20130724 TZCA Tanga

IN THE COURT OF APPEAL OF TANZANIA ATTANGA CRIMINAL APPEAL NO 80 OF 2013 ABUU ADAMU ..........................................APPELLANT VERSUS THE REPUBLIC ....................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania atTanga) {Teemba. J.l dated 3 rd day of July, 2012 in Criminal Appeal No. 7 of 2012 JUDGMENT OF THE COURT 23 rd & 26th July, 2013 MASSATI, J.A.: The appellant was charged with the offence of robbery with violence in the District Court of Handeni. It was alleged that on the 9th November, 2010 at Handeni, he robbed one Ramadhani s/o Bunganyia (PW1) of his bicycle by threatening him with actual violence in order to retain the said bicycle. The prosecution case was made up of the testimony of PW1, PW2, and PW3, and the sales receipt for the bicycle (Exh Pl). PW1 told the trial 1 Court that on 9th November, 2010 at 11.45 hrs, he was on his way from his farm when he met "one guy" who tried to stop him. He resisted, but the guy pulled him down from his bicycle. He fell into a ravern, and the guy left with the bicycle. To prove that he owned the stolen bicycle he tendered Exh PL PW1 then informed his relative about the robbery, but in cross examination and re examination, he claimed that he knew the appellant. PW2 told the trial Court that on that date, he saw the appellant riding speedily on a bicycle, knocking down his chicken. PW3 also told the Court that on that same day at 1.30 pm. he also saw the appellant riding a bicycle speedily. He said he got rumours that the appellant was suspected of robbing a bicycle. According to this witness, the appellant was arrested on 15/11/2010 with a goat and taken to the Police Station. The appellant told the Court that he was arrested either on 1/11/2010 or 13/11/2010 by militiamen at a bus stand, but denied committing the offence. Both Courts below believed that the prosecution case was proved beyond reasonable doubt. He was accordingly convicted and sentenced to 2 15 years imprisonment and ordered to pay a compensation of Shs 100,000/= Aggrieved by the decisions of the Courts below, the appellant has taken up an appeal to this Court. In this appeal the appellant was unrepresented and has presented a memorandum of appeal with about 8 grounds of appeal, which may be condensed into one main ground; that the prosecution case was not proved beyond reasonable doubt. He urged us to allow the appeal. The respondent/Republic was represented by Mr. Joseph Pande, · learned Senior State Attorney, who did not support the conviction and sentence. He submitted that, although PW1 claims to have known the appellant from before, he never mentioned him to any person, until at the hearing when he made a dock identification. Dock identification was very weak, the learned counsel submitted. He referred to us several decisions of this Court, where it was held that failure of a witness to name a suspect at the earliest opportunity reduces that witness's credibility. As for the testimonies of PW2 and PW3, Mr. Pande submitted that, theirs was no 3 · more than suspicion and not concrete evidence. He therefore prayed that the appeal be allowed. Much as this is a second appeal, where this Court is mainly concerned with points of law, we have noted that there are several serious misdirections and non-directions on the evidence so that we are forced to interfere with the concurrent findings of the lower Courts. (See SALUM MHANDO v R. (1993) TLR 170). The only crucial evidence for the prosecution is the testimony of PWL In his evidence in chief, PW1 did not indicate that he knew the person who robbed him of his bicycle. He just described him as "one guy". It is only in cross-examination that he claims to know the appellant, and in re-examination purported to identify him in the dock. This was dock identification at the trial. It has been held by this Court that dock identification of an accused person by a witness who is a stranger to the accused, or knows the accused only by appearance, not by name, has value only if preceded by an identification parade. (See MUSSA ELIAS AND 2 OTHERS V. R. (Criminal Appeal No. 172 of 1993 (Mz) OMARY 4 ISSA v R. Criminal Appeal No. 11 of 1989 (MWZ) (both unreported). Since, in the present case, there was no positive evidence that PW1 knew the appellant before and there was no identification parade, the attempt to identify him at the dock during trial was of little value. The credibility of PW1 was eroded further by his failure to name the suspect at the earliest opportunity. In his evidence in chief, he said that he first reported it to his relative. The alleged relative did not testify. As we said in MARWA MWITA & ANOTHER v. REPUBLIC, Criminal Appeal No. 6 of 1995 (MWZ) (unreported). "... the ability of a witness to name a suspect at the earliest opportunity is an all important assurance of his reliability in the same way as unexplained delay or complete failure to do so should put a prudent Court to inquiry'~ And again in JUMA SHABANI @ JUMA V. R. (Criminal Appeal No. 108 of 2004 (unreported) we said:- ''Delay in naming a suspect without a reasonable explanation by a witness or witnesses has never been taken lightly by the Courts. Such witnesses 5 have always had their credibility doubted to the extent of their evidence discounted" The facts in the present case are even more disturbing. PW1 did not only not name the suspect, but did not even attempt to describe him to the police, when the appellant was arrested on 15/11/2010 by PW3, with a goat. The police officer who rearrested him did not testify to tell the Court what the appellant was arrested for and if, for the theft of the bicycle, if PW1 had described him, and if so, when. If indeed the witnesses knew the appellant and PW1 was certain that he was the robber, the delay of about one week before his arrest, without any cogent explanation makes the prosecution case even more suspect. When all these glaring weaknesses of the prosecution case are considered, we cannot help to conclude that the conviction of the appellant is not safe. For the above reasons, we agree with the appellant and the respondent that, this appeal has merit. We therefore allow the appeal. We quash the conviction and set aside the sentence and order of 6 - '. " compensation. The appellant is to be released forthwith from prison, unless otherwise lawfully held. DATED at TANGA this 24th day of July, 2013. E. A. KILEO JUSTICE OF APPEAL S. A. MASSATI JUSTICE OF APPEAL W. S. MANDIA JUSTICE OF APPEAL 7