20100306 TZHC Dar es salaam

IN THE COURT OF APPEAL OF TANZANIA >.., AT DAR ES SALAAM {CORAM: RAMADHANI, C.J., MUNUO, l.A., And MJASIRI, l.A.) CRIMINAL APPEAL NO. 411 OF 2007 HEMED ATHUMANI MNEKA .........•................................. APPELLANT VERSUS THE REPUBLIC .......................................................... RESPONDENT {An Appeal from the Decision of the High Court of Tanzania at Dar es Salaam) {Shaidi, J.) dated the 7 th day of August, 2007 in Criminal Appeal No. 113 of 2006 JUDGMENT OF THE COURT RAMADHANI, C.J.: On 18th October, 2005 at about 2000 hours at Yambo Vituka, Temeke, Dar es Salaam, the house of Suzan Sophia Makamba (PWl) was stormed by a group of six armed persons. They took some money, other items of property and also beat up PWl. The matter was reported to_ the police and the appellant, while he was at a police station because of a totally different matter, was singled out by PWl as one of the robbers. He was convicted by the District Court of Temeke and his appeal was dismissed by the High Court (SHAIDI, J.). He still protests his innocence. 2 The appellant was in person and unrepresented while the respondent/Republic had the services of Ms. Evelyn Makala, learned Senior State Attorney who did not support the conviction and the sentence. PW 1 was the only eye witness and the appellant, in his oral submission before us, was at pains to scrutinize her evidence. The appellant pointed out that PW1 said that after the ordeal she was hospitalized for three days and then she stayed at home for two weeks before she went to the police station. So, if the incident took place on 18th October, 2005, then PW1 was in hospital until 21 st October and, . if you add the two weeks she was at home, then she went to the police station on 4th November. We wonder with the appellant when the investigation officer, D/Sgt Aden (PW3), said: I continued with the investigation until 31/10/2005 at about 8.00 a~m. I saw the complainant [PW1] at the Chang'ombe Police Station I welcomed her and gave her a chair to sit ... This means that PW3 saw PW1 at the police station three days before she had gone there! That is not possible. 3 Ms. Makala pointed out that the appellant's grounds of appeal boil down to two issues: identification by PW1 and the retracted confession which was taken without a trial within trial. As for the second matter we drew the attention of the learned Senior State Attorney to the fact that the . first appellate court (SHAIDI, J.) discarded that piece of evidence and so, that point should not detain us. We agree with Ms. Makala that there was no identification parade and that PW1 's identification leaves much to be desired since she did not describe the kind of light which enabled her to see the appellant, who was a total stranger, clearly so as to be able to identify him when she saw him casually at the police station. We are of the decided opinion that the evidence which secured the appellant's conviction leaves much to be desired and falls short of the requirement of being beyond reasonable doubt. We, therefore, allow the appeal, quash the conviction and set aside the punishment of imprisonment for a term of thirty ~ears impo5-e_d_0_o_tbe_app_el1ant._ _ __ We also annul the order for compensation to the tune of Shs. 8,200,000/=. The appellant should be released immediately unless his continued incarceration is lawful. 4 ,.,-.. \ DATED at DAR ES SALAAM this 6th day of March, 2010. A.S.L. RAMADHANI CHIEF JUSTICE E.N. MUNUO JUSTICE OF APPEAL S. MJASIRI ~-,. rtl (. JUSTICE OF APPEAL ~--✓,..,.. . 0 ' . 1/tt1 (.· . ::, ·. .. · hat this is a true copy of the original. 0 \ ·. ~~,__... .~-- . .-!,';{,