20120220 TZCA Arusha3

)~' ', f; "· IN THE COURT'bF APPEAL OF TANZANIA ATARUSHA CORAM: MUNUO. J.A.• KILEO. J.A.• And MANDIA. J.A.) CRIMINAL A~~EAL ~O. 111 OF 2009 } : ·; ~_' ,I• • ' r~\1 ' ,· 'i•."' SAID ALLY @ALLY ........................................ ~ .•.................................. APPELLA.NT VERS,US THE REPUBLIC ......................................................................... ~••••···· RESPONDENT I (Appeal from the decision of'the High Court of Tanzania at Arusha) (Sambo. J.) ; .;,1 dated the 3~.;day, Q~:December, 2008 • 1n Criminal Appeal No. 177 of 2007 15th & 21 st February, 2012 C. MUNUO. J.A.: ' The appellant, said Ally Ally ·, is challenging the conviction and sentence in Criminal Case No. 833 of 2006 in District Court of Arusha. He lost his first appeal against the ~ame. i,1;/Criminal Appeal No. 177 of 2007 in the High Court of Tanzania at Arusha before Samba, J. Hence, the present appeal. 1 . ~f-~ ~ ', ~ ! ,r,·. ; ·\,.',- ,,. ' ' '' 1,,;,· ,• c4~ It was alleged by the prosecution that on 23 rd July, 2006 at about 02.00 hours at Sakina in Kiranyi area within the District of Arumeru in Arusha Region, the appellant stole a 'mobile phone make Nokia valued at Tsh.150,000/=, one TV make Hitachi valued at Tsh. 300,000/=, one radio • ~t t, '~ • ' . !•''':l ,,. .. i' ll-'• ,;\ '.. make Sony valued at Tsh. 250,000/=,·one radio make Sumsung valued at Tsh. 200,000/=, a video deck make Panasonic valued a~ Tsh. 220,000/=, ' ,! ' I one DVD make Lg valued at Ts.~-' l20;000/=, one electrical cooker make ·_.-·\·:· ' \-r;i;· Akai valued at Tsh. 50,000/= and cash Tsh. 20,000/=, all valued at Tsh. 1,410,000/= the properties of Recho d/o Mwakalobo and immediately before such stealing threatened the said Recho Mwakalobo with a panga in order to obtain and retain the stolen property. The appellant pleaded not guilty to the charge. ' \r. ,r,:, ., ,•··\;., . ,t·· \ Deposing at the trial, PW1_ R~cho Paulo Mwakalobo stated that she ' ~J~ ~ ::~( ' ;~~'. was awakened by kicks on her g~te· at-' the dead hour of the night on the material date.; She peeped through the window and saw armed bandits '· carrying stores. She said that her windows are tinted so she could see the bandits from inside her house but the bandits were not able to see from 2 ,! ' r,~~i ~ i'j(' ::(,,' '' /J, outside. P.W. 1 raised a thief alarm seeking help from her neighbours because the bandits started breaking the door of her house. Having qroken the door, the ba_ndits entered the house and looted the property listed above. She said one of the bandits had a panga and another one carried an axe. She .further stated that she "did not identify" the bandits who stormed into her room because she was engulfed by fear. After looti~g· he,r~ . properties, the bandits fled away whereupon she called her neighbours. in cross-examination, P.W. 1 told the appellant that she identified _ hi,s face but that she did not know him · 1fi? i ,:>· .- .. f ·. ; ',"" before. In her police statement, P.W. 1 stated that she di,d not identify the bandits. J ) That trial court convicted the appellant whereupon he unsuccessfully appealed to the High Court. _Th!s(~s· ~i~.~econd appeal . . .{::.: : -i:~ l •; 3 The appellant filed a memorandum of appeal, additional grounds of appeal and a written submission su~stantially challenging his identification at night under unfavorable conditions more so because the appellant recorded in he,r police statement; exhipi,t D1 at page 80 of the record, that . i'~i., ~: . she did not identify the bandits. P.W.1 stated at page 2 of her police statement. ,f; ~~~' ,' ,i;t I ''siwezi kukumbuka sufa zad:" Meaning- ''I cannot remember their appearances. " The learned Senior State Attorney, Mr. Zakaria Elisaria, supported the appeal on the: ground that initiatjy ·th~, ~omplainant told the police she did "' not identify the bandits who invaded her dwelling house at Sakina Kiranyi . in Arumeru District and stole asso~ed ' properties listed in the charge sheet. The learned Senior State Attorney: cited the case of Waziri Amani Versus Republic (1980) TLR 250 in which the court observed that; {; •,,. i~ ., ' 4 ''Although no hard and fast rules can be laid down as to the manner a .trial Judge should determine questions of disputeB Ii!lenti(Y, it seems clear to us that he could not be said to .have properly resolved the issues unless there is shown on the record a careful and considered' analysis of all the surrounding circumstances of the crime being tried" The Court held that the time the witness had the accused under ,i·(.? ~/ (> .· . .\il:· : ·'' observation, the conditions under which such observation occurred, for instance, conditions of visibility, if there was light the source of the light and whether or not the witness knew the suspect before should be considered to get watertight identification. It was the contention of the learned Senior State Attorney that in th,is case the complainant stated that I ::l~ ,- : :?, l ! she did not know the appellant before, that she identified him by face through a tinted window and that it was at night so visibility was unfavorable so she might have ~i~ta,~~f the identity of the appellant who she did not know before. 5 We are satisfied that the issue of identification is fundamental in this case. The Court dealt with the issue identification in the case of Saidi : Chally Scania versus Republic, Criminal Appeal No. 69 of 2005 (CA) (unreported) in which court ruled; " Where a witness is testifying about identifying another person in unfavorable circumstances, like during the night he must give clear evidence which leaves no doubt that the identification is correct and reliable .... He must also mention all aids to 1Jtl' ;.'" :' ,,,, ' ' ,,, .' ' unmistaken identification like the source of light and its·intensity. '~·-············· ,i .,, . . -'~! i .',~·1; We are also aware of the cases of Republic Versus Elia Sebwato (1960) E. A. 174, and Abdalla~ Wendo and another versus Republic R. 1953) XX E. A. C. A. 166 both of which underscored the requirement of watertight identifiq:itio~ evidence to sustain a conviction. 6 ' In this case, we do not have any doubt whatsoever that there is no i sufficient evidence to sustain the. convi.ction. We accor~ingly quash the . ~· t :'t~. .-!~ \~ . ',i '.' conviction and set aside the senteric.e. }(The appellant should be set free if he is not detained for lawful cause. DATED at Arusha this 20th day· of February, 2012 .. .E-~r~ r M,v~uo >' JUSTICE OF APPEAL ,. • ~-i, E. A. KILEO 1 JUSTICEkOF.>APPEAL 'I•.'·'·' i.'•1,(·, W. S. MANDIA JUSTICE OF APPEAL I certify that this is a true copy of the original. 7 ,. l '. (i~\• :,-