20080723 TZHC Mwanza

'· IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA · IN THE DISTRICT REGISTRY ATMWANZA LIBRARY APPELLATE JURISDICTION HIGH COURT or TANZANIA t,,,WANZA HIGH COURT CRIMINAL APPEAL NO. 31 OF 2007 (Original Criminal Case No. 54 of2005 of the District Court of MAGU District at MAGI/. Before L O. K. HOZZA Principal District Magistrate} CHUMA KORONGA .............................................APPELLANT (Original Accused) Versus THE REPUBLIC ...... 111 ■■ ■ •••••• •.••··I ■ 1111111 • • • • • I • • • • • •■ ••• RESPOND'ENT (Original Prosecutor) JUDGMENT G. K. RWAKIBARILA. J In this appeal the appellant CHUMA KALONGA's main ground of complaint which he reiterated almost in all his five grounds of appeal is that he was not identified at the locus in quo. He raised the similar complaint today when this appeal was heard. All this was after his conviction of two offences, namely; Armed Robbery c/s 285 and 286 of the Penal Code Cap. 16 and causing grievous harm c/s 225 of the same Code. He was seotenced to thirty years imprisonment in the former count and . two years imprisonment in the latter count. But due to unspecified grounds, both sentences were ordered to run consecutively. 1 , / i-1// •.} ) ,v·. ·1 'I · ' It transpired from what was established during the trial of appellant in Magu District Court Criminal Case No. 54 of 2005 that from 2000, appellant developed familiarization with the family of PW2 MUCHAMA MASUKA KENDA whose wife is PW 1 · ROB! LUBAYA. The couple rented a room in a non registered house in Nyamikoma villa'ge within Magu District. PW3 MAGRETH MAKOYE also rented a room in that house. But on 14/03/2005 at around 02:00 AM, a gang of thugs invaded the room where PW2 and his wife PW 1 resided. PW3 heard the commotion which took place during that invasion. One of the invaders who posed as a ring leader was shinning a tore~. '· Then he demanded money from the couple. PWl passed T.shs 200,000/= to the ring lea.der. And PW2 passed T.shs. 900,000/= to the same ring leader before all the invaders left the locus in quo. It was in PW2, PW1 and PW3's contentions that the said ring leader was the person of appellant. The records of proceedings of the trial court depict that accused opted to keep quiet in his defence. In his narration today when this appeal was heard, he expressed regret that tie was fumbling and unaware of how to stage his defence due to ~is prior ignorance to the court atmosphere which was ostensibly new to him during his trial. The courts as custodian of justice need to take into account interests of both· sided in the case, even for parties who fumble _ 2 -•·-•·-~=--~~c•-- -• _'C:' ' --"I!"------- __ ..,. ___ •-·- - --·-- ···--------·•··-- .. ,·.•~.- - - •· -- •- ,;:• .•. . ,_ ::- - - -- " -- .-• •.. • ... •• ...... )' / and fail to express themselves properly. In the circumstances of this case, the Learned State Attorney Mr. Kajungu who / represented the Republic grasped such a situation and repeatedly stated how he didn't support the conviction. He relied on an Indian Case of R Vs Turnbull (1977) QB at pp. 228 - 231 where it was stated, inter alia, that: ·"The Court should remind itself of any specific weaknesses which are likely to appear in the identification of the accused. " Much as I tend to agree with Mr. Kajungu's view on that, -it is in addition my considered view that the Tanzanian jurisprudence has in this era developed to an extent that the '· precedents relating to identification on our domestic law are prenty. It shall therefore be proper for him to consult our law reports _instead of keeping with foreign precedents in situations where the legal matters were dealt with properly by our courts of record. It is at this juncture proper to consider whether the appellant was properly identified at the ~ .. locus in quo. When the , ring leader and the other thugs arrived there, it was 02:00 A.M. The ring leader was holding the torch. The torch is in fact an instrument which beam or illuminate the direction where the · person holding it would like it to face. In most cases persons who hold torches _at night are bett~r placed to view persons in .. ·-------·- ---·-·-·-··-·· ' ,' .J the positions they like to view and not vice- versa. That is why in 1 .circumstances of this case it is fit to support what was opined by the learned State Attorney Mr. Kajungu in that appellant was not '· properly identified at night at the locus in quo during the material time. There is no need to adjudicate on whether it was proper for the trial District Court to award consecutive sentences in this matter because the same has been overtaken by the irresistible conclusion in that, inadequate identification of appellant suffice to allow the appeal, quash the conviction and the "consecutive sentences'. And the appellant should be released immediately from prison unless otherwise lawfully detained. Sgd: G. K. Rwakibarila JUDGE 23/07/2008.... COURT: Judgment read at Mwanza this 23 rd day of July, 2008 and fi,y,r . . ·· .. eal in time have been explained thoroughly. G. K. RWAKIBARILA · JUDGE 4