20080526 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA ATMWANZA APPELLATE JURISDICTION HC CRIMINAL APPEAL NO 101/2004 (CF's) HC CR APP. NO 102/2004 (Original Cr. Case No. 504/2002 of the District Court of Geita District at Geita Before: E.M SAE UK.A, District Magistrate) 1. PETER s/o SENGEREMA 2. BUDAGA s/o SIYAMAWE } ............... APPELLANTS Versus THE REPUBLIC ........_.......................... .. RESPONDENT 18/2/2008 & 26/5/2008 JUDGMENT RWEYEMAMU, 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 I st to 6 th accused respectiv_ely, were charged of armed robbery c/s 285 and 286 of the Penal Code. rd It is on record that the 3 accused Mwi11anila Kibindi died before trial was concluded;- the 4 th and 5th (furahi.,·ha !3uluhuku &. Ch(irles .Jormi1) were acquitted while /3;.uJaga Siyamawe. Petet Senkeremo and Mathias Aloy.,· Kibindi 1st 2nd an d 6th accuse d respective . d o--f a Iesser . . I y were conv1cte offence of robbery with violence and sentenced to serve I 5 years st nd i1nprisonment. Dissatisfied the 1 and 2 accused appealed that th decision. It is not clear from the record whether the 6 accused appealed or not. Briefly the evidence adduced at trial was as follows: About 1 19.30 hours of 25/11/2002, the complainant Pw was outside his house when three people appeared suddenly. He was able to st identify one of the1n (the 1 accused), as he knew him before. They introduced themselves as policemen and forced him to show the roo1n where he kept his gun. They forced hi1n to show his ro01n, two of the1n entered and he re1nained outside with the 1st accused. He could not tell who entered the room as he was forced to look down. After collecting a nun1ber of items including money and his gun, they ca1ne out and the first accused asked them if they had got the gun. They all run away thereafter. On the same day aln1ost 30 minutes later; l>w 2 who happens 1 to be Pw 's son was returning home when he met three people. ,... . There was moonlight and he was able to identify the I st accused whom h_e knew before. The I st accused had a gun. He suspected nothing until when he reached home and learnt of the mishap from his father Pw 1 • They made a follow up and repo1ied the matter to the police. Another witness PwJ testified that on 26 th about 8.00 hrs, he met the I st and 6 th 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 I 0.00 hrs on the 25t\ the 6th 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. 4 The police witness Pw testified to have come in the picture after the accused were arrested, and recorded the 6 th accused's cautioned statement. I find it pertinent to mentioned that the · cautioned statement retracted by the accused was admitted as P Exh. l without a trial within a trial being conducted to decide on its admissibility. In my understanding of the· governing law and practice Pw 4's testimony was for that reason, of no additional value to the ptosecution' s case. In their defense both appellants denied the charge and on appeal they continued to protest their innocence, each attacking the evidence of 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 Pw 1 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. Th~ evidence of Pw 2 Pw 3 and Pw 5 was insufficient to incriminate ~hem, particularly because it was inconsistent regarding who- had the gun. According to Pw it was the I st accused who had the gun, 2 but according to Pw 3 the gun was with the 6th accused, (from his evidence, it is not even clear if the ite1n seen by the witness in the 6th accused's nylon bag was a gun.) Pw 5 's evidence that the 6th and 2 nd accused came together to her home earlier was of no conclusive evidential value. 1 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, of the appellant's identity, despite having had opportunity to do so. He did not disclose the identity to his son Pw 2 or others involved in the investigation later on. According to the latter's testimony investigations involved reporting to the police and obtaining information which led to arrest of the 4th 1 st accused. If Pw had indeed identified the 1 accused, he would have_ disclosed his identity to people who answered the alarm, especially to Pw 2 or to the police. The fact that he did not puts a prudent mind to enquiry - to quote CA holding: tf The ability of witness to name a suspect at the earliest opportunity is an all - important assurance of his reliability, in the I . 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 Mwita , Boniface Matiku Mgendi v. R, Cr App. No.6 /1995, 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 (_)~r quash the appellant's conviction as well as that of the 6th accused Mathias A lays Kibindi (in case he· did not appeal), and order their immediate release unless they are otherwise lawfully held. Judge 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. JUDGE . 26/5/2008 MTWARAHC. •