peter so sengerema another vs republic 2008 tzhc 206 26 may 2008

IN THE HIGH COURT OF TANZANIA AT MWANZA APPELLATE JURISDICTION HC CRIMINAL APPEAL NO 101/2004 (CF’s) HC CR APP. NO 102/2004 (Original Cr. Case No. 504/2002 o f the District Court o f Geita District at Geita Before: E.M. SABUKA, District Magistrate) 1. PETER s/o SENGEREMA 2. BUDAGA s/o SIYAMAWE / .................... APPELLANTS Versus THE R EPU BL IC .................................................. RESPONDENT 18/2/2008 & 26/5/2008 JUDGMENT R W EYEM AM U, J: This judgment is a consolidation of Cr. Appeal No. 101/2004 by Peter Sengerema and Cr. Appeal 102/2004 by Budaga Siyamawe emanating from the District Court (DC) decision in Geita Cr. Case No. 504/2002. In that case six people namely Budaga Siyamawe , Peter Sengerema (or Petro Manziku as per charge sheet accompanying this appeal), Mwinanila Kibindi, Furahisha Bulabuka, Charles Joram and Mathias Aloys Kibindi 1st to 6th accused respectively, were charged of armed robbery c/s 285 and 286 of the Penal Code. It is on record that the 3Kl accused M wim m iia Kihindi died before trial was concluded; the 4lh and 5th ( h'ltrahisha Bulahnka A’. ( ’harles Jorum) W d 'e acquitted while Budaga Siyamawe, Peter Sengerenia and Mathias Alovs Kihindi p l 2nd and 6th accused respectively were conv icted of a lesser offence o f robbery with violence and sentenced to serve 15 years imprisonment. Dissatisfied the 1st and 2nd accused appealed that decision. It is not clear from the record whether the 6lh accused appealed or not. Briefly the evidence adduced at trial was as follows: About 19.30 hours of 25/1 1/2002, the complainant Pw1 was outside his house when three people appeared suddenly. He was able to identify one o f them (the 1st accused), as he knew' him before. They introduced themselves as policemen and forced him to show the room where he kept his gun. They forced him to show' his room, two of them entered and he remained outside with the l sl accused. Me could not tell who entered the room as he was forced to look down. After collecting a number of items including money and his gun, they came out and the first accused asked them if they had got the gun. They all run away thereafter. On the same day almost 30 minutes later, Pw2 who happens to be Pvv's son was returning home when he met three people. There was moonlight and he was able to identify the 1st accused whom he knew before. The 1st accused had a gun. He suspected nothing until when he reached home and learnt of the mishap from his father Pw1. They made a follow up and reported the matter to the police. Another witness Pw3 testified that on 26th about 8.00 hrs, he met the 1st and 6th accused and the latter had a nylon bag which contained a gun (he saw a handle of the gun), when he arrived at a place called Lubanga he met a large group of people and there learnt that a gun had been stolen. He then reported to them about two people he had met with a gun and investigations continued. The next witness Pw5 testified that about 10.00 hrs on the 25th, the th 6 accused who was her brother in law went to her home accompanied by the 2nd accused, they left about 17.00 hrs claiming they were going to get some herbs but did not return. The police witness Pw4 testified to have come in the picture after the accused were arrested, and recorded the 6th accused’s cautioned statement. I find it pertinent to mentioned that the cautioned statement retracted by the accused was admitted as P Exh. 1 without a trial within a trial being conducted to decide on its admissibility. In my understanding of the governing law and practice Pw4 s testimony was for that reason, of no additional value to the prosecution’s case. In their defense both appellants denied the charge and on appeal they continued to protest their innocence, each attacking the evidence o f identification particularly that no identification parade was conducted. The republic was represented on appeal by Mr. Mkemwa state attorney. He supported conviction of the 1st accused submitting that he was properly identified by Pw1 who knew him before; as such there was no need of conducting identification parade. Declining to support conviction of the rest of the accused, he submitted that they were not identified at the scene of crime and there was no other incriminating evidence against them. The issue for decision is whether there was sufficient evidence to convict the two appellants or all the accused in the case. First I agree with Mr. Mkemwa, learned state attorney that, where the identifying witness knows the suspect before, evidence of identification parade serves no purpose. I also agree with him that, save for the 1st accused, there was no evidence at all to suggest that the rest of the accused in the case were identified. The 2 3 5 evidence of Pw Pw and Pvv was insufficient to incriminate them, particularly because it was inconsistent regarding who had the gun. According to Pw2 it was the 1st accused who had the gun, but according to Pw3 the gun was with the 6th accused, (from his evidence, it is not even clear if the item seen by the witness in the 6th accused’s nylon bag was a gun.) Pw5,s evidence that the 6th and 2nd accused came together to her home earlier was of no conclusive evidential value. Unlike the state attorney however, I do not find Pw*’s testimony to have been watertight evidence of identification. I am more inclined to so conclude because the witness’s purported identification was not accompanied by immediate - a later on disclosure, o f the appellant’s identity, despite having had opportunity to do so. He did not disclose the identity to his son Pw or others involved in the investigation later on. According to the latter’s testimony investigations involved reporting to the th police and obtaining information which led to arrest of the 4 accused. If Pw 1 had indeed identified the 1st accused, he would have disclosed his identity to people who answered the alarm, especially to Pw2 or to the police. The fact that he did not puts a prudent mind to enquiry - to quote CA holding: “The ability o f witness to name a suspect at the earliest opportunity is an all — important assurance o f his reliability, in the same way as un-explained delay or complete failure to do so should put a prudent court to inquiry "(Swale Kahonga in Cr. App 46/2002 in mwanzaregistry (unreported) citing Marwa Wangiti Mvvita , Boniface Matiku Mgendi v. R, Cr App. No. 6 /1 995, MZA Registry (unreported) To conclude, I find that the evidence at trial was insufficient to find conviction against the two appellants or any of the other accused charged. I accordingly opi€r quash the appellant’s conviction as well as that of the 6th accused Mathias Aloys Kibindi (in case he did not appeal), and order their immediate release unless they are otherwise lawfully held. 26 / 5/ 2008 . Order- Case file and Judgement forwarded to the District Registrar Mwanza HC, for delivery to the parties and execution of subsequent orders. ' 26 / 5/2008 MTWARA HC.