felistas mgaya vs republic 2008 tzhc 259 30 june 2008

IN THE HIGH COURT OF TANZANIA AT SONGEA (DC) CRIMINAL APPEAL NO. 5 OF 2008 (ORIGINAL SONGEA DISTRICT COURT CRIMINAL CASE NO. 94 OF 2007) FELISTAS M G A Y A .................................. APPELLANT VERSUS: THE REPUBLIC....................................RESPONDENT JUDGMENT: KAGANDA, J. The appellant was convicted of the offence o f armed robbery. He was sentenced to 30 years jail imprisonment, he now appeals both on the conviction and sentence. The appellant was the 1st accused on the charge plus two others. There were a total of four witnesses for the prosecution but non of them arrested any of the bandits at the scene o f crime. The learned Resident Magistrate convicted the appellant basing on circumstantial evidence after satisfying himself that it was water tight against him. The appellant has advanced six grounds of appeal which are:- That the prosecution had not proved the case beyond reasonable Doubt as required by Law. That, the circumstantial evidence relied upon for the conviction was not water-tight. That, his submission which was presented by his counsel was not considered. That, the possibility of mistaken identity was not eliminated by the prosecution case. He cited the famous case o f Waziri Amani V.R. R (1980) TLR. 250, in support to his submission. That, the leaned Resident Magistrate contradicted him self on that he believed both stories; one, that the appellant was not found in possession o f the pistol and two, that he was found in possession of a pistol. That, his defence case-was not considered. Before this court, Mr. Waryuba counsel for the appellant argued on the weakness for identification o f the appellant. He submitted that it was only P.W.3 who alleged to have identified him, but the circumstances could not have enabled him to deary identify the appellant because he alleged that, he had short a pistol in the air prior to the confrontation with that terror and panic the learned counsel doubted the accuracy of P.W. 3’s on the said identity. More so, because the appellant was a stranger to him and that was his first time to see him and there were several others. The learned counsel blamed the police on their failure to conduct an identification parade so as to ascertain of the appellants identity. The appellant was not arrested at the scene o f crime nor on same day when the offence was committed with emphasis the learned counsel submitted that in such circumstance, the prosecution could not have proved their case beyond reasonable doubt because the evidence adduced was not water tight; The possibility of mistaken identity was not eliminated. To cement his submissions he cited correctly two authoritaties decisious, which are Protus J. Kitongole & another V.R. [1992] TLR. 51 and Hassani Fadhili V.R. [1994] TLR. 89. I have read both cases and I commend the learned counsel for his good research. The counsel further • argued that the appellants defence was not considered. The appellant tried to raise a reasonable doubt on that, he was not arrested at the scene of crime nor on the material date. They found him on his private business on the second day from the material date. He explained that on seing that he was being confronted by a group of about 30 people he ran away to serve his life. It is common sense, I agree with the learned counsel that, no reasonable person would have avoided the fear and take refuge knowing that, mob justice is an order of the day in the present world. I have already noted o f the environment which is said to be not conducive for not only P.W. 3 but anybody to have identified his assailants. The case of Waziri Amani V.R. (supra) is cited as authority. On the issue o f possession o f the pistol, the learned counsel disputed and submitted that his client was not found with one because there was no evidence to link him with the said weapon. The learned State Attorney conceded on the defence counsels submission and averred that the conviction was wrongly entered because the prosecution evidence being circumstantial was not water - tight. He pointed out that P.W .3’s evidence was uncertain especially on the manner the offence was committed. That, he first alleged to have been ordered to lay down and obeyed and secondly that, he disobeyed the orders and confronted his assailants for half an hour. The respondent pointed further on the weakness o f the prosecution on that, one can’t be bold enough to be able to identify a gang of robbers having head a gun or pistol being short. I do agree with that observation because P.W.3 did not give any description of his assailants sufficiently for one to have identified them. That is supported by the fact that, the accused persons were seen on social gathering in a bar on the material date but were not arrested nor were they confronted. The witnesses claimed to have formed suspicion on them just because they were strangers to the village. In the case; Raimond F.V.R. [1994] TLR. 100 (IIIO it was held among other things that:- “ Since all the witnesses admitted seeing the Appellant for the first time during the incident that day, it was necessary in their evidence of identity to describe in detail the identity o f the appellant when they saw him at the time of the incident”. In the case at hand no witness gave description of the culprits, the arresting persons acted purely on suspicion but suspicion no matter how grave cannot be the basis for a conviction. In the alternative the learned State Attorney argued that the pistol alleged to have been found in the appellants possession had no link. On elaborating that issue he argued that there was no evidence to connect the series o f event i.e. had there been any bullet found at the area, that would have been a bit weighty. The learned State Attorneys reasoning is supportive and I would think that even if the bullets were found it would have been necessary to get an expert opinion to connect the two weaponsie the pistol and the bullet Having considered both, submission by the appellants counsel and the Learned State Attorney, I need not re-state that the decision o f the trial Court was based on circumstantial evidence. The principal is that such evidence must be water-tight meaning it must be sealed completely without any leakage. The evidence adduced by P.W.3 and other three did not give a description of the culprits. There was no evidence to link the said pistol to the offence committed. The appellant was arrested on m ere suspicion and by reason o f being strangers to the village. Those facts were too weak for a conviction, in the event I hereby allow the appeal; Quash the conviction and set aside the sentence. Unless the appellants further incarceration is legally backed, he should be set free forthwith. Right of appeal explained. - ... 5.5. KAGANDA JUDGE 9/5/2008 Court: Judgment read over and delivered in the presence of ~ 'v - - V,V*y!Sboth parties this 30/6/2008. WiM " v - ; W / '/ 5.5. KAGANDA JUDGE 30/6/2008. SSK/PJL.