yusufu juma another vs republic 2010 tzhc 261 2 july 2010

IN THE HIGH COURT OF TANZANIA AT TANGA CRIMINAL APPEAL NO.15 OF 2008 (Originating from Lushoto D/C Original Org. Cr. Case No.23/2002) 1. YUSUFU JUMA 1 2. MOHAMED ALLY j .................................. APPELLANT VERSUS THE REPUBLIC............................................ RESPONDENT Date of last order: 1/6/2010 Date ofjudgment: 2/7/2010 JUDGMENT MUSSA, J. This appeal originates from Criminal case No.23 of 2002 instituted in the District court of Lushoto. The appellants, along with two others were arraigned there for armed robbery contrary to sections 285 and 286 of the Penal Code, Chapter 16 of the laws. The particulars alleged that on the 22nd February, 2002 at Lawns hotel area, Lushoto District the persons accused jointly stole a sum of shs.78,000/= in cash and two wrist watches valued at shs. 150,000/=; properties of a certain Charles Mambali. It was further alleged that immediately before such stealing, the A perpetrators employed a bush knife in order to obtain and retain the properties so stolen. The appellants stood trial as second and third accused; whereas, their co-accused persons were Gerald Paulo Kusaga and Wenslaus Aloys Dem, respectively, the first and fourth accused. All of them denied the accusation; following which the prosecution lined up three witnesses in support of its accusation. From the very outset, I should point out that throughout my reading of the proceedings; I had to grapple with what appears to be the presiding officers' serious grammar ailment. To say the least, putting in place the chronological order of events was quite an involving exercise. Nonetheless, the little that one gathers from the largely unintelligible record is that the complainant, that is, Charles Mambali (PW.3) runs a grocery business situate at Lushoto. The same is operated by an assistant called Nusura Mmasi (PW.l) and; it was in the normal run of business to open the grocery morning hours and close it at midnight, or so. On the fateful day, both Charles and Nusura were at the grocery till sometime past midnight when they knocked off. They then headed home-wards passing through Lawns Hotel. Charles had a torch in hand but; just then, they were confronted and surrounded by a group of eight bandits. The intruders whom had a bush knife, momentally, ordered Charles to put off the torch light; to which he was obligatory. There then followed, from the bandits, demands of money and; again, Nusura who had a sum of shs.78,000/= in hand, surrendered it to them. What is more, in the course of the road side melee, the bandits chopped off Charles' finger and had both him and Nusura dispossessed of wrist watches. When all was done, the bandits made a bolt for it. Coming jiow to the identity of the bandits, Charles for one, laid claims as against some. He advanced visual memories of both appellants as well as the first accused. These were, apparently, well known to him even prior to the incident. For another, Nusura laid Visual identification claims as against the first accused as the man who had also earlier visited the grocery to buy cigarettes. As to what aided these witnesses in their bandit identification; there is, first, a rumbling from Nusura to the effect that light was coming from Lawns Hotel; some fifty paces away. Charles, for his part, said that upon putting off his torch light, there still was moonlight to aid him. This being the whole of the prosecution evidence; the first appellant, to begin with, completely disassociated himself from the occurrence; setting up an itinerary of errands he had been running. The second appellant, just as well, completely disassociated on a claim that the accusations were something he knew nothing about. But, theirs was a defence that did not appeal, in the least, to the learned trial Magistrate whom was, rather, impressed by the version as told by the prosecution witnesses. In the upshot, it was only the fourth accused who was left off the hook, whereas, a conviction was had as against the appellants along with the first accused. Upon conviction, all were sentenced to a term of thirty years imprisonment. As for the first accused he had absconded soon after the closer of the case for the prosecution; and so it was ordered that he commences the prison term upon apprehension. Both appellants are aggrieved upon a joint petition comprised of seven points of grievance. At the hearing before me, they fully adopted the petition without more... From the respondent end, Mr. Rugarabamu, state attorney, fully supported the conviction upon generalized assumption that conditions were favourable to a correct identification. Learned state attorney, apparently, heavily relied upon a remark by Charles to the effect that there was electricity; to ground a submission that there were street lights of which aided the alleged victims in their alleged identification of the assailants. In fact there was no evidence tending positively towards there being street lights at the scene and; to me, Charles's mention of electricity was, rather, in passing. Specific clarification is more discernible from Nusura whom, rather, suggested that the scene was lit by light coming from Lawns Hotel; some fifty paces away. * Addressing, specifically, the question of identification and; even accepting Nusura's account on the available aids, I am far from being persuaded that th e ' conditions at the scene favoured a correct identification. No wonder, Nusura herself who was just as opportuned, failed to implicate as many culprits as did Charles. To this end, it may be that the eye witnesses were mistaken in’ their identity of the appellants and; that alone suffices to overturn the conviction. The accompanying sentence is just as well set aside with an order for the immediate release of the appellants unless they be held in custody for some other lawful cause. It is accordingly ordered. K.M. MtySSA, J 10/ 06/2010 Coram: Mussa, J; Appellants: both present Respondent: Miss Naiman 4