abdallah kidosa and another vs the republic 2011 tzhc 2101 12 september 2011

IN THE HIGH COURT OF TANZANIA AT DODOMA (APPELLATE JURISDICTION) (DC) CRIMINAL APPEAL NO. 35 OF 2010 (Original Criminal Case No. 70 of 2008 of Iramba District Court at Iramba) 1. ABDALLAH KIDOSA 2. MOSES MICHAEL.... APPELLANTS VERSUS THE REPUBLIC...................................................RESPONDENT JUDGMENT 11/7/2011 & 12/9/1011. KWARIKO, J: The appellants herein and four others the then 1st, 2nd, 5th and 6th accused persons were jointly and together charged at the trial court with the offence of Armed Robbery contrary to section 287A of the Penal Code Cap. 16 Revised Edition 2002 as amended by Act No. 4 of 2004. It was alleged by the prosecution that the six had on the 21st day of October, 2008 at about 2.00 hours at Kizonzo village within Iramba District in l Singida Region stolen cash. Tshs. 294,590/= and a mobile phone valued at Shs. 80,000/= all total valued at Shs. 374,590/= the property of one HALULE OMARY where they used Machete (panga) to threaten him in order to obtain and retain the property. The six denied the charge hence their trial. The evidence that was tendered by the prosecution is to the effect that on the material day and time the complainant HALULE OMARY (PW1) was asleep in his house along with PW2, SAID NASSORO his nephew who was in a different room. While asleep PW1 was awaken by bandits who came and broke the door and entered into his room. They assaulted him with machete and demanded money from him. PW1 showed them Tshs. 294,590/= and the 2nd appellant took it. The 1st appellant was carrying a torch which was flashed onto the room's wall hence helped PW1 to identify the two thugs to be the appellants who had come to his house the previous day for maize business. Further, PW1 identified the 1st appellant with a mark (tattoo) on his arm and more so since he had put off his shirt while they ate together the previous day. PW2 also identified these two appellants since they had first entered his room and forced him to show where PW l's room was. The witnesses also identified the appellants at an identification parade at Shelui police post and Kiomboi police station. 2 The appellant's defence was that they were not at the material place on the alleged date and they were differently arrested for allegations of firearms possession. The trial court was satisfied that the appellants were sufficiently identified by two witnesses at the scene with the aid of torch light. This evidence was said to have been corroborated by the 1st appellant's mark on his arm which the witnesses had seen before and during the robbery. They were found guilty, convicted and sentenced to thirty (30) years imprisonment with corporal punishment of twelve strokes of cane each. The record is silent as to what was the last order in relation to the other accused persons after the appellants had been convicted and sentenced. Nonetheless, this is not the concern of this court. Thus, the appellants were aggrieved by the trial court's decision hence they filed this appeal each with his own grounds of appeal. The appellant's catch point is that the evidence in respect of their identification was not watertight and generally the case was not proved beyond reasonable doubt against them. When this appeal was called for hearing the appellants only implored this court to allow their appeal. On the other hand the respondent Republic was represented by Mr. Wambali learned State Attorney who did not oppose the appeal. Mr. Wambali gave his reasons for not supporting the 3 conviction and sentence in respect of the appellants. The issue here is whether the appeal bears any merits. This court is in agreement with both parties that the prosecution case was not proved beyond doubts against the appellants for the following reasons; Firstly, the main issue that posed for decision at the trial and before this court is whether the appellants were the ones sufficiently identified at the scene. The witnesses testified that they identified the appellants by torch light which was flashed at the wall in PW l's room. First of all torch light has been held to be ineffective in identifying thieves (S ee M OHAM ED M USERO VR [1 9 9 3 ] TLR 290). Secondly, if the torch was beamed to the bedroom wall, PW1 should have stated where was his position for him to identify the thugs. And that if the torch light was on the wall definitely it was against the holder i.e the first appellant and PW1 did not say where was the position of the second appellant for him to have seen them properly. Further, the witnesses did not explain the distance covered between them and the thugs and the appearance of the appellants was not explained. It was also the witnesses evidence that they had identified the 1st appellant with a tattoo on his arm that they had seen the previous day when the appellants had come to buy maize from PI. If at all the 1st 4 appellant's tattoo was seen the previous day when he put off his shirt while eating together with the witnesses, then it was not said that he also put off his shirt when he was said to have gone to rob (se e B U S H IR A M IR V R (1 9 9 2 ) TLR 65). It is also not common for one to undress while eating and this evidence is very unreasonable against the appellants. Also, the witnesses said that they identified the appellants at an identification parade at the police Station but no any register in that respect was tendered in court by PW4 No. E. 9023 Sgt WAZIRI and no any witness came to prove that the appellants were identified at the parade by any witness (see S IM O N M U SO KE V R [1 9 5 8 ] E.A 7 1 5 a n d V R M W AN G O [1 9 3 6 ], 3 E.A.C.A 29). Therefore, the identification of the appellants at the scene was not water tight and it did not meet the guidelines that were enunciated in the celebrated case of W A Z IR I A M A N I V R [1 9 8 0 ] T.L.R 250. At most the appellants were implicated with these allegations on account of suspicion only. However, the law says that suspicion however strong cannot form the basis of conviction (se e H A K IM U M FAU M E VR [1 9 8 4 ] TLR 201). Finally, the complainant did not prove if he was robbed and assaulted with machetes since no any evidence was tendered to prove the same. Thus armed robbery was not proved in this case. 5 Consequently, I find that the prosecution case against the appellants was not proved to the standard required in law and this appeal is allowed, conviction quashed and sentence is set aside. The appellants are to be released from custody unless otherwise lawfully held. Order accordingly. (M. A. KWARIKO) JUDGE 12/9/2011 DELIVERED AT DODOMA 12/9/2011 Appellants: All present. For Respondent: Ms. Luwongo State Attorney. C/c: Ms. Komba (M. A. KytfARIKO) JUDGE \ . 12/.9/2011 6