raymond sylidion vs republic 2007 tzhc 435 18 october 2007

IN THE HIGH COURT OF T ANZANIA A T BUKOBA H/C CRIMINAL APPEAL NO. 44/2005 (Arising from District Court o f Karagwe Criminal Case No. 101/2001) RAYMOND SYLIDION = = = = = = = = = = = = = = = = =APPELLANT VERSUS THE REPUBLIC = = = = = = = = = = = = = = = = = = =RESPONDENT JUDGMENT Mussa. J: In the District Court of Karagwe, the appellant and another, namely, Robert Francis, were arraigned for robbery contrary to sections 285 and 286 of the penal code. The particulars alleged that on the 29th day of March, 2001 at Runyaga village, within the District of Karagwe, the appellant and his co-accused jointly stole cash and an assortment of items totally valued at a sum of Shs:83,000/=, the property of one Sosthenes Barongo. It was further alleged that immediately before and after such stealing, the perpetrators employed physical violence on the person of the said Sosthenes in order to obtain or retain the items. At the trial, the case for the prosecution was comprised of four witnesses from whom it is commonplace that on the alleged date and place around midnight or so, several bandits armed with machetes, stormed their way into the residence of the said Sosthenes Barongo (PW1) who was then asleep with his wife, namely, Petronia Barongo (PW3). It was said that the gangsters, six in number, immediately set upon manhandling Sosthenes whom, it was further claimed, was dealt with a sharp object on his head, shoulders and; subjected to an array of attacks. To Sosthenes, the violence was unendurable from which he, momentarily, took to his heels in a bid to escape. But no sooner had Sosthenes wrestled out of the culprits' grasp than one of the gangsters followed in pursuit and; the ensuing wild chase found both of them falling unto a shallow well. The bandit, is said to have left Sosthenes right there after being lent a hand out of the well by another of the intruders but; only after he had there and then dealt Sosthenes with yet another hefty cut that landed on the latters' head. Meanwhile, Petronia was encountered with a predicament of her own being subjected, as she said, to untold violence at the hands of the gangsters. A few moments later, Petronia took opportunity to slip out of the house to seek assistance from neighbours. Among others, Adolf Kato (PW2) and Peter Paul (PW4) braved the scene in the immediate aftermath of the incident. Somehow, Sosthenes was pulled out of the well and allegedly told Adolf there and then that the assailants were the appellant and his co-accused. In contrast, Peter testified to the effect that Sosthenes mentioned nobody. From the victims' mouth, the allegation was to the effect that Sosthenes identified both the appellant and his co-accused although he did not identify the remainder of the culprits. His identification was claimed to have been facilitated by beams of a torch that was flashed towards him. More particularly, Sosthenes alleged that the appellant was putting on a black hat and that he was the culprit with whom he fell unto the shallow well. It was said that the hat and a machete were found abandoned in the well only Peter, again, in contrast, said the hat was, rather, whitish. Petronia, for her part, implicated Robert, the co-accused, whom she confronted outside the house as she was seeking assistance. She did not furnish elaboration as to what facilitated her visual identification. It was, otherwise, common ground that the gangsters made a fortune with a sum of Shs:64,000/= cash and an assortment of items as enumerated in the charge sheet. This version as told by the prosecution witnesses was denied by the appellant whose defence was one in which he completely disassociated himself from the occurrence. His version was to the effect that he was drafted into the allegation for the first time on the 18th day of April, 2001 when he was arrested and implicated on this matter he knows nothing about. He called a relative witness, namely, Gedion Syridion (DW2) who rather claimed that he slept on the same bed with the appellant and that, at all the material lines, the latter was glued at their residence. It is, perhaps, pertinent to note that at some stage during the trial when preliminary hearing was pending, the appellants' co­ accused, Robert, that is, was no show in consequence of which further hearing proceeded against him as if he were present in terms of section 226(1) of the Criminal Procedure Act. Upon its consideration of the whole of the evidence, the learned trial Magistrate was impressed by the version as told by the prosecution witnesses. More particularly, he found the evidence of visual identification to have yielded sufficient material to support the conclusion it reached that it were the appellants and his co-accused who, among others not charged, perpetrated the robbery. The appellant and is co-accused were accordingly, convicted and sentenced to a term of fifteen years imprisonment and additionally ordered to refund Sosthenes a sum of Shs:83,000/= made up of properties robbed and; a further sum of Shs:300/000/= as compensation for injuries sustained. At it turned out, the conviction and sentence against Robert was meted out in his absence. The appellant is at odds with both the conviction and sentence upon a petition comprised of seven grounds. I am anxious to dispose of, first thing, the ground of grievance directed against the trial courts' finding the evidence of visual identification sufficient to support the conviction. Mr. Ndjike for the respondent Republic declines to support the conviction on account that the identification of the appellant was made under most unfavourable conditions and that the evidence of identification was not put outside the pail of doubt to sustain the conviction. It is a submission to which I entirely subscribe. It is upon sheer common sense that while effective in making it easier for the holder of a torch to view surroundings; a beam of a torch can not help one to identify the holder thereof. Often times, particularly in situations, as here, where the beam is directed unto the victims eyes, a torch light is more likely to dazzle and impair the latters' vision. That, therefore, Sosthenes and Petronia were mistaken in their identity of the appellant and his co-accused is all the more likely event than not. There was yet another of the disquieting features of the case for the prosecution. It led no evidence whatsoever as to the exact date of the arrest of the appellant. That being the position, it is safe and all the more realistic to go by the date suggested by the appellant according to which he was arrested almost three weeks in the aftermath of the incident. It does not make good sense and, indeed, boggles the mind as to why it took so long to arrest the appellant. To this mystery, the prosecution did not entirely furnish elaboration. To me, the misdescription goes to the root of its entire version. It may be that the implication of the appellant was a belated invention to satisfy whatever was in the minds of the prosecution witnesses. No wonder their version was fraught by discrepancies on material particulars to which, again, there was no elaboration. In the light of the foregoing this appeal must, as is, accordingly, allowed. The appellants' conviction is quashed just as the sentence is set aside. The appellant is to be released from custody forthwith unless held there for some other lawful cause. In view of the fact that this was a joint trial, albeit, tried in the absence of Robert; my order quashing the conviction and sentence is equally extended to the fugitive Robert in revision. It is accordingly ordered. 18/10/2007 22/10/2007 Coram: K.M. Mussa, J; Appellant: Present Respondent: Mr. Kameya B/C: Jane