20120602 TZHC mWANZA

St ·' IN THE COURT OF APPEAL OF TANZANIA ATMWANZA (CORAM: RUTAKANGWA. l.A., KILEO, J.A., And ORIYO, l.A.) CRIMINAL APPEAL NO. 256 OF 2010 WAMBURA MNIKO BUNYIGE .................................. APPELLANT VERSUS THE REPUBLIC ....................... ~ ...................... ~····· RESPONDENT {Appeal from the decision of the High Court of Tanzania at Mwanza) (Mchome, l.} dated the 28th day of l~ly, 2004 in Criminal Appeal No. 160 of 2003 JUDGMENT OF THE COURT 1 st & 4 th June, 2012 RUTAKANGWA, l.A.: On the night of 23 rd December, 2001, marauding cattle rustlers attacked Nyakunguru Village in Tarime District. They were armed with a gun. The first victim was one Joseph s/o Nyambeya (PWl). The bandits fired their gun twice before breaking into his cowshed. He raised an alarm, but nobody went to his aid. As he realized shortly later, even his closest neighbour, Abel s/o Maginga (PW2) .. .....,,. 2 was experiencing the same ordeal. From PW1 Joseph, 12 head of cattle were robbed. As for PW2 Abel, nothing was stolen, because using his shotgun, he managed to kill two bandits on the spot. None of these people identified the bandits. As the bandits hurriedly left the scene of the crime, PW3 Chacha Mwita Timasi, dared to get out of his 'boma' armed with a bow and arrow, as he claimed. He allegedly saw torch lights at the home of PW1 Joseph and PW2 Abel. When he heard gun shots he hid himself. From his hideout, he saw the rustlers pass with the stolen cattle. He fired an arrow at them and this was followed by a burst of gun fire. Together with other people they went to Nyamwaga village. There he informed one Marwa Machungu about the robbery at their village. The two went to hide themselves at a place they "suspected those bandits would pass." The bandits, he claimed, passed by as "suspected". They were nine in number. One of them who was tall, was carrying a gun. He could see them due to "bright moonlight". He shot an arrow at the tall bandit who fell down in anguish. The other bandits fled in fear. They then drove the 3 stolen cattle back. This piece of evidence though, is contradicted by PWl Joseph. The latter said that the cattle were recovered at the "mountain going to Mariba Village." The appellant was subsequently arrested and charged with· two counts of armed robbery and attempted armed robbery. The prosecution tendered no iota of evidence to show why, when and how he was arrested. In his evidence PW3 Chacha admitted that the appellant was a stranger to him. The appellant denied the charge. He said that on 23/12/2001 he was at his home nursing his pregnant wife who delivered a dead baby the following day. As a result he failed to enter appearance in the trial District Court before Mallya, SDM, in connection with Criminal Case No. 746 of 2000. His bail was cancelled. He was subsequently charged with five others in connection with the offences committed at Nyakunguru Village. He denied being shot at by an arrow at all. In convicting the appellant, the learned trial District Magistrate was conscious of the admitted fact that no single bandit was 4 identified at the scene of the crime. He, however, relied on what he rightly found to be the dock identification evidence of PW3 Chacha to convict the appellant. The appellant's appeal to the High Court was almost summarily dismissed. The learned first appellate judge upheld the conviction because, PW3 Chacha had identified him among the bandits through moonlight and because he was shot at with an arrow. The appellant was dissatisfied with the decision of the High Court and preferred this appeal. Arguing in favour of the appeal, Mr. Willbard Butambala, learned advocate, urged us to quash the appellant's conviction. He had five reasons. One, the learned first appellate judge failed to consider the conceded fact that the appellant and PW3 Chacha were strangers to each other. Two, PW3 Chacha never gave the description of the appellant to anybody before he saw him in court when he was testifying. Three, no identification parade was conducted at all, apart from the fact that no police officer testified to show why the appellant was arrested. Four, when the appellant was arrested, as indicated in his evidence, on 5 .... 24/12/2001, he was not found with any fresh wound, thereby contradicting PW3 Chacha's bare assertions. Five, the conditions prevailing at the scene of the crime were not favourable to an unmistaken watertight visual identification. He accordingly pressed us to allow the appeal in its entirety. The respondent Republic was represented before us by Mr. David Kakwaya, learned State Attorney. Mr. Kakwaya fully supported the appeal on the grounds articulated by Mr. Butambala. Having carefully gone through the evidence on record and the judgments of the two courts below, we are settled in our minds that this appeal has been lodged with sufficient grounds of complaint. We are, therefore, in full agreement with the sentiments of both Mr. Butambala and Mr. Kakwaya, that the purported visual identification evidence of PW3 Chacha is totally wanting in cogency, and implausible. Indeed, as correctly found by the trial magistrate, it is dock identification evidence which standing alone, as in this case, has no value at all in law. There was, therefore, no evidence at all upon which the conviction of the appellant for the two offences could be 6 safely grounded. He was improperly convicted, as a result, on the manifestly inadequate dock identification evidence of PW3 Chacha. All said, we allow this appeal in its entirety. The convictions of the appellant and the sentences imposed on him are accordingly quashed and set aside. The appellant is to be released forthwith from prison unless he is otherwise lawfully held. DATED at MWANZA this 2nd day of June, 2012. E.M.K. RUTAKANGWA JUSTICE OF APPEAL E.A. KILEO JUSTICE OF APPEAL K.K. ORIYO JUSTICE OF APPEAL I certi that this is a true copy of the original. 1/ (::i ' l~. +.{ E.Y. Mkwizu DEPUTY REGISTRAR ·~ ..,,"':" ___,