most unreliable and that no Court should act on evidence of visual identification unless all possibilities of mistaken identity are eliminated and the Court is fully satisfied that the evidence before it is absolutely watertight. At p. 252 of Court of Appeal said: "Although no hard and fast rules can be laid down as to the manner a trial Judge should determine questions of disputed identity, it seems clear to us that he could not be said to have properly resolved the issue unless there is shown on the record a careful and considered analysis of aU the surrounding circumstances of the crime being tried. We would, for example, expect to find on record questions such as the following posed · and resolved by him: the time the witness had the accused under observation; the distance at which he observed him; the conditions in which such observation occurred, for instance, whether it was day or night-time, whether there was good or poor lighting at the seen~; and further whether the witness knew or had seen the accused before 3 or not. These matters are out of a few of the matters to which the trial judge should direct _his mind before coming to any definite conclusiofl on the issue of identity." In the instant case the incident took place at night when it was dark; in the room in which PW7 purported to identity the appellants the wick lamp (koroboi) had been put off when the bandits burgled the house and entered. The bandits were flashing their torches towards the victims. Hence such light could not help PW7 to identify the appellants. The bandits were not known to PW7 although he alleged to have seen the appellants before the incident. As the appellants were not known to PW7, identification should have been accompanied by details or description of the appellants by PW7: LUDOVIC 5/0 KASHAKU V. REPUBLIC (1967) H.C.D n. 194. No such details or descriptions were given by PW7 in the instant case. Circumstances were, therefore, not favourable to correct identification. In cases where conditions are favourable to correct identification the danger for mistaken identity is lessened, but where conditions are not favourable to correct identification as in the instant case, there is greater danger for mistaken identity. In such circumstances it is unsafe to convict in the absence of corroborative evidence: AFRICA MWAMBOGO V. REPUBLIC (1984) TLR 240. 4 There was no corroborative evidence in the instant case. In such circumstances· possibilities of mistaken identity were not eliminated. For the above reasons the appeals are allowed. Convictions are quashed and sentences set_ aside. The appellants are to be released unless they are otherwise lawfully held in custody. JUDGE. Delivered in the presence of the appellants and Mr. Mulwambo, State Attorney, - \ '., 23rd July, 2007 5