20090122 TZHC Mwanza

FILE COPY [HC] CRIMINAL APiPEAL 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.J BHOKE MANENO@ SIGWA ............. APPELLANT VERSUS THE REPUBLIC .............................. RESPONDENT JUDGMENT MACKANJA, J. The appellant and Samson Chaliche @ Kisheri, Nchama Mwita @ Masese, Msila s/o Chacha @ Sererya, Kisheri 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 Code; I 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 f~ri:h and the fifth accused persons were acquitted. The first; the second and · 1 . ,,. lI the sixth accused persons lere I convicted. The appellant featured as the first accused at the trial. For reasons which 1 are not relevant here the appellant's co-convicts appealed against both conviction and sentence in HC Cr. Appeal No 43 of 1998 which was consolidated in HC Cr. Appeal Nos. 14/1998 and No. 63/1997. 1 The High Court allowed those appeals consequent upon wtiich the convictions against the ' two appellants were quashed and the sentences which were imposed were set aside. As! it is plain from the record the appellant had to go it alone Jfter his co-convicts were set at I liberty. ' The evidence and the facts at the trial court were ably ! set forth by my brother . Mrema, J., who heard the I consolidated appeals. I will reproduce them as they appear from page two to page fite of the typed copy of the judgment, that is to say:- "The undisputed facts I at the trial court are that Kisabo Kija (PW2) is a businessman engaged I in raw gold at Matabe in Biharamulo District. On 10/9/1997, at about 4.00 p.m., Kisabo Kija (PW2) and Kassim Njega (PW3) were coming from I I Mataba gold-mines oh their way home via 2 I I I I i Ipalamasa forest. Both PW2 and PW3 were riding a motor-cycle, PW~ being the driver. I on At Ipalamasa their journey1 was obstructed, as they I I found logs placed on the road. No sooner had ' ' they reached the ·logs than they saw ·a group of 1 people, numbering about eight (8), emerging from the forest and were spe~ding towards them. The bandits attacked them and finally they succeeded I robbing the witnesses df their gold and property i • worth T.Shs.12,OOO,OOOy =. They (the bandits) I . then took flight leaving :PW2 at the scene. PW3 . I had managed to flee from the bandits .. The prosecution's case at the trial, also in this I court, is that owing to the fact that it was during the day time, i.e. at 4.00 p.m., the two appellants were identified by PW2 .. !. I \ . In his examination-in-chief PW2 claimed to ' ' have identified Nchama Mwita @ Masese (third· I accused) and Msila s/d Chacha @ Sererya (4th \ accused) as the one w~o stood near the second log which had been pl 9ced on the road to create ' obstruction, and that he'. was the very person who was armed with a clubi that he used' to assault 3 PW2. The witness (PW2) further stated that the second appellant, sixth accused, was armed with a gun which he used by pointing it at PW2 urging the latter to surrender all the properties. Kassimu Njega (PW3) was unable to identify the first appellant because he was assaulted and took flight to the forest. .However, he told the trial court that before he escaped into the forest, he managed to see and identify the sixth accused because the latter was claimed to be standing close to the witness (PW3). None of the two witnesses, however, stood firm, and gave the particulars 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. ... With respect, I am unable to differ with the second appellant's advocate. This is because Assistant Superintendent Iddi Kilagula (PWlO), who staged the identification parade, did not tell 4 the trial court any reason for not including the sixth accused (second appellant) in the parade. He only dealt with the first, second and fifth accused persons. It is also true, as urged by learned counsel, that PW2's alleged identification of the first, second and fifth accused persons was based on a guess work because PW2 did not at first tell the trial court that he saw and recognized these three persons. He appeared to have mentioned them in passing in the course of his narration in examination-in-chief. There is therefore strong doubt as whether· they were really present at the scene". (script edi;ted in some parts to conform it to grammatical syntax). Let me say that I am at one with my learned brother Judge regarding what happened at the scene. When the appeal was called for hearing on 17th November, 2008 Mr. Muna, learned counsel, appeared for the appellant while Mr. Matuma, learned State Attorney, appeared for the Republic. It was directed that the appeal was to be argued by way of written submissions and a 5 schedule to that effect was drawn up. Mr. Muna complied with court directions in this regard but Mr. Matuma did not file any written arguments. It follows, therefore, that I will 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 p.m. while he was being accompanied by his young brother, Kassim Njega (PW3). It was learned counsel's argument that the trial Magistrate was satisfied that there was sufficient evidence of identification upon which to convict the appellant, and proceeded to convict him along with others with armed robbery and sentenced him, as I've said, to thirty years imprisonment. Mr. Muna went on to make the point that the issue, therefore, is whether the evidence of identification on record, as given by the victims of the crime, is sufficient as it was held by the trial Magistrate to justify the conviction of the appellant. It is his submission that the evidence by these two witnesses, namely, PW2 and PW3, is not sufficient as it was held by the trial magistrate in view of 6 the existing contradictions between the testimony of PW2 and that of PW3. For instan~e PW2 said at page seven of I the typed copy of the trial court's record of proceedings, I when he was giving his evidence-in-chief, that he managed • to identify the third and the fourth accused persons. I ) However, the same witness t0ld I the trial court at page eight when he was being examined by the court that when the suspects were brought to hi~ for identification he managed to identify the first, second f nd the third accused persons. He identified them by their facial appearances at the scene of crime, he said. I . ' On the other hand, PW3 told the trial court that he '. I managed to identify the fifth and the sixth. accused persons I at the scene of crime. Learned counsel pO:sed the following question: if the two witnesJes were at the same scene of I crime and under the same circumstances why was it not I possible for them to simulta~eously identify the appellant as the person who had participated in the commission of the . 1 offence? That apart from! claiming that he managed to ! recognize the appellant at th'e scene this witness never gave ' a description of the clothes the appellant was wearing. I . Learned counsel submitted that this was very crucial, citing 7 the famous cases of Waziri Amani v. R [1980] TLR 250 and I I R v. Eria Sebwatol [1960] EA: 174 which. was cited in Waziri Amani v. R (supra). . I ' · According to Mr. Muna the arrest of appellant followed an allegation by PWS, PW6 ahd PW7 that the suspects were I found at Uhuru Street, f Mwanza, selling gold at t TShs.48,000/= per to/far which I was considered . to be on the I low side instead of TShs.70,000/= I per to/far. It appears that ' a to/far is unit or measure of gold. The arrest, therefore, , was based on suspicion whiclh in law cannot form a basis for I i a conviction in a criminal tri~I. However, PW3 denied that j the gold which was seized at Uhuru Street which was I subsequently displayed for :identification by PW3 was his j property. This witness categorically told the trial court that i that gold, Exh. P4, did not b~long to him. In this connection 1 he said this in his testimony: l ' "This gold sand is not among the gold which was 1 taken by the accused". I . ' It is by reason of the fetregoing that Mr. Muna, learned I 1 ' counsel, wound up his submission saying that the evidence I on record is not sufficient tb warrant the 'Conviction of the l . ' appellant. Consequently he iinvited the Court to release the l I 8 appellant from prison unless he be further held therein on account of other lawful causes~ I have myself scurried through the record of proceedings 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 out. In this connection there is the issue of the identity of the highway men who waylaid and ambushed the complaint and his brother. This issue was considered by my learned brother Mrema, J., as it can be seen at page six of I his judgment: "But in O/oo s/o Gai (~upra) also discussed the issue surrounding the identification of an accused person, relying on what the East African Court of Appeal had stated in Mohamed bin Allui v. R (1942) 9 E.A.C.A. 72, wherein it was observed, inter alia :- 1 'Where there is a question of the identity of the accused, evidence of ' there having been a description given and the terms of that description are of great importance 1 .. • • This evidence 9 • I should be given first by the person who gave the description and supported to identify the accused, but also by the person to whom the description was • II given .... In the present case no evidence of description was given by any of the prosecution witnesses. The need to describe an ' offender who is not known to the victim of the crime has been emphasized by our case law in numerous cases including in the land mark decision of the Court of Appeal in I Waziri Amani V. R. [1980] TLR, 250. As Mr. Muna correctly pointed out the appellant was arrested upon mere suspicion. However stiff suspicions may be, they do not substitute probative evidence in a criminal trial in which the charge must be proved beyond any reasonable doubt. It is by reason of the foregoing ' observations that I hold that the conviction against the appellant is unsound and the sentence unlawful. In the final result the appeal is allowed; hence the conviction is quashed, the sentence and the two orders relating to Exh. Pl and P4, which relate to gold which was i , .- ceased from the appellant, are quashed. There will be no order relating to the third and fourth ord~rs which were made by the trial court. Therefore, it is directed that the appellant be set free from prison forthwith unless his continued detention therein be justified on account of some other legally acceptable considerations. ' Josephat M. Mackanja i JUDGE At Mwanza. 22 nd January, 2009. 11