20101027 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA ATDODOMA DC CRIMINAL APPEAL NO. 41 OF 2010 (Originating from Criminal Case No. 97 of 1998 of the District Court of Mpwapwa at Mpwapwa) 1. BENEGO MATHA YO ------------------- 1st APPELLANT 2. IGNASI MGENI -------------------------- 2 nd APPELLANT 3. SHIDA.SADALLAH -----------------------3 rd APPELLANT VERSUS THE REPUBLIC--------------------------- RESPONDENT JUDGMENT 15 - 09- 2010 & 27-10-2010 S. S. MWANGESI J.: The three appellants herein plus others stood charged at the District court of Mpwapwa with the offence of armed robbery contrary to section 285 and 286 of the Penal Code Cap 16 Volume 1 of the Laws Revised as amended by Act No. 10 of 1989. It was the prosecution case that on the 14th date of April 1998 at about 2330 hours at Manyata village within the District of Kongwa in Dodoma Region, the accused persons did jointly and together steal cash Tshs. l ,050,000/= and one radio cassette valued at Tshs. 65,000/= total valued at Tshs. l, 115,000/= from one Alphonse Ndikwege and immediately before or after such time of stealing, they did threaten with a short gun by firing one bullet in order to retain the said stolen money and radio. As the charge got denied by all accused persons, the prosecution did summon a total number of five witnesses to establish the case against all accused persons. After the trial Learned Magistrate had heard the evidence from the witnesses from the prosecution as well as the defence of all the accused persons, was convinced beyond reasonable doubts that the offence had been established against all the accused persons the appellants herein inclusive. Subsequent to the conviction, each of the appellants was sentenced to go to jail for a period of thirty years. The decision by the trial District Magistrate did aggrieve the appellants dt hand who have decided to challenge such findings of the trial court. The appeal by the appellants has lasted in this court for a long time because there were some procedural irregularities that got occasioned by this court in the course of hearing their previous appeal a thing that moved the Court of Appeal to annul the said proceedings and thereby ordering for retrial of the appeal. In their joint memorandum of appeal, the appellants have enumerated about five grounds of appeal. It has been argued by the appellants in their first ground of appeal that, the evidence of identification alleged to have been made to the appellants by the prosecution witnesses which was relied upon by the court to found conviction to the appellants, was not sufficient to justify the conviction. This is from the fact that the intensity of the light which enabled the identifier to identify them was never made clear. 2 The appellants have further contended in their appeal that the trial court did err at law and fact when it did just generalise that all the appellants were guilty of the offence which they stood charged with without elaborating as to how each of the appellant had been personally implicated by the evidence that got tendered in court. It is the averment of the appellants that such procedure as adopted by the trial court was improper. And in the last ground of appeal, the appellants have asserted that in reaching at the findings which it made, the trial court did not consider their defence and that the evidence prosecution witnesses which was relied upon was so weak and therefore did not justify unless it had been corroborated by some other evidence. On those bases, the appellants have requested this court to find merit in their appeal and as a result they be acquitted and set free. When the appeal came for hearing, the appellants did appear in person to prosecute their appeal. When required to amplify their grounds of appeal, they all told the court that they had nothing to add to what was already contained in the same save for the second appellant. In addition to what is contained in the joint memorandum of appeal, the second appellant did tell the court that he was denied by the trial court the right of giving his defence to the charges which he stood charged with. On the other hand, the respondent - Republic was represented by Ms Nsana learned State Attorney. For her party, 3 she did not support the conviction that was reached upon by the trial court. It was argued by the learned State Attorney that, in founding conviction to the appellants in this case, the learned trial Magistrate was convinced by the identification alleged to have been made by PW 1 to all the appellants, which was made with the use of kerosene lamp. However, the intensity of the light from the said kerosene lamp was not explained to the court so as to convince it if it was sufficient enough to facilitate proper and unmistaken identification. Regarding the way the evidence that was tendered during the trial of the case got evaluated by the learned trial Magistrate, it was her view that the same did not comply with the requirement under the provisions of section 312 of the Criminal Procedure Act in that, the details as to how each',~ appellant got implicated to the offence which he got ·; convicted with was not given by the court. As such, the •;t learned State Attorney was at one with what got submitted by the appellants that the judgment by the trial court was so general. And as regards the contention by the second appellant that he was denied the right of giving his defence to the case which he stood charged with, Madam Nsana was again at one with the appellant that indeed the appellant was denied such right because the records of the trial court does reveal that he did not give such defence evidence. On those bases, the learned State has requested this court to find merit in the appeal by all the appellants and thereby' allow it. The task of this court in the light of the foregoing submissions, is to determine as to whether there is any merit in 4 . the appeal by all the appellants. It is apparent from the records in the case file as well as the judgment of the trial court that the substance of this case did hinge on the evidence of visual identification of the appellants at the scene of the incidence. The question thus which this court had to ask itself, is as to whether according to the evidence tendered at the trial court by mainly PWl and PW4 which were the ones relied upon in founding conviction to the appellants, it can affirmatively be held that there was ample evidence from the prosecution witnesses to sufficiently establish that all the appellants did· effectively participate in the armed robbery at issue. The court was told that the offence got committed during night at about 1100 hours or thereafter. PW 1 who was the victim of the incident did further tell the court that he did manage to identify his assailants with the aid of light from a kerosene lamp which was burning when the bandits broke into his house. And that he was able to identify them because they were all his fellow village mates staying in the same village of Manyata. On his part, Pw4 did inform the court that while moving to the house of PWl during the night o the fateful date after having heard the noises, while at a distance of about ten paces or so from the bandits were, he did lit his torch to their direction and managed to identify them before one of them could fire his gun to scare him a thing that made him to run away. This court is hesitant to hold that such condition was conducive enough to facilitate perfect identification that can safely be relied upon by the court to found conviction. In so opining, I have in mind the decision in the landmark case of 5 Waziri Amani Vs Republic [1980) LRT 250 where the Court of Appeal observed inter alia thus: "Evidence of visual identification is of the weakest kind and unbelievable. No court should act on evidence of visual identification unless all possibilities of mistaken identity are eliminated and the court is fully satisfied that the evidence before it is absolutely watertight." And regarding the mere use of light from a torch during night, the same Court of Appeal had a word in the case of Mohamed Mselo Vs Republic [ 1993) where it stated that: "Identification of thieves during night with the aid of torch light is not safe to be relied upon to found ,. · conviction." From the foregoing observations of the Court of Appeal, I am inclined to side with the opinion advanced by the learned State Attorney that, putting into consideration the circumstances under which the offence at hand got committed, that is during night under threats of gun firing, the identification alleged to have been made by the two witnesses to the appellants, could not be safely be relied upon by the court to found conviction to the appellants. Furthermore, as contended by the second appellant and seconded by the learned State Attorney, the second appellant was not given the chance of entering his defence to the charged offence. The ultimate thereof, is hold that the appeal by all appellants is meritorious. The decision of the trial court is thus 6 hereby quashed and the subsequent sentences imposed, are set aside. All the appellants are to be set at liberty forthwith unless legally held for any other justifiable cause. JUDGE 27 - 10 - 2010 Date : 27 /10/2010 Coram: Hon. S.S. Mwangesi, J. 1st Appellant: Present in person 2nd Appellant: Present in person Jrd Appellant: Present in person Respondent: Kyando (SA) C/C: R. Nyembe Kyando: Hon. Judge. The appeal comes for judgment and we are ready. 7 I . JUDGE 27 - 10 - 2010 8