paskali s o huka vs republic 2007 tzhc 329 27 august 2007

IN THE HIGH COURT OF TANZANIA AT SONGEA HIGH CRIMINAL APPEAL NO. 2/2006 (ORIGINAL CRIMINAL APP.NO,71/2002) OF D/C SONGEA DISTRICT AT SONGEA) PASKALI s/o HUKA................. APPELLANT VERSUS THE REPUBLIC...................... RESPONDENT 20/8/2007 - Hearing Concluded 27/8/2007 - Judgment Delivered J UDGMENT i.' KAGANDA, J. The appellant stood as 3rd accused in criminal case No. 63/2002 before Namtumbo Primary Court. He was charged of Cattle theft together with two others. He was convicted together with 1st accused and were sentenced to fifteen years jail imprisonment (15). He now appeals against the judgment and sentence. Facts in summary were that, the three accused jointly and together stole one goat from Issa’s premises during the night of 1 24/3/2002. The conviction was based on three prosecution witnesses who claimed to lay a trap on the accused after they had been informed of the j intended offence by 2 accused. All three witnesses testified to the effect that 1st accused was arrested immediately at the scene o f crime but the 3rd culprit managed to escape. He was sent to the village government offices for further interrogation before he was sent to the Police. 1st accused is said to have named the 3rd accused who is the appellant to have been the culprit who had escaped from the scene of crime. On the strength of that information the appellant was arrested. Their testimony was as follows “SM /, Issa R ajabu...................................... tulifanikiwa kumchukua Mshitakiwa N o.l na mbuzi hadi ofisiya ulinzi, naye alipoho- jiwa alikubali na kutaja aliyemuibia ni Mshi­ takiwa Paskary Huka. Asubuhiyake tulifa­ nikiwa kumkamata Mshitakiwa Na. 3" SM 2 Richiwani Tongo, who was also involved in the trap stated:- “..............wakati wanataka kutoka nje wale waliokaa nje wakabana wakazuia kwenye mlango katika patashika hilo la ndani Mshi­ takiwa Na. 3 alizidi nguvu alifanikiwa kutoka 2 nje na kukimbia na Mshitakiwa No. 1 tulifa- nikiwa kumkamata mle ndanu Na Paskary namfahamu kulikuwa na mwanga wa tochi n a y eye ni mzaliwa wa pale.................” The witness did not state how he identified the appellant by at least giving description of his physical appearance at the material time i.e.onhis attire. The witness claimed there was a light of a torch, that kindof light was disqualified for purposes of proper identification in the Case of Mohamed Musero V.R. (1993) TLR. 290. The Court held that torch lights were not effective in identifying thieves and relying on torch beans was a pure conjecture which have no room in criminal trials. SM.3, Nurdin Issas testimony could not change that position because he also stated that:- “........ Mshitakiwa Na. 3 alikamatwa Baadaya kutajwa na mshitakiwa N o .l” All accused denied committing the offence, 1st accused’s defence did not mention of the appellant. The second accused tend to shift the burden to the 1st accused and the appellant. He stood to the court as an accomplice as such his evidence should be taken with caution after all he had no duty to 3 prove the case because he was not a witness for the prosecution. The district court did not handle the matter judiciously because it did not examine properly the lower courts decision. Legally an appeal is an application for the judicial examination by a higher court o f the decision of any inferior court. The learned appellate Magistrate did not give reasons for upholding the trial courts judgment he merely stated that:- “/ have no difficulty in answering the grounds o f appeal in the negative. The trial court was the best judge o f the fa ct and this court would be entitled to interfere with its finding only if the evidence on such conclusion o f the below is insupportable. I fin d no reason to interfere with the court’s below......... ” The district court ought to have examined the evidence before entering such a conclusion. The appellant has advanced several grounds o f appeal challenging the district courts decision. He firmly argued that the district court did not hear 4 the appeal before making a decision. Secondly that, the appellant was denied his night to defend his case. Thirdly that, the court had refused to summons the appellants witnesses. Fourth, that the prosecution witnesses were family members as such their evidence ought to have been corroborated. Fifth, that, the conviction was bad because it was based on unreliable evidence as to his identification. The appellant correctly cited the decision in Waziri Aman V.R. (1980) TLR. Like wise the case of R.V, Augustine Kenneth (1982) TLR. 122. My observation is that, the appellant was not properly identified at the scene of crime. The light of a torch was insufficient for one to identify a person accurately. The district court did not exercise its judicial powers correctly. It should be noted that, in exercising judicial powers, some injustice will *be the result and the Law shall fail to meet the justice it was enacted for. In the case of Bushiri Amiri V.R. (1992) TLR. 65 it was held that:- “The two witnesses ought to have given a detailed description o f the accused to the person to whom they first reported about the theft before they had a chance o f seeing the appellant after he was arre­ sted. The description would be on say, 5 appearance, colour, height and on any peculiar mark o f his identity. ” In the case at hand no prosecution witness gave such description. On the issue of accomplices evidence, it is not legal that the 2nd accused testified as an accomplice because his testimony on defence was that of a co-accused who just tried to shift the burden to the other two. Since the burden of proof in Criminal Cases is cast on the prosecution, his allegation could have been considered only if he were to testify as a witness for the prosecution. The court shouldn’t have given weight to the prosecution evidence because they just alleged that, the appellant was arrested on the strength o f 2nd accused’s allegations against him. There was no sufficient evidence to support those allegations, the court ought to have taken considerable caution because a mere mention of a person is not sufficient to prove of his implication to the offence. With those reasons I find that this appeal has merit and I hereby quash the district courts judgment and set aside the sentence. Plus all orders there to. Unless otherwise there is any legal reason for the appellant to be held behind bars, he should be set free forthwith. It is so ordered. 6 Right of appeal explained. S.S. KAGANDA, JUDGE, SSK/ESY.