20110518 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA AT DODOMA (APPELLATE JURISDICTION) (DC) CRIMINAL APPEAL NO 76 OF 2010 (Originating from the District Court of Singida in Criminal Case No 194 of 2009) IDDI S/O ISSA@ DINGI S/O ISSA.............................. APPELLANT VERSUS THE REPUBLIC ................................................. RESPONDENT 06/04/2011 & 18/05/2011 JUDGMENT KWARIKO, J. J. The facts of the case that brought about this appeal are not complicated and can simply be recapitulated as follows: one SELEMANI S/O JUMANNE (PWI) of Kibaoni area in Singida Municipality had finished his day's activities on 05/06/2009 and was walking home at about 7. 30 pm. Whilst in his the way home and talking on his mobile phone, PWI was invaded by three men who beat him until he fell down. The invaders snatched his mobile phone make Nokia valued at tshs 60,000/= and cash money tshs 100,000/=. PWI's evidence revealed that although it was a dark night but the he managed to identify the appellant herein among the three thugs who invaded him. That the appellant had put on a cap but his face was visible and it was easy to identify him because he was known to him· before and he had married his cousin. The appellant was also in close combat with PWl and was the one who was carrying a machete and tried to cut him with it. He went home after the thugs had left. PWl reported the incident to the police the following morning where he found one No. E 3351 CORPORAL MBANYANI (PW2) who took down his statement and mentioned the appellant as a person he identified at the scene. On 10/06/2009 the police got information from the villagers that they had arrested the appellant after he had visited his mother-in-law's home and ·created a violent scene there. The police went to get the appellant from the village and at the station he refused to give his statement. Following the arrest the appellant was brought before the trial court with one count of Armed Robbery contrary to section 287 A of the Penal Code Cap 16 Vol. 1 of the Laws, R.E.2002 as amended by· Act no 4 of 2004. It was alleged that on the 5th day of June, 2009 at about 19.30 hours at Kibaoni area within the Municipality and Region of Singida the appellant stole the aforementioned items the property of SELEMANI 5/0 JUMANNE and had threatened him with a machete (panga) in order to obtain and retain the said property. The appellant had denied the charge hence a full trial. 2 In his defence the appellant testified on his own behalf and called one witness. The appellant raised a defence of alibi to the effect that he was at Chungu village to buy maize during the material date and returned home on 06/06/2009. This alibi was supported by MAULID S/O SHABAN (DW2). At the end of the trial the court found that the appellant was satisfactorily identified at the scene and that he failed to prove his alibi, thus he was convicted of the offence of Robbery with violence since there was no proof that a machete was used in any way during the robbery hence was sentenced to imprisonment of seven (7) years. Having been aggrieved with the decision of the trial court the i appellant filed this appeal where he raised eleven grounds of appeal which in total complain that the prosecution case against him was not proved beyond reasonable doubts. During the hearing of the appeal the appellant did not add anything useful but only implored this court to consider his grounds of appeal and allow the same. Mr. Kyando learned State Attorney for the respondent Republic opposed this appeal on similar grounds to those of the trial court when it convicted the appellant. 3 I should state from the very start that although the trial court was best placed to decide on factual matters since it had the privilege of seeing and hearing the witnesses testify, this being the first appellate court is duty bound to revisit the evidence and make its own findings and where necessary may differ from the trial court. As the available record shows the main issue for consideration before the trial court and also now is that of identification of the appellant at the scene. Both the trial court and Mr. Kyando learned State Attorney were emphantic that the appellant was satisfactorily identified since he was well known to the complainant before and the two were in close combat during the robbery. This court has thoroughly gone through the evidence of the complainant (PWl ). I can only say that in the absence of any source of light for identification, one cannot consider other conditions for proper visual identification at night like distance between the assailant and the witness or whether they knew each other before. In the case at hand PWl who was the only witness for identification testified in his own words that. he was invaded during a "dark night". Now since it was dark night and the witness did not state the duration the robbery took place the possibility that he identified any of the thugs was negligible or not there at all. After all PW1 said that he was invaded while talking on his mobile phone, meaning that he was taken by surprise by the thugs. Also that he was beaten and fell down soon after invasion hence he ought to have explained how he was able to observe and identify one of his invaders. 4 Further, PWl did not explain the appearance not only of the appellant but also those other thugs he said did not identify. Therefore the conditions for proper visual identification were not favourable in this case and did not meet the guidelines enunciated in the celebrated case of the Court of Appeal of Tanzania of WAZIRI AMANI V R [1980] T.L.R 250 the trial magistrate and Mr. Kyando had cited. This court also agrees with the appellant that had the complainant identified him at the scene he would have reported him to the local area leaders or to his family members immediately since he said he knew him before and were in-laws. As rightly complained by the appellant, the complainant was expected to raise alarms upon invasion by thugs or soon after he was let free more so because he was allegedly invaded in the town setting ; he did not do that and this creates doubt to the fact that he was invaded and robbed. Instead, the complainant swiftly waited until morning of the following day when he reported the matter to the police. If PWl informed his wife about this incident and the appellant's identity as he alleged why wasn't she called to testify? This question was not answered during the trial. It is also doubtful that PWl mentioned the appellant to the police as his identified assailant because there is no evidence to show that he was looked after soon after the incident. Instead, the evidence by PW2 is to the effect that the appellant was arrested by villagers on 10/06/2009 after he had created mayhem at the home of his mother-in-law. Seemingly, the 5 appellant was taken to police for different allegations and met the present charge there but not that he was mentioned by the complainant as the one he identified at the scene. Therefore, the foregoing analysis ground to the conclusion that not only that the prosecution did not prove that the appellant was identified at the scene but also that the complainant had at all been robbed that night. Thus, the prosecution case was not proved to the standard required in law hence this appeal is allowed, conviction quashed and sentence is set aside. Consequently, it is ordered that the appellant be released from prison unless he is held further for other lawful cause. Order accordingly. JUDGE 18/05/2011 COURT: Right of appeal fully explained. c···---:·_·_·];J?) (~.A-~~) JUDGE 18/05/2011 6 AT DODOMA 18/5/2011. Appellant: Present. For Respondent: Ms Magoma State Attorney assisted by Mr Chawene State Attorney Trainee.· C/c: Ms Komba. 7