20120907 TZCA Mwanza

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: BWANA, J.A., MJASIRI, J.A, And MANDIA, JA.) CRIMINAL APPEAL NO 263 OF 2009 JOHN DOTTO ................................................................................APPELLANT VERSUS THE REPUBLIC ..................................... ,_ ................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (Rwakibarila,J.) th dated the 6 day of February 2008 in High Court Criminal Appeal No. 144 of 2007 JUDGMENT OF THE COURT 5 th & 10 th September, 2012 BWANA, JA: The appellant, John Dotto, was charged with and convicted of the offence of Armed Robbery contrary to sections 285 and 286 of the Penal Code. The trial court, the District Court of Magu at Magu, sentenced him to thirty (30) years imprisonment and twelve (12) strokes of the cane. His first appeal before the High Court was unsuccessful, hence this second appeal. It was alleged before the trial court that the appellant in the company of other bandits, on 31 st day of May 2006 at about 00.45 hrs, at 1 Shishani Village of Magu District, jointly and together ~tole some money and an assortment of items being the property of one Jdyce Nicholaus and ' used a "panga" immediately before or Immediately after the said stealing to threaten or obtain/retain the said property. The value of the stolen 1 money and property was given as Tsh.481,000/. i Three witnesses testified for the prosecution and other three for the I defence case. Some of the accused persons were acQuitted by the trial I court. However, the appellant was not that much lucky. He has to fight for his innocence all the way up to this ~ourt. He appea red in person while 1 I ! the respondent Republic was represented by Bibiana Kileo and Mamti Sehewa, learned State Attorneys. Throughout this case, the appellant claimed that he was not I adequately identified at the scene of crime, as the law ,requires. The case of Waziri Amani vs Republic (198D;) TLR 250 and kimilar others were cited. Likewise the evidence of Joy~e Nicholaus, PW1, and Deogratias Joseph, PW2, was relied upon to ground the conviction. Since the said armed robbery took place at night, the source of light ~or the identification I was crucial. It is the evidence of the prosecution case that a torch was the I 2 I source of light. Apparently there were two torches invo.lved-one used by the bandits and the other grabbed from PWl. It was alsb the prosecution I case that since the bandits, took a considerable time sea/rching the rooms, PW1 and PW2 could register their identiU~s. I On his part, the appellant denied ,committing the :crime. He was a stranger to the village. The prosecutiori witnesses coul9 not give specific descriptions as to how they identified him, such as gi,ving his features, I height, skin complexion, and the like. Mamti Sehewa, for the respondent Republic, didI not support the conviction ostensibly because the identification of the! appellant did not ' I ! meet the standards set by case law. He was right. We have examined the i I : court record and came to the firm conclusion that the two courts "a qud' · did not address themselves to the salient points ,tonstituting visual identification. Although it is repeatedly said that evidence on identifidation is one of the weak spots in evidential law, yet when it is the only kind of evidence I available to the court, the latter should scrutinize it carefully, taking into consideration circumstances of each case. 3 I I I I In the instant case, we are unable to establish ho1 the two courts 1 ' I 1 below did satisfy themselves as to the identity of the ~ppellant. 1 PW1 I I I j simply referred to the bandits as suspects. That she co~ld "identify" the 11 I appellant because she had conversation/I' with . him whe~I demanding the i I I return of the certificate of her husband, who was not at ihome that night. . I I I ; She did not give any description of speci 1.ic features of th~ appellant. PW2 says he saw the appellant in his room an/~ that he was s~arching the room I I using a torch. In our considered vi~w that descriAtion by the two , I I witnesses was not adequate to reh,ove I all· fear~ of inadequate I I I identification. 1 Further to the foregoing, is the issue ofil light in the house at that time of the night. It is not in dispute that the L1y source of li~ht was a torch or /r / . two at times. The bandits are said to hre had a torch. /PWl also says she had one but it was snatched from her ~Y the bandits. forch light is used to identify the one aimed at, not the hblder. In the cir~umstances of this I. I I bandits. I · I , I I I I i 4 . I In brief, we are satisfied that the appellant was not sufficiently "identified" at the scene of the armed robbery. We therefore agree with both the appellant and counsel for the respondent Republic that this appeal be allowed on the basis of that fact. I Accordingly, this appeal is allowed.· The conviction by the trial court I and upheld by the first appellate court, is quashed. The sentence of thirty years imprisonment and twelve strokes of the cane ar~ set aside. We I order further that, unless the appellant is otherwise lawfully held, he be released from prison forthwith. DATED at MWANZA this ih day of September, 20.12. I S. J. BWANA . ......., JUSTICE OF APPEAL .,.pp;:.;·-,,._, ~,.. ..., _ ' 0 ~ - (.,, 4] S. MJASIRI JUSTICE OF APPEAL ( •, 1E W. S. MANDIA ~- -( -----....... ~_.....,.-,· JUSTICE OF APPEAL ·-,~-~~: I certify that this is the true copy of the original. , Z.A.M~A DEPUTY REGISTRAR COURT OF APPEAL 5