john so leons maziku another vs republic 2007 tzhc 169 2 november 2007

IN THE HIGH COURT OF TANZANIA AT TABORA APPELLATE JURISDICTION (Tabora Registry) CRIMINAL APPEAL NO. 178 cf 179 OF 2006 (Original Criminal Case No. 121/2005 of the District Court of Nzega District) Before: A.C.K. RWIZIRE Esq., RESIDENT MAGISTRATE ....................... APPELLANTS (Original Accused) THE REPUBLIC RESPONDENT (Original Prosecutor) JUDGMENT 8/ 10/2007 & 2/ 11/2007 CHINGUWILE, J. This is a consolidated appeal by John Leons Maziku and Kinyami Maige who were jointly charged with Said Mswaje @ Mwanamalusu, Emmanuel Charles @ Kisandu and Selemani Hamisi with two counts of burglary contrary to section 294(1) of the Penal Code Cap 16 R.E. 2002 and a second count of l armed robbery contrary to sections 285 and 286 of the sa m e . Act. The trial court entered conviction in respect of three accused persons namely John Leons Maziku, Kinyami Maige and Saidi Mswaje who did not appeal. * The first appellant John Leons Maziku and the second, appellant Kinyami Maige were acquitted of the offence of burglary and upon conviction in respect of the second count of armed robbery, were sentenced to serve a term of thirty years im prisonm ent each. Being aggrieved by both conviction and sentence, they are now appealing. They are challenging the C ourt’s reliance on the cautioned statem ent a n d its fa ilu re 10 conauci a inai w im irvinai. iney are aiso arguing mar Tney were not identified. The evidence before the trial court was to the effect that on 29/6/2005 around midnight bandits broke into the house of PW1 John G asper which is situated at Ipilili village Nzega District. According to the testimony of PW1, the bandits entered into his bedroom where they dem anded money from him. He was assaulted with a panga after telling them that he had none. The bandits also ransacked his house and made away with a shotgun and other properties belonging to PW1. PW1 told the court that he had identified PW1 as one of the bandits with the aid of a hurricane lamp and electricity light which shone from his neighbour’s house. He also stated that it was his first time to see him. None of the bandits were caught after the incident. According to his evidence, four days later, he was called to identify some suspects at the identification parade and that he was able to identify three suspects. The appellants were among the people who w ere identified. PW2 supported the evidence of PW1 regarding the identification of the appellants. She told the court that on that day she woke after hearing bandits demand money from her father. She also said that bandits entered into her bedroom and that one of them had a blood stained panga. She testified that she was also assaulted with a oanaa and that bandits stole dothps a n d a radio. She assertea that she was able to idennry an ut me bandits. According to this witness, she identified the appellants and the third accused. PW1 further told the court that the first appellant had a gun and that she was able to identify the second appellant by the clothes he wore. Under oath both appellants disputed the allegations. The Republic does not support conviction against both appellants. It is arguing that conditions for their identification were not favourable. It submitted that the type of light which was allegedly used to identify the appellants was not reliable. It further submitted that as the witnesses were not fam iliar with the appellants, it is difficult to believe that they were able to 3 identify them during the night. With regard to the cautioned statement, the' Republic submits that the same was admitted without any corroboration. They also pointed out that the cautioned statem ent was recorded by a police constable contrary to the express provisions of the Evidence Act. On the issue of trial within trial, they argued lh a t it is not. applicable to trials in subordinate Courts. The a p p ella nts’ conviction was based on the extrajudicial statement which was retracted. I have noted that apart from the evidence derived from cautioned statements, there is no other piece of evidence which links the aonellants with th<^ crime, ir is also clear rrom me record m ar me appellants were arrested after four days in connection to a crime which was committed elsewhere. What I see here is a case of witch- hunting. The delay in affecting the arrest of the appellants, in my view shows that, the arresting officers were not sure of the identity of the suspects. According to the second appellant he was arrested on allegations that he had stolen a bicycle. None of the prosecution witness claimed that a bicycle was one of the stolen item s. They told the court that bandits stole a shotgun, radio and clothes. I am satisfied that the appellants were just picked for this case and that there was no evidence regarding their 4 involvement. In view of this, I allow their appeal. I also quash their conviction and set aside a sentence of thirty years imprisonment meted, out. They are to be released from custody unless otherwise lawfully held in connection with other matters. A.F. CH1NGUWILE JUDGE 2 /11/2007 Judament delivered in the oresence of both o n n e llo n tc ana ms Naaweka learnea Mare Attorney. iH - A.F. CHINfeUWlLE JUDGE 2 /11/2007 5