20120726 TZHC Dar es Salaam

.. IN THE HIGH COURT OF TANZANIA• (AT DAR ES SALAAM) CRIMINAL APPEAL NUMBER 111 of . 2011 . .. (Originating from the Bagamoyo District Court, Criminal Case No. 157/2011 · E.H. Malekela-PDM) · ' ' . MASHAKA s/o MOHAMED @KIJODALI ......... A~PELLANT·· vs REPU BUC....................................................·... RESPON DENT .... JUDGMENT; . Date of last Order: 10-07-2012 Date of Judgment: 26-07-2012 JUMA, J.: The appellant Mashaka Mohamed @ Kijodali together, . ~ with Priscus Basil Tall and Benson Chilongola were at the District Court of Bagamoyo jointly and together charged ~- •, .. - ~ith the offence of r9bbery confrary to sections 285_ an~ .. . .. . . , # ~ • • 286 of the Penal Code . Cap· 16. The · three were also ~ charged with the off~nce of causing_ grievous harm contrary to section 225 of the Penal Code. The particulars:· 1 of the offence of robbery facing the appellant and his two co-accused were that that at 20.30 p.m. on 22 June 2001 at Majengo area in Bagamoyo District; they stole TZS 4,667,000=. And immediately after stealing they used actual violence to Cosmas Honero, Mary Richard and Ladislaus Cosmas. Particulars of the offence of causing grievous harm were that they stabbed Cosmas Honero, Mary Richard and Ladislaus Cosmas using a bush knife. Records of the trial proceedings show that when the th defence case opened on 10 April 2003, the appellant st herein and the 1 accused Priscus Basil @ Tall had jumped their bail and absconded. The trial continued against the remaining accused Benson Chilongola. When on 11 February 2004 the trial District Court (E.H. Malekela-PDM) delivered his judgment, Benson Chilongola had also absconded after testifying in his own defence. Despite the absence of the three accused persons, the trial Principal District Magistrate still found all the three guilty and sentenced them to serve 30 years in prison. In addition, 2 • the trial magistrate not only issued arrest warrants against the three accused, but also ordered the accused persons to begin serving their sentence the moment they were to be arrested. To initiate this appeal, the appellant has lodged a ten- point memorandum of appeal from which I was able to discern four basic grounds of his grievance. The first ground-is thaf the -prosecuti•on ---did- not -prove -beyoAd- - - -- - - reasonable doubt the two offences of Armed Robbery c/s 285 and 286 of the Penal Code and Grievous Harm c/s 225 of the Penal Code. The second ground of grievance centres on the conditions at the scene of crime that fateful night, which appellant described as unfavourable for proper visual identification. In his third grievance the appellant regards as flawed, the criminal proceedings against him which were heard partly by one magistrate and partly by another. The fourth line of grievance is that the judgment of the trial court did not contain- the point or points for determination, the decision thereon and the 3 reasons for the decision as required by section 312 of the Criminal Procedure Act, Cap. 20. During the hearing of this appeal on 10th July 2012, the appellant was unrepresented whereas respondent Republic was represented by Mr. Hyera, the learned Senior State Attorney. At the hearing of his appeal appellant filed what he described to be his additional grou-nds; 6ut looked at -c1os-ely, -th-ese-gro-unds -were---i-n--- -- - essence trying to expound his existing ten-point grounds of appeal. The appellant expounded that not a single witness who testified during his trial, ever mentioned to have seen the appellant at the scene of crime that fateful night. Appellant similarly referred to the evidence of Sudi Ramadhani (PW4) on page 14 of the typed records of proceedings. Though PW4 testified that he knew the appellant, he did not testify that he saw the appellant at the scene of crime. Appellant also submitted that the identification parade evidence of ASP Shabani J. Semlangwa (PWS) who investigated the crime, did not link 4 him to the crime when he testified that appellant was not included in the identification parade. Appellant asked this court to allow his appeal because although the mainstay of the criminal case levelled against him was based on evidence of visual identification, not a single witness identified him at the scene of the crime. Mr. Hyera on behalf of the respondent Republic did not support the conviction of the appellant. While restricting his submissions on evidence of visual identification and evidence of identification parade; the learned Senior State Attorney observed that the crime subject of this appeal was committed at night and witnesses who testified did not place the appellant at the scene of the crime. Mr. Hyera further submitted that although the prosecution witnesses testified that there was light, they did not give further elaboration regarding the intensity of lighting and their proximity with the appellant to facilitate a positive identification. 5 • From the grounds of appeal and also the oral submissions of the appellant and Mr. Hyera, the case against the appellant was based on evidence of visual identification at night; the law is now settled that evidence of such visual identification should be such that it irresistibly identifies the offender at the scene of crime. The Court of Appeal of Tanzania has settled the law regarding the evidence of visual identification. In the case of Waziri Amani v. R (1980) TLR 250 the Court of Appeal restated that the evidence of visual identification is the weakest kind of evidence and the most unreliable, and courts should not act on such evidence unless all possibilities of possible mistaken identity are eliminated. In yet another case of Rashid Seba vs. Republic, Criminal Appeal No. 95 of 2005 (CA) at Mwanza the Court of Appeal expounded that before acting on evidence of visual identification, the trial court must also determine whether the quality of the lamp was conducive for proper identification. 6 In the circumstances of this appeal, I think the learned Senior State Attorney is with all due respect right not to support the conviction of the appellant. Not a single material witness identified the appellant at the scene of crime. Even the evidence of ASP Semlangwa (PWS) who investigated the crime did not link the appellant to the _ ~~im_e_. Records of the trial court proceedings on page 17 show that PWS testified th_a_t - the appella·nt· ·was- not- --- --- - - involved in the identification parade. I cannot but wonder why, after concluding that the material prosecution witnesses had at the scene of crime identified only Priscus s/o Basil @ Tall (1 st accused) and nd Benson Chilongola (2 accused); the trial magistrate still went ahead in his judgment to convict the appellant. In st nd my opinion after making a finding that only the 1 and 2 accused were guilty, the trial magistrate should not have rd had the presence of mind to also find the appellant (3 accused) guilty as well. There was no evidence of visual identification placing the appellant at the scene of crime. 7 r Appellant was as a result wrongfully convicted of the offences of robbery and that of causing grievous harm. For the foregoing reasons, the ground of appeal revolving on the lack of evidence of visual identification of the appellant is sufficient to dispose of this appeal; I will not deal with the remaining grounds. This appeal is hereby allowed and I order that the appellant be set at 1' 1--------- - liberty immediately. th DATED at DAR ES SALAAM this 26 _July, 2012 i I.H. Juma, JUDGE 8