mt69834 pte cosmas mayunga vs republic 2008 tzhc 207 28 april 2008

IN THE HIGH COURT OF TANZANIA AT TABORA APPELLATE JURISDICTION (Tabora Registry) (HC) CRIMINAL APPEAL NO. 121 "B" OF 2004 ORIGINAL CRIMINAL CASE NO. 363 OF 94 OF THE DISTRICT COURT OF TABORA DISTRICT AT TABORA BEFORE: K.A. MAJINGE,Esq; DISTRICT MAGISTRATE MT.69834 PTE COSMAS MAYUNGA............ APPELLANT (Original Accused) VERSUS THE REPUBLIC..................................... RESPONDENT (Original Prosecutor) REASONS FOR JUDGMENT MUJULIZI. J. The Appellant, MT 69834 PTE COSMAS SIMON MAYUNGA @ ABEGGA, a soldier at the time serving in the Tanzania Peoples' Defence Forces (JWTZ) was arraigned together with others, before the District Court of Tabora, facing one count of; Attempted Robbery Contrary to section 287 of the Penal Code (Cap. 16 R.E. 2002). The Appellant together with one accused, a fellow soldier, MT 70348 l PTE Reginald Maximilian Ntasima, were convicted and sentenced to thirty years imprisonment each, plus twelve strokes corporal punishment. The fifth accused Hassan Abdallah @ Mdogo was also convicted, but being a young-person was sentenced to suffer corporal punishment only. The first and forth accused were acquitted. Dissatisfied, he appealed against both conviction and sentence. However, his appeal had a checkered history in that it was not filed until 10th September, 2004 almost ten (10) years after he was first arraigned. It only came for admission before me on 10/8/2007 another three (3) years after it was filed. He filed nine (9) grounds of appeal coupled with arguments in support thereof. However, they all can be conveniently summed up into one main ground; that; The learned trial Magistrate erred in law and in fact on relying on contradictory evidence of visual identification of the accused to convict the appellant. The appellant who appeared in person before me to argue his appeal, adopted his grounds and arguments as set up in the Petition of Appeal. To do justice to his labour and arguments, I will attempt to render a summary thereof: a) The prosecution witnesses who claimed to have identified him at the scene of the crime had not rendered any early description immediately when they had reported the matter- i.e. no description given in terms of his appearance, height or colour: ABUSHIRI AMIRI V.R. (1992) TLR. 65. b) That there were varying accounts of his appearance by the witnesses - one saying that he was masked and the other that he had covered his face with socks: RAYMOND FRANCIS V. REP (1994) TLR 100. c) That under the alleged circumstances of the robbery involving the firing of gun shots, and the appellant being a stranger to the witnesses, the witnesses would have been in a panicked state of mind so as to render the opportunity to render positive identification absent: MOHAMED BIN ALHUI V.R. (1942) 9 EACA. 72; LUDOVICK S/O KASHARU V.R. (1967) HCD No. 194. d) That the identification parade was improperly conducted as the witnesses were arranged in a manner affording them, to see the accused persons before they were mixed with other persons: R.V. MWANGO MANANG (1936) 3 EACA, 29 - the parade has to be conducted " with scrupulous fairness otherwise the value o f the identification parade as evidence will depreciate considerably" (e) That AMANI WAZIRI V.R. (1980) TLR 250, was misapplied by the learned trial Magistrate to the facts at hand in that; i) All witnesses were strangers to the appellant. ii) No evidence was lead to show that there had been any early description of the appellant prior to his arrest. iii) Per the evidence of PW.6, the witnesses who had panicked were ordered to lie on the floor facing down. iv) PW.l, PW.2 and PW.6 - each gave a different description of the appellant's appearance as well as to the apparel he was putting on (colour of jacket)(overcoat). Finally, the appellant referred the court to the decision of this court, (A.F. CHINGUWILE,J) in the appeal of his co-convict: Criminal Appeal No. 121/2004 REGINALD MAXIMILIAN @ NTASIMA V. R. (Tabora High Court) (Unreported) in which the appeal had been ' granted on similar grounds. In that case the court held that the evidence of visual identification which was presented by the prosecution, including that of P.W.2 and P.W.6 was contradictory. He argued further, that there was yet another strong reasons why the evidence of identification ought to have been discounted by the trial Court. The appellant and his colleagues were arrested almost one month after the alleged incident. The crime was committed on 12/09/1994 but they were arrested on 10/10/1994. On the authority of WARIOBA MACHENGE V.R. (1991) TLR 39, he submitted that early positive identification would be expected to lead to early arrests, unless evidence is lead to explain the delay. Further, he supported the appellant's complaint against the unprocedural manner the identification parade was conducted. Indeed, he submitted, the entire exercise was flawed with substantive irregularities. Among the witnesses called, none could be classified as an; independent witness to confirm that he had participated in the parade. According to the law, the procedure requires the presence of independent witnesses in order to remove elements of doubtful pre­ arranged identification. In circumstances'where none of the witnesses who claimed to have identified the appeflant had rendered any early description of the manner and how he had identified him, then the absence of other witnesses other than those who were claiming to have identified the appellant at the scene of the crime, rendered the entire exercise a mere sham. As already stated, I am in respectful agreement with the arguments raised by the appellant as well as by the learned State Attorney. Indeed I can not do more than concur with the well reasoned judgment of my learned Sister, Hon Chinguwile, J. in her judgment dated 16/07/2007, when she allowed the appeal by Reginald Maximillian @ Ntasima, who had been charged, convicted and sentenced together with this appellant for the same offence. For those reasons I allowed the appeal. A.K. MUJULIZI JUDGE 28/04/2008 Date: 16/6/2008 Corarrc Hon. S.B. Bongole,DR. Appellant: Present Respondent: Represented by Mr. Kimweri the State Attorney for the Republic. CC: Mzige, RM. Court: Reasons for Judgment delivered. S.B. BONGOLE DISTRICT REGISTRAR 16/ 6/2008