20110407 TZCA Tanga3

IN THE COURT OF APPEAL OF TANZANIA ATTANGA 1 , . I (CORAM: MSOFFE, J.A., LUANDA, J.A., And MANDIA, J.A.) ! i CRIMINAL APPEAL NO. 325 "A" OF 2009 RAJABU ATHUMANI ................................................. ]APPELLANT ~ ~~~~~~ THE REPUBUC ............. ...... ...................... R SPONDENT I (Appeal from the judgment of the High Court of Tanzania at Tanga) (Mussa, J.) dated the 31 st day of July, 2009 in Criminal Appeal No. 4 of 2008 JUDGMENT OF THE COURT 6 & 8 April 2011 MSOFFE, J.A.: . I The District Court of Lushoto found the appillant RAJABU ATHUMANI guilty of robbery with violence contrary tq sections 285 I and 286 of the Penal Code. The said court was satisfied that on 1 I 29/6/2007 at about 8.00 hours at Mandarine Hotel area, Lushoto, the appellant stole Shs. 20,000/=, one mobile phone makef NOKIA valued at Shs. 165,000/=, one handbag valued at Shs. 12,obo/=, an NMB I 2 I . Identity Card, all total valued at Shs. 185,000/= the ,properties of I Imelda Mchome and that before the stealing he useql violence on Imelda in order to obtain the properties. The abpellant was convicted and sentenced to an imprisonment term of renty years. I Aggrieved, he appealed to the High Court of Tanzania at Tanga. The appeal against conviction was dismissed. As for sentehce, I the High i Court opined that it was illegal for being above the statutory I . I minimum and accordingly reduced it to fifteen years i_mprisonment. •. I Still aggrieved, the appellant has preferred this secontlt appeal. He appeared in person while the respondent Republic wa6 representedI I by Ms. Pendo Makanda, learned State Attorney, who argued in I opposition to the appeal. The prosecution side fielded three witnesses. ~riefly, in their . I respective testimonies PW1 Imelda and PW2 Ason Mbaga told the I trial District Court that on the material date, time and place they met the appellant who snatched PW1's handbag containilng the above I properties and disappeared into a nearby forest. PW1 reported the I I I I I I I 3 I incident to the nearby police station. On 9/7/2007 PW?, E 2073 DC Bernard arrested the appellant. I I The appellant's defence was a general one in whibh he denied involvement in the offence in question] He went on flrther to say I that the case against him was a frame up because allefedly he had grudges with PW2. I I I Admittedly the determination of the case depended on the I crucial issue of identification. Indeed, the appellant hrs raised this point as the cornerstone of his groun s of appeal. T~e question is I . whether or not on the available evidence we can s~fely say and I ! conclude that PWl and PW2 positively identified the ap~ellant on the fateful day and time. I To start with, there is no dispute that the incident took place at I around 8.00 a.m. in the morning. It was in broad daylibht, so to say. Inspite of this, we think that mJre evidence, Jarticularly of identification, ought to have bee/ forthcoming :in the case. I I I I 4 Apparently there is no such evidence as we shall Jndeavour to demonstrate hereunder. As the evidence clearly shows, the incident was ~udden. The I appellant approached and accordingly snatched PW1 's ryandbag from i , I behind. In the premise, PW1's and PW2's vision of the appellant at I the time was that of a fleeting glance, so to speak. In this sense, we I I think that PW1 and PW2 ought to have been more fort:hcoming and accordingly tell the court how exactly they identified th~ appellant in I I the circumstances. For instance, they could have described the attire • I worn by the appellant, his physical features at the time letc. It is also I I known from the evidence of PW1 and PW2 that the I appellant fell • I down in the course of snatching the handbag. Yet we are not told I ' I the estimated time in which the appellant remained oh the ground. The time factor here would be relevant in the casb in deciding whether or not PW1 and PW2 had: ample time t~ identify the appellant. Also, there is no evidence on the estiniated distance ! I between the place where PW1 and PW2 stood vis aj vis the place I where the appellant fell on the ground. The distance would be I I 5 important in determining whether or not the witnes~es and the I appellant stood within close range or proximity to allow for correct I I identification. Finally, it is in the evidence of PW1 and PW2 that after snatching the bag the appellant ran or escaped into a ~earby forest. I If so, we think that it is difficult to believe that PW1 a~d PW2 could have easily identified the appellant who was at the time running away with his back facing the witnesses. In our overall evaluation of the evidence, we are of the I considered view that the appellant ought to have bden given the , I benefit of doubt and thereby earn an acquittal. I In the event, there is merit in the appeal. We J11ow it, quash ! the conviction and set aside the sentence. The appellant is to be I released from prison unless lawfully held. I . I 6 I I DATED at TANGA this ih day of April, 2011. J.H. MSOFFE JUSTICE OF APPEAL B.M. LUANDA ! JUSTICE OF APPEAL I I W.S. MANDIA JUSTICE OF APPEAL is a true copy of the original.