20110817 TZHC Dodoma

I I IN THE HIGH COURT OF TANZANIA AT DODOMA. (DC) CRIMINAL APPEAL NO. 74 OF 2010 (Originating from Criminal Case No. 321 of 2007 of Manyoni District Court at Manyoni) JITINYA MAKAJI ~ MICHAEL ........... APPELLANT VERSUS THE REPUBLIC ............................. ... RESPONDENT JUDGMENT 04fl/2011 & 15/8/2011. KWARIKO, J: The facts of the case from the prosecution which led to this appeal reveal that on 10/10/2007 one FREDRICK S/0 EDWARD, -(PW1) was driving a bus registration No. T. 930 ADB from Manyoni to Heka village. About eight kilometres from Manyoni three masked and armed thugs emerged and stopped the bus after they fired gun shots. The driver stopped and the passengers jumped down. -- The thugs ordered the passengers to lie down and when they complied they were robbed various properties including cash· money, mobile phones and bags of· sugar and wheat flour were off loaded from the bus. While the offloading continued a herdsman appeared with cattle where thugs were. shocked which act led 1 j ', \ one of them who was guarding the victims to run away into the bush. In the process of running his mask fell down and then took it and covered the face. At that point PW1 and his conductor SAMI S/O PAULO, PW3 managed to identify that unfortunate thug to be the appellant herein who was known to them before. After the robbery PW1 drove the bus away where he stopped at Kashangu village and managed to get a phone and called the Police. The Police went to that village and took the witnesses' statements. The appellant herein was arrested on 21/10/2007 while at his relative SAGANDA S/O MADUKA'S (PW2) home in Manyoni and was interrogated where he denied the allegations. Nineteen (19) pairs of sandals alleged to have been stolen at the scene were tendered by NO. F 2602 D/CPL SALUM (PW4) and was admitted as exhibit T1. The appellant thus was charged with two counts of Armed robbery contrary to section 285 and 286 of the Penal Code Cap. 16 Vol. 1 of the Laws Revised Edition 2002 but actually the offence and law ought to have been cited Armed Robbery contrary to section 287A of the Penal Code cap. 16 Vol. 1 of the Laws Revised Edition 2002 as amended by Act No. 4 of 2004. It was alleged by the prosecution that on the 10th day of October, 2007 at 14.00 hours _between Manyoni town and Mamba village within Manyoni District in Singida Region the appellant stole various properties belonged to FREDRICK S/O EDWARD and SAMI S/O PAULO all total valued at Tshs. 867,000/=. 2 \,I The appellant denied the charge and in his defence he said that he was arrested on 21/10/2007 at PW2'S residence in the presence of his (PW2) children as himself had gone to church. He was taken to police and interrogated in relation to various robbery incidents which he denied. He was thus asked to sign his statement and when he complied he was taken to court on 24/10/2007. It was his contention that the alleged identification in his respect was not water tight since the witnesses' testimonies were contradictory from one another. At the conclusion of the trial the court found that the evidence in relation to identification of the appellant was tight thus he was convicted and sentenced to imprisonment of thirty (30) years in the first count and twenty (20) years in the second count. The sentences were ordered to run consecutively. On being aggrieved with the trial court's decision the appellant brought this appeal where he raised about four (4) grounds thereof. The .appellant's catch point is that is identification at the scene was not proved to the standard required in law. During the hearing of the appeal the appellant did not have much to say where he only implored this. court to consider his grounds of appeal and allow the same. On the other hand Ms. Magoma· learned State Attorney appeared on behalf of the respondent Republic and she supported this appeal where she gave reasons for her stance. I will refer to the submission in the course of this judgment. 3 This court agrees with both parties that the prosecution case at the trial was not proved beyond doubts against the appellant for the following reasons: Firstly, as rightly submitted by Ms. Magoma the witnesses, PW1 and PW3 did not state what was the duration of time taken after the mask by the thug had dropped to be refixed so that it could have given them ample time to identify him properly. Also, since the witnesses said the thug ran into the bush to avoid the eyes of cattle's herdsman that means he was away from them hence they ought to have stated the distance that was between them for easy of identification. Also the witnesses did not explain what was the general appearance not only of the appellant but also the other two thugs. Further, since PW3 said that they were ordered by the thugs to lie down it is definitely not possible that they identified any thug at the scene. How could they have inspected the thug's face while lying down was not explained during the trial. Secondly, the witnesses did not state how they knew the appellant before which could have made his identification easy. They just said they knew him without any further details. They did not say what was his residence or for how long they knew him before. Thirdly, PW1 and PW3 as eye witnesses, their evidence differed materially. While PW1 said the conductor of the bus ran away together with 4 other passengers upon invasion, PW3 said he was just there at the scene and lied down as was ordered by the thugs while the robbery continued. This contradiction shows that the witnesses were hiding something or were , not telling the whole truth, this creates doubt on the prosecution case which ought to have been resolved in favour of the appellant, and I hereby do. Thus, the conditions for favourable visual identification were not proved in this case to meet the guidelines enunciated in the celebrated case of WAZ/RI AMAN/ V R [1980) TLR 250. Also, this court agrees with Ms. Magoma that exhibit T1 was received in court illegally because the appellant was not given opportunity to say anything before the same was admitted in evidence. And the sandals were not properly identified by the complainant before tendered in evidence. This evidence was not good evidence and it is hereby expunged from the record. Further, as to why it took about two weeks before the appellant was arrested if the police were told that he was the suspect it was not explained by them. This adds to the already created doubts on the prosecution case. Consequently, I find that the prosecution case was not proved beyond doubts against the appellant. The appeal is thus allowed, conviction quashed and sentences set aside. The appellant is ordered to be set at liberty unless his continued incarceration is related to other lawfully causes. Order accordingly. 5 c_:::m.~-·-·---- \'~·--·--·---= (M. A. KWARIKO) JUDGE 17/8/2011 AT DODOMA. 17/8/2011 Appellant: Present. For Respondent: Ms. Luwongo State Attorney. Cle: Ms. K/1/~~-?~~~~~~r~O) f ·_- >:.1"">·· - JUDGE ~<-- ,~, ,· -'.~( -·, ·;_/ 17/8/2011 . ,,,._ .. '/ '~;~;~i(,i; ;,:_~::;:.:. ,::::;.:.,_.:j:>;/ 6