20090210 TZHC Mwanza

IN THE HIGH COURT OF THE UNITED REPUBLIC OF I ) TANZANIA IN THE DISTRICT REGISTRY . AT MWANZA [HC] CRIMINAL APPEAL NO 179 OF 2004 ( Original Criminal Case .No 165 of 1997 of the District Court of Geita District at Geita. . Before: L. N. B. Ngovongo, Esq. DM.) BHOKE MANENO@ SIGWA ............. APPELLANT VERSUS THE REPUBLIC ........ II •••••••• I I I ••• I I I I I. RESPONDENT JUDGMENT· MACKANJA, J. The appellant and Samson Chaliche @ Kisheri, Nchama Mwita .@ Masese, Msila s/o Chacha @ Sererya, Ki~heri Rango @ Chalika and Machera s/o Mwita were jointly charged with three counts. On the first count they stood trial .on a charge . . . . of armed robbery c/ss 286 and 286 of the Penal Co.de; secondly they were charged with unlawful wounding c/s 288(1) of the- Penal Code and .thirdly, they were tried on a charge of ·assault causing actual.. bodily harm c/s 241 of the. Penal Code. At the end of the trial the fourth and the fifth I! accused persons were acquitted; The first, the second and ) the sixth· accused persons werJ convicted. The appellant featured as the first accused at the trial. For reasons which - I are not relevant here the appe\llant's co-convicts appealed against both conviction and sentence in HC Cr. Appeal No 43 of 1998 which was consolidated in /:IC Cr. Appeal Nos. - I - 14/1998 and No. 63/1997. The High Court allowed those I appeals ·consequent upon which the convictions against the · two appellants were quashed an,d the sentences which were imposed were set aside. As it i~ plain_ from the record the appellant had to go it alone after his co-convicts were set at liberty. . I I The evidence and the factslat the trial court were ably set forth by my brother Mrema, J., who heard the . I - consolidated appeals. I will repnoduce them as they appear from page two to page five bf the typed copy of the . I - - judgment, that is to say:- "The undisputed factsl at the trial court are that Kisabo Kija (Pw_2) is a Ibusinessman engaged in raw gold at Matabe in Biharamulo District. On ' 10/9/1997, at about 4.00 pl_m., I . Kisabo Kija (PW2) . - and · Kassim Njeg·a (PW3) were coming from ' ' Mataba gold-mines on their . way home via 2 I Ipalamasa forest. Both PW2 and PW3 were riding I on a motor-cycle, PW~ being the driver. At I Ipalamasa their journey, was obstructed, as they I . found logs placed on the I road. No sooner had . I . they reached the logs thari they saw a group of I people, numbering abou~ eight (8), emerging from . I . the forest and were spe~ding towards them. The I - - bandits attacked them and finally they succeeded I I · robbin_g the witnesses of their gold. and property I worth T.Shs.12,000,000/=. They (the bandits) I . then took flight leaving PW2 at the scene. PW3 I had managed to flee from the bandits. The prosecution's c~s-e at the trial, also in this I court, is that owing to the fact that it was during I the day ti-me, i.e. at 4.0Q p.m., the two appellants 1 were identified by PW2 ... • I In his· exam-inationi-in-chief PW2 claimed to I have identified Nchama Mwita @ Masese (third I . accused) and Msila s/o Chacha @ Sererya (4 th . I accused) as the one who stood near. the second I log which had been placed on the road to create . . I ·. obstructio_n, and that h~ Iwas the· very person who was armed with a club, that he used to assault I . I . PW2. The witness (PW2) fu_rther stated that the I 3· . ' '. second appellant, sixth Jcused, was armed with a J gun which he used by Jointing it at PW2 urging the latter to surrender allJthe properties. Kassimu Njega (PWS) was unable to identify - - I . - the first appellant because he was assaulted and took flight to the forest. However, he told th~-trial - court that before he es~aped into the forest, he . l . managed to ·see and identify the sixth accused I beca·use the latter was/ claimed to be ·standing I close to the witness (PW:3). . · None of the two Jtnesses, however, stood I firm, and gave the partiiculars. of the description which enabled them to identify these appellants out of the alleged eight bandits. The question of improper or mistaken identification of the appellants features in this appeal as the common and central ground for appeal against the decision of the trial court .... I . With respect, I am unable to differ with the second appellant's adv?cate.. This is because 1 Assistant Superintenden t Iddi Kilagula (PW10), who· staged the identifiJation parade,· did not tell thetrial court any reaJon for not including the sixth accused (second 1ppellani) in the parade. 4 I I He only dealt with the1 first, second and fifth accused persons. It is· also true, as urged by I learned counsel, that PW2's alleged identification ' of the first, second and rfth accused persons was . . based on a guess work1 because PW2 did not at first tell the trial court that he saw and recognizeq - these three persons. i He appeared to have • I mentioned them in passing in the course of his l narration · in examination-in-chief. There· is ' therefore st~ong doubt: · as w_hether they were really present at the scene". (script edited in some parts to conform it to grammatical syntax). . i Let me say that I am at o~e with my learned brother . I Judge regarding what happened at the scene. • I ' I When the appeal was called for hearing on 17th ' November, 2008 Mr. Muna, 1learned counsel, appeared for the appellant while Mr. Matuma, learned State Attorney, appeared for the Republic. It was directed that the appeal . I was to be argued by way ,of written submissions and a schedule to that effect was drawn up. Mr. Muna _complied with court dire·ctions in this regard but Mr. Matuma .did not file any written .arguments. 'It follows, therefore, that I will I 5 decide this appeal with the disadvantage of not having heard :] the Republic's contribution. Mr. Muna, learned counsel, has argued that according to the evidence on record, the complainant, Kisabo Kija, a dealer in gold, was ambushed by highway men before robbing him of his gold. The incident took place at 4.00 I p.m. whil~ he was being accqmpanied- by his young brother, Kassim Njega (PW3). It w 9s learn~d counsel's argument ' that the · trial Magistrate was satisfied that there was sufficient evidence of identification upon yvhich to convict the appellant, and proceeded to ·convict him along with others with armed robbery and sentenced him, as I've said, to i thirty years impriso_nment. Mr. Muna went on to make. the point that the issue, therefo~e, is whether the_ evidence of identification on record, as given I by the victims of the crime, is sufficient as it was held by the trial Magistrate to justify the conviction of the appella~t. It is his submission that the I evidence by these two witnesses, namely, PW2 and PVy3, is not sufficient aS)it was held by the trial magistrate in view of the existing contradictions between the testimony of PW2 and that of PW3. For instance PW2 .said at page seven -of 1 th~- typed copy of the trial court's record of proceedings, when he .was giving his evidence-in-chief, that he managed 6 I to identify the third and the fourth accused persons. However, the same witness tdld the trial court at page eight when he was being examinettl by the court that when the suspects were brought to him:1 for identification he managed . . to identify the •first, second and the third accused persons. I He identified them by their facial appearances at the scene . I of crime, he said. On the other hand, PWB told the trial court that he . ' managed to identify the fifth f nd the si~th accused persons at the scene of crime. Lea_rn d counsel posed the following 1 question: if the two witnesses were at the same scene of crime and under the same ~ircumstances why was it not I possible for them to simultanJously identify the appellant as . ' the person who had partici·pated in the commission of the offence? That apart from dlaiming that he managed to recognize the app·ellant at the! scene this witness never gave . . a description of the clothes/ the appellant was wearing. Learned counsel submitted that this was very crucial, citing . . I . · the famous. c~ses of Waziri Arpani v. R [1980] TLR_ 250 and R v. Eria Sebwatol [1960] EA 174 which was cited in Waziri . I J.lmani v. R(supra). . j According to Mr. Muria t7e arrest of appellant f~llowed . · an allegation by ryvs,_ PW6 a d PW7 that the suspects .wer~ 1 . 7 ' I found at Uhuru Street, Mwanza, selling gold at TShs.48,000/= per tollar which was considered to be on the low side instead of TShs. 70,000/= per to/far. It appears that a to/far is unit or measure qf gold. The arrest, th_erefore, I . . was based on suspicion which in law cannot form a basis for ' a conviction in a criminal trial. However, PW3 denied· that· the gold which was seized1 at Uhuru Street which was subsequently displayed for identification I by PW3 was his ' property. This witness categorically told the trial court that that gold, Exh. P4_, did not belong to_ him. In this connection he said this in his· testimony: i . "This gold sand is not a,mong the gold which was taken by the accused". It is by reason of the foregoing that Mr. Muna, learned . . ' counsel, wound up his submission saying that the evidence · on record is not sufficient td warrant the conviction of the appellant. Consequently he i,nvited the Court to release the appeliant from prison unless he be furthe'r held therein on l . account of other lawful causes. I have myself scurried through the record of I p~oceedings and I am of the considered view that the prosecution did· not prove the charges against the- ·appellant . . due to the glaring shortcomings which Mr. Muna_ has pointed 8 out. In this connection there is the issue of the identity of I the highway men who waylaid and ambushed the complaint I and his brother. This issue .was considered by my learned ' . . I brother Mrema, J., as it can be seen at page six of his judgment: . "But in 0/oo s/o Gai (supra) .also discussed the ! . issue surrounding the i~entification of an accused ' . · person, relying on whatl the East African Court of Appeal had stated in ;Mohamed bin A/Jui v~ R (1942) 9 E_.A.C.A. 72, ·rhere\n it was observed, inter alia:- I' 'Where there is a question of the I identity of the a~cused, evidence of there having been· a description given· I and the terms of that descriptio·n are of 1 great importance ' .... This evidence I should be given first by the person vvho· gave the description . I and supported to identify the accus~d, but also by the . I person to. whom the description was ' • given .... If . I ' In the present case_ no evide-~ce of descrip_tion was given by any of the prosecution. witnesses. The need to describe an I . offender who is not known to the victim of the crime has I 9 I 1 been emphasized by our 1case law in : nun1erous cases , including in the land mark decision I of the Court of Appeal in . ' Waziri Amani v. R. [1980] TLR 250. As Mr. Muna correctly pointed. out the appellant was I . arrested upon mere suspicion. However stiff suspicions may be, they do not substitute probative evidence in a criminar trial in which the .charge 1.must be proved beyond any reasonable doubt. . It is by reason of the foregoing I observations that I hold that the conviction against the appellant is unsound a0ct the' sentence unlawful. In the final result the· appeal is allowed; hence the I conviction is quashed, the sentence. and the two orders 1 relating to Exh. Pl and P4, which relate to gold which was ceased from the· appellant, are quashed. There will ·be no order relating to the third and fourth orders which were I made by the trial court. Therefore, it is directed that the . I appellant be set free from prison forthwith· unless his continued detention therein be justified on account of some lO ' ,.. ••. ,. ;l ' } Date: 10/2/2009 Coram: F. W. Mgaya - District Registrar Appellant: Present For Republic: Present Bf Clerk: Sikudhani Court: This judgment of the Court is delivered before me in ·chambers this 10th day of February, 2009. F. W. Mgaya DISTRICT REGISTRAR 10/2/2009 I certify that this is a true copy of the original.