peter william vs repu8blic 2009 tzhc 109 18 february 2009

IN THE HIGH COURT OF TANZANIA AT TABORA. APPELLATE JURISDICTION (Tabora Registry) (DC) CRIMINAL APPEAL NO. 11 OF 2006 ORIGINAL CRIMINAL CASE NO. 162 OF 2005 OF THE DISTRICT COURT OF KIGOMA DISTRICT AT KIGOMA BEFORE: G.E. NDEOREO.Esq; RESIDENT MAGISTRATE PETER WILLIAM.............................. APPELLANT (Original Accused) VERSUS THE REPUBLIC.................................RESPONDENT (Original Prosecutor) REASONS FOR JUDGMENT 21st May,08 & 18th Feb.09 MUJULIZI.J. This is a consolidated appeal. The Appellants, PETER S/O MABUYE and PETER WILLIAM @ KASONGO were first arraigned before the Kigoma District Court, on 06/04/2005 as 1st and 2nd accused respectively, facing one count l of Armed Robbery c/ss 285 and 286 of the Penal Code (Cap. 16 Vol. I of the Laws as amended by Act No. 10 of 1989 and No. 6 of 1994). In that charge it was alleged that they had on the 25/03/2005, jointly and together, at 01.30 hrs broken into the home of one ELIAS S/O MUZAI at Kaseke Village Kigoma District and stole money and properties valued at Tshs. 833,500/= and that immediately before such stealing they had threatened the said Elias s/o Muzai by shooting one bullet in the air in order to obtain the said properties. Later on, on 20/05/2005 the charge was substituted by the addition of a 3rd and 4th accused, the particulars remaining the same. At the close of the prosecution casq^the 3rd and 4th arausftrl w h o were not identified by the three key prosecution witnesses were acquitted of the charges. The Appellants were called to defence, and at the end of the trial were convicted on the basis that: “The testimony of both side as received by this court as aforementioned above. The evidence which was given and established by the prosecution side is watertight. I am very much satisfied by the consistence which was showed (sic) by the prosecution witnesses. The two accused 1st and 2nd have failed to defend themselves and to show to this court how the testimony of PW.1 and P.W.2 was ill motivated when cross examined by prosecution side , 1st accused did admit that there is no any bad relationship with the said witnesses. So this court has satisfied itseif that this is not a cooked up case..” Consequently, they were sentenced to thirty year’s imprisonment. They appealed against both conviction and sentence. Both raised several grounds of appeal, which in my opinion boiled down to two- 1. That the learned Resident trial Magistrate erred in law on relvina on the identification testimony of P.W.1 a n i P --------- p P.W.2, without cautioning himself on the dangers of sucn testimony which was very weak in that: a) Both witnesses confirmed that the appellants were total strangers. b) They claimed to have relied on lantern lamp light (1.30 hrs). c) They did not render a detailed description of how they identified the accused at the scene of the crime. 2. That the learned trial Resident Magistrate erred in law in shifting the burden of proof to the accused to disprove the veracity of the prosecution witnesses. 3 The Respondent Republic ably represented by Mr. Beda learned State Attorney, supported the appeal. I believed his stand to be correct and consequently allowed the appeal and gave. consequential orders on 2/06/2006 reserving the reasons for later. . These are the reasons: ■I am it total agreements with the grounds of appeal raised by the Appellants. As correctly submitted by the learned State Attorney, it is settled law that; that in case of an accused person being identified for the first time by a person i/ him from before, then such witness must render ___________ j accused and the terms of such identification, to the persons or persons to whom he reported the incident first, and such person or persons must also give evidence of receiving such evidence/information from the identifying person; ABUSHIRI AMIRI V.REP.(1992) TLR 178 - the description of the suspect must be prior to identifying him at an identification parade. The description is as to pecurior physical marks, weight, height, dress etc. In this case no identification parade was conducted nor was any evidence called of the witnesses to whom an early description had been made. 4 Secondly, the alleged incident occurred at night. The light offered by a lantern lamp, would not per se, unless the witnesses had explained the time the suspect spent -o r was exposed to the light to have favoured positive identification: RAYMOND FRANCIS V. REP. (1994) TLR. 100. In SAID CHALLY SCANIA V.REP. -CAT @ Mwanza Criminal Appeal No. 69/2005 (Unreported) their Lordship on Appeal held: “We think that where a witness in testifying about identifying another person in unfavourable circumstances like during the night, he must give clear evidence which leads to no doubt that the identification is correct and "//U \/vuui(J to unmistaken identification like proximity to the person being identified, the source of light and its intensity, the length of time, the person being identified was within view and also whether the person is familiar or a stranger.” In his testimony, P.W.1 stated that he was asleep when the bandits entered. They were three. One of them was wearing a mask, one holding a gun and another as piece of round iron bar “nondo.” He said he identified the 1st accused as the one holding the gun. However, PW.2, Edisia Kihoza, has a different account of this very incident. She said that there were only two bandits,-one had a mask and the other had no mask. < 5 It is trite law that were there are contradictory accounts of the same incident, the resulting doubt has to be resolved in favour of the accused. But, what is more, both witnesses did not render a description of the appellants at any time before they had seen them in Court. For those reasons the identification was not watertight as to render a conviction based on such evidence to be safe. Consequently, I allowed the appeal and gave consequential orders. Order accordingly.____ A.K. MUJUQZI JUDGE 18/02/2009 6 Date: 18/2/2009 Coram: Hon. A.K. Mujulizi,J. Appellant: Represented by Miss Sekule the State Attorney for the Republic. B/C: Mzige.RMA Miss J. Sekule, - State Attorney: The matter is for reasons for judgment. A.K. MUJULIZI JUDGE a q /no /ofenn Reasons read out in the presence of Miss Sekule learned State Attorney for the Respondent Republic. r L' “ . ' A.K. MUJULIZI JUDGE 18/02/2009 7