ndahya so john vs republic 2008 tzhc 186 21 january 2008

IN THE HIGH COURT OF TANZANIA AT TABORA APPELLATE JURISDICTION (Tabora Registry) (DC) CRIMINAL APPEAL NO. 135 cf 136 OF 2005 (ORIGINAL CRIMINAL CASE NO. 93/2003 OF THE DISTRICT COURT OF IGUNGA DISTRICT AT IGUNGA) BEFORE: D.M. MALAMSHA Esq., SENIOR DISTRICT MAGISTRATE NDAHYA S/O JO H N ......................................... APPELLANT (Original Accused) Versus THE REPUBLIC.............................................RESPONDENT (Original Prosecutor) JUDGMENT 7/ 11/2007 & 21/01/2008 CHINGUWILE. J. This is a consolidated appeal arising from District Court Criminal Case No. 93 of 2005. The trial District Magistrate of Igunga convicted the appellants of armed robbery contrary to section 287 of the Penal Code Cap. 16, and sentenced them to thirty years imprisonment 1 plus twelve strokes. They are appealing against both conviction and sentence. Evidence shows that on 7/7/2005 around 1.00 a.m. the house of PW5 one Sylvester Sonda was broken into by bandits. They demanded money from him. However he responded that he. had none. Thereupon the bandits beat him with clubs and they also cut him on his head with a panga. They ransacked his house whereby they stole the following properties* One radio cassette make National Panasonic valued at 85,000/= shillings, one cellular handset make Samsung valued at 130,000/= shillings and bags full of clothes. They also stole cash 7,500/= shillings from PW6 Trim s’ d/o Mayunga tneVife' oHPW^T"" PW5 told the court that he recognized the first appellant by his voice because he is his neighbour. He also said that he was able to recognize the second appellant by his voice. PW6 testified that she was beaten and was also injured by the bandits. She asserted that she was able to identify both appellants. She also claimed that she had recognized their voices. One of the stolen items a radio cassette was recovered from a maize farm outside the house of the second appellant. Acting on this information the appellants were arrested and charged. 2 The Republic quite rightly does not support their conviction. It is submitting that the trial court should not have considered the evidence of voice identification only as there are persons who can successfully imitate another voice. In support of their submission they referred this Court to the decision of the Court of Appeal in Swelu Mwamoja Versus Republic Criminal Appeal No. 43/1991 (unreported). After analysing the evidence on record, I am satisfied that the appellants were not identified. The prosecution should have brought sufficient evidence to p^ve that the appellant^w er^properl^^ntified. The evidence of PW1 and PW2 is worthless as it is purely hearsay. Even the recovery of one of the stolen items in a maize farm outside the house of the second appellant does not prove that it was hidden by the appellants. This appeal therefore must be allowed. Their conviction is quashed; sentence of thirty years imprisonment plus twelve strokes each is set aside. The appellants are to be released immediately. A.F. CHINGUWILE JUDGE 21/ 1/2008 3 Judgment delivered in the presence of both appellants and Ms Ndaweka learned State Attorney. A.F. CHINGUWILE JUDGE 21/ 01/2008 4