senuhu so daniel vs republic 2007 tzhc 282 10 august 2007

IN THE HIGH COURT OF TANZANIA AT TABORA APPELLATE JURISDICTION (Tabora Registry) (DC) CRIMINAL APPEAL NO. 153 OF 2003 (Original Criminal Case No. Sc2 o f °200c2 of the District Court of Kibondo District at Kibondo) BE F O R E : P.Y. M A U M BA Esq., S E N IO R D I S T R I C T M A G IS T R A T E SENUHU S/O D AN IEL.....................................................APPLICANT (Original Accused) Versus HTTTT? Q T ? m T P 1 v> ^ " O " ) JUDGMENT 0 1 / 8 /2 0 0 7 & 10/ 8 / 2 0 0 7 CHINGUWILE, J . Before the District Court of Kibondo the appellant and two other accused persons namely Julius Ngendabaka and Zambimana Edward stood charged with an offence o f armed robbery contrary to section 286 of the Penal Code. T h e appellant upon conviction was sentenced to thirty years imprisonment. .. .-•* • j The appellant is now appealing to this court against both conviction and sentence. In his memorandum o f appeal he has raised ten grounds of appeal. Basically he is challenging the evidence o f visual identification. 1 The Republic represented by Mr. Bulashi State Attorney is. not supporting conviction against the appellant. Before the trial court it was alleged that on 2 7 / 1 / 2 0 0 2 around 23.50 hours at Nengo village, Kibondo District in Kigoma Region the appellant together with other people stole two mattresses valued at shillings 7 5 ,0 0 0 /= , one radio (4 Band) make National valued at shillings 5 2 ,0 0 0 /= , one bicycle make Phoenix valued at shillings 7 0 ,0 0 0 /= , various types of clothes valued at shillings '1*6,000/= properties o f one Anthony Patrick. It is further alleged that they used a machine gun in order to obtain the said properties. rrv*o iocnp t-n hp Hptermined. is whether or not the evidence of visual identification was watertight. What actually transpucu ...> n lU U lC i XU i , is that at around 23.50 hours bandits broke into the house o f one Anthony Patrick (P W l). P W 2 Eda Abdul the wife o f P W l was on that day sleeping in her room. P W 3 was also sleeping in another room. According to the testimony o f P W 2, the bandits upon entering into the room ordered her to give them money while beating her. She said she was led to the children’s room by the appellant and back to her room where the bandits stole cash and properties. However she does not say for how long she was with the bandits. She is alleging that she identified the appellant by torch beam. According to P W 2 the said torches were held by the other bandits. She claimed that those torches enabled her to see the face o f the appellant. Another piece o f evidence linking the appellant with the offence is the testimony o f P W 3 Nehemia John. According to P W 3 he identified the person who was taking down the mosquito net because one bandit was flashing the torch to him. 2 The appellant was arrested by PWl- D /C Jackson because he had a new wound onto his face. In his defence, the appellant has denied to have committed the offence. After analysing the evidence, I am in agreement with the submission of the learned State /\ttorney that, the evidence of visual identification adduced at the trial court is weak. Unfortunately P W 2 and PW 3 have failed to describe the appellant’s appearance. They just said that he was tall, this description is not sufficient. They should have described his clothes, its colours or any special mark. I am fortified in this by the decision in the case o\ Republic Versus A lly (1971) H CD 306 where the P m ir t w h ile C litin o* w i t h , . r T? ’ r‘ ■ r r , . . , . . n r r* t tt (1942) EA CA 72 held that: “In every case in which there is a question us to the identity o f the accused’ the fa c t o f there having been given description and the terms o f that description are matters o f the highest importance o f which evidence ought always to be given, fir st and all o f course by the person who gave the description or purports to identify the accused and then by the person to whom the description was given .......... Failure to say f o r example.what clothes the appellants zvore on that day is a very serious omission in casef o r prosecution. In addition to the issue o f the of the accused’s description; I think the proper course for this case was for the investigator to conduct an identification parade, in order to counter check whether the person arrested 3 is one o f the perpetrators of the offence. It is unfortunate that in the present case there was no identification parade. Therefore witnesses were not afforded another chance o f identifying the perpetrators of the offence. The circumstances o f the case demanded that identification parade be conducted because under normal conditions it is difficult for torch beam to illuminate properly. Identification parade can only be ruled out if there is sufficient light. See Kichele Mrange Versus Republic (1983) TLR 158 (H Q I am of the view that it will be unsafe to uphold the appellant’s conviction on the basis of the evidence o f P W °2 and P W 3 only. The evidence o f visual identification adduced by the two witnesses fell short of, 4 Republic (1980) TLR 252(CA T). Therefore I am allowing the appeal consequently; I quash the conviction, set aside a sentence of thirty years imprisonment and order the immediate release o f the appellant unless otherwise lawfully held. A.F. CHINGUWILE JUDGE 10 / 8 /2 0 0 7 4 Judgment delivered in the presence o f Mr. Mkoba State Attorney and in the absence of the appellant who did not wish to appear. A.F. CHINGUWILE JUDGE 10 / 8 /2 0 0 7 5