havyalimana gei gwido others vs republic 2008 tzhc 269 18 november 2008

IN THE HIGH COURT OF TANZANIA AT TABOKA APPELLATE JURISDICT)ON (Tabora Registry) (DC) CRIMINAL APPEAL NO. 13 Cl-1 16, 17 Cj ' • OF 200(5 <.>KJ'jlNAL CRIMINAL CASE NO.21 ‘ >■; i OV i iii DISTRICT COURT OF KIGOKA " . >?! t T AT KIGOMA Bi 1 u H ; ,i j . ibl IE.NGOMA.: Lsn.: D1STHK i j KATE HAVYAIJMANA GEI GWIDO & OTHERS........... ') !>F1 LANTS u ii i ;■'1 • ' rused) ':x/, 2u/10/2u0b- <\ i.v 11/2008 JUDGMENT KADIJRI. I. The fi\e appellants were charged with the offence of Armed Robbery c/ss 285 and 286 of the Penal Code. At the conclusion of their trial the District Court found them guilty and sentenced them to 30 years imprisonment. The prosecution case was focused on visual identification by PW.l for the first appellant. The rest were mentioned by the first cippellant that they took part in the robbery. These are the two pieces of evidence relied on by the prosecution. The learned State Attorney who represented the Respondent Republic did not support the conviction on the ground that the identification was by a single witness and the circumstances were not favourable for positive identification. Secondly he submitted that it was unsafe to convict appellants 2 to 4 on uncorroborated evidence of Appellant No.l who was an accomplice. r i mi TT13— ^^ ™j ^ jftf p w 1 j ^ V,™AT oV,° managed to identify the 1st appellant before I discuss the issue of corroboration. PW.l Asia d/o Shabani testified that on 04/04/2003 at about 2.00 a.m she was at home in Musimba Village in Kigoma District. She was by then asleep. She was with her husband and 5 children. At that material time bandits broke the front door of their house. They forced it open and proceeded to force open their bedroom door as well. The bandits started beating up her husband. After a struggle her husband managed to escape, some of the bandits chased him. She got a chance to run out of the house when the bandits were chasing her husband. She hid herself at the rear of their pit latrine. 2 She heard a gun shot. Some of the bandits were outside the latrine building and one was inside the latrine. When she heard the gun shot she ran inside the latrine only to find some of the bandits already in there. They took her back to the main building. The lantern lamp which was giving light in their house was kicked by the bandits, it fell down and the light w7as extinguished. She further testified that she identified the first appellant when he was beating her husband. The first appellant was also beating her up and that is why she also managed to identify him. The bandits were flashing torches while busy sorting out . When cross^upTm m inH- j r ’ appellant she stated that she identified him when she was brought back into the house from the latrine and that was before her face was covered. After she was discharged from hospital where she was admitted following the beatings she had received from the bandits, the Police officers informed her that some items had been recovered. She went to the Police Station where she identified a m attress and a radio, properties that belonged to them and which were stolen on the day, they were robbed. Both items bore the mark “KYR” the back cover of the radio had been left at home when the radio was stolen and the same was given to the investigating police officers. 3 Tills witness was cross - examined by the first appellant on how she identified the appellant. She testified that she identified the appellant with the aid of torch light when the bandits were looking for money and properties. PW.2 D/Sgt Kapufi acting on information by informer arrested the first appellant. The appellant led him to Kamala area. There he met one Fitina who produced a radio that the first appellant had taken there. It was the first appellant who led the investigators to where the rest of the appellants lived. similar to the prints of the shoes of the 3rd appellant, Ntaisile Emmanuel. The defence of the first appellant is that he was arrested for unlawfully being present in Tanzania only to find the charge filed in court is Armed Robbery. The 3rd appellant Ntaisile Emmanuel stated in defence that when the Policemen arrived at his home at Kikunku, they said they were after illegal immigrants. His home was searched but nothing illegal was found. Then he was charged with Armed Robbery. The 5th appellant Ndaimana Innocent said he was arrested because he was said to be a refugee, then 4 practice it required corroboration. See Jackson Mwakatoka and 2 others V. R (1.990) TLR 19. The gun allegedly found in the possession of the appellant was actually tendered as exhibit in another case, Criminal Case No.419 of 2003 in which the appellant was convicted and sentenced to serve 10 years in prison. It is not known how it was related to this case. Among the items said to have been stolen and recovered from one Mwamvua Yusuph who was accused No.6 was a mattress. The stolen mattress, according to PW.2 Yusuph Mwamvua Yusuph he stated that Mwamvua Yusuph was arrested in possession of illegal local brew7 and bhang. In her testimony the 6th accused defended herself that she was suspected to harbour bandits. When arrested she was taken to the Police station where one woman from Kamala was brought with a m attress and a radio. The items alleged to have been seized from accused No.6 was not identified when seized but was displayed and identified in court. It is doubtful as to how they were seized. 6 From the foregoing reasons I agree with the learned State Attorney that the evidence for the prosecution was not sufficient to found a conviction. The appeals for all appellants are hereby allowed. The appellants are to be released forthwith unless held for other lawful cause. L.K.N. KADURI JUDGE 7