20120418 TZHC Dodoma

• IN THE RESIDENT MAGISTRATE COURT OF DODOMA . .. .·, , AT DODO-MA-·:•.:; -- (APPELLATE JUR:CSDiCTION) , . . . PRM. CRIMINAL APPEAL NO. 40 OF 2011 (DC) CRIMINAL APPEAL NO. 87 Qf ·201i ORIGINAL CRIMINAL CASE. NO~ 170 o·F 2009 ... l. • OF THE DISTRICT COURT OF DODOMA DISTRICT AT DODOMA . DEO MASIMA & 4 OTHERS ......................•.... APPELLANT (Original Accused) Ve,rsus THE REPUBLIC ·············••p••··················RESPONDENT ( Original Prosecutor) 28/2/2012 & 18/4/2012 JUDGMENT On 10/3/2011 the District court of Dodoma at Dodoma convicted the · ~:appellants, namely: Deo Masima, Ezekiel Mzingwa, George Msonjela and _William Mgawa as well as Thomas Madeje, the charge laid before the .•.·, ' _,appellants was for Armed Robbery c/s 285 and 287 A of the Penal code Cap. 16 Vol. 1 of the laws as amended by Act No. 4 of 2004. The appellant were sentenced to serve a term of 30 years. Each one was not happy with the punishment, hence the instant appeal. ,. 1 l . • •. ,t. : . . :, . • . : The short story of what transpired is: that on 26 th March, ·2009 at_. about 20.00 hrs the home place_ of Danford Yohana was invaded ·by . .. . :a.·: . group of thugs. The family members including :selta: Mgqmba and Edward Moses were stabbed and injured~._-. The thugs .also·:stolep, various property. such as cash Tshs 3,000,000/= two mobile ph~nes,_w6rth)Q0,000/=. And they fired a bullet on the air to control the situation. The trial court had the opportunity to hear from ; PWl Danford Yohana ; PW2 Belita Danford, PWS: Sophia Mgoomba, PW.-3 · Matonya Elia, PW4 E. 170 D/Cpl. Adam, PW6, Edina Mgoomba. In convicting the appellants the trial court considered the issue of identification . It was said that there was enough moonlight torchlight and that the suspects were not I . strangers and between the two there was no elements of bad blood. The memorandum of appeal lodged by the appellants contained a number of nine grounds. They · were all engulfed in the issue of · identification. That they were convicted an poor identification. The Respondent was represented by Ms. Mbunda learned State Attorney. She was not ready to support the conviction. 2 . ·., Ms. Mbunda argued that there was no prop~r identific~tion. That the prosecution witnesses includin~ PWi° testified that he .id.entified. th~;Y. appellants by the influence of moonlight and torch- light.- ·That PWl. _frushe,d ......... . • a torch from his room and managed to see and\dentify the thugs~ .· · . . The State Attorney said that PWl, did not explain.the distance from where he was and where the thugs stood. • That the intensity of ljg~t was not explained. That the mere mentioning of names was not enough. :; . I made a clear survey on the proceedings and the judgment of the trial court. The facts suggests that the incident oc;:cur~ed at night. It means the conditions of identification were not favoured. It has been said in various authorities that evidence of visual identification is of the weakest character and most unreliable whi~h should be acted upon cautiously when the court is satisfied that the evidence is watertight and that all possibilities of mistaken identify or even fabrication are eliminated see: Waziri Amani V.R. (1980) T.L.R. 250 and Nhembo Ndalu V.R. Criminal Appeal No. 33 of 2005 (unreported). It was said in the case of' Kulwa Makwajape V.R. Criminal Appeal No. 35 of 2005 that the intensity and illumination of the lamp is important so that a clear picture is given of the condition in which the appellants were identified. 3 • • (' In the instant case the prosecution Wiblesses d_id, riot give--'explanatiori on the intensity of the sources of light. I~ wa_s ,'said that there wa~ enoug,h ., . . -~ ·. . .. ... _ moon light. - The light shed· by a·-- mo'on can : influence identificabori depending on the size of the moon, the ~eath_e( ~ondition and other factors like objects which can be . in-between. -~h~:'~bon- light whe~ it is . . . . .. clear enough can also influence the identification when the ·on_e observing and that who is under observation- are closer. It was not made clear in this case to know the nature of the moon I 1 and the distance was not put open. I can agree with Ms_. Mbunda that the factors to be covered in clear identification were not exhausted. The state attorney gave another reason for her doubt. She said that suspects who were said to have been mentioned immediately were not arrested after a short time. It took them too long to effect the arrest. She cited the case of Magnisha Mzee & another V.R. Criminal appeal Nos. 465 and 467 of 2007. TCA (unreported). The facts,-cread that the incident occurred on 26/3/2009. PWl testified that on the same date the police officers were at his home. That was after the incident. It was said that the appellants were apprehended I . on different dates, such as from 10/4/2009 to 27/4/-2009 and 28/4/2009 . ( The appellants belongs to the same Village with the complainant and some 4 hail from the neighbor village of Nala. If the thug? w~re -rne~tioned on th~ fateful date, the question is, why the arrest Jook -. too long? . It. was not said, . . . ·- that the suspects were hiding themselves· a:nd del~y the process of apprehension. The fact that the appellaf)ts were not arrested after a :short .. ·. . ... time -_ · raises doubts. From the above reasons I proceed to quash the conviction and· set aside the sentence imposed. Each appellant be released forthwith unless held on another cause. Appeal allowed. ·;~ R.I. RUTATIN~~~A .- PRM. EXT. JURISDICTION 18//4/2012 , R,-c,pc:-t,lT M,AG . . , · !cTRATE _ ,,1r-lQ[\I ,'1':,.,':'I _,,.- . . , -,-•r)tl..i \ p R :rv,. . . , ... ,_ .. ,,,r·\·i-.::{lif:\,'1i1\..t~..l -r"-)J'·,(::p .jlJt•;L, _., ~ A t EX 11-, :.,- - . . .E couRT eonoM -~1e:1RA 1 RE s1or.:.N r tv1 l:, __, .... .. A. Delivered in the presence of Appellants and Ms. Magessa. State Attorney for the Respondent. 5 . "•.,, ..... Right of appeal explained. PRM. EXT .. JURISDICTION- 6