20130708 TZCA Dar es Salaam

.IN THE COURT OF APPEAL OF TANZANIA ATARUSHA (CORAM: KILEO, J.A., ORIYO,J.A. And KADAGE, J.A.) CRIMINAL APPEAL NO. 276 OF 2010 EMANUEL ELIKOMBORA@ KICHWA .......................................................APPELLANT VERS.US THE REPUBLIC ............................. ~ ...............................·................. RESPONDENT (Appeal From tt,e Judgment of the High Court of Tanzania At Arusha) (Mmill, l.) dated the 31st day of May, 2010 in Criminal Appeal No. 48 of 2009 ·················~················ JUDGMENT OF THE COURT 7th June & 27 th August, 2013 KILEO, l. A.: The appellant lost his appeal to the High Court sitting at Arusha against a · conviction entered for the charge of armed robbery that was tried in the District Court of Babati. Undaunted he has come to this Court on a second appeal. The appellant was arraigned in the District Court of Babati with one other person who was acquitted, on four counts of armed robbery contrary to -section 287 A. of the Penal Code. The robberies, as per charge sheet, were committed against Arafa Salim, Gaspa Shelukindo, Juma Salim and 1 ... , Grace Robinson Mariki at 03:23, 03:26, and 03:28 hrs respectively on 31.-05.2007. He was sentenced to the mandatory sentence of 30 years imprisonment. It would appear from the evidence on record that while PWl, PW2 and PW3 were each sleeping in their respective rooms on the material date and time they were invaded by gangsters, who in addition to the physical onslaught that they were subjected to, their properties including mobile time of the robbery though he said that upon returning home following the date of the incident he found his room broken. There was no mention, in his evidence of any thing that was stolen from his room even though in the charge sheet it was said that his phone, cash money and gold chain were stolen. There was no explanation throughout the trial as to why it was mentioned in the charge sheet that the appellant had robbed PW4 of his properties while in fact it was not so. The appellant's ·conviction was based solely on identification which the appellant in his petition of appeal contended that it was not water tight to ground a conviction. 2 The appellant appeared in person at the hearing of the appeal. The Respondent Republic was represented by Mr. Harun Matagane, learned State Attorney. Reiterating his grounds of appeal the appellant asserted that the conditions pertaining at the scene of crime were not conducive for watertight .identification. He pointed out that apart from the fact that the source of light and its intensity was not specified by PW2 and PW3 the which was not worthy of trust. He pointed out for example, that while PWl said that he was at Sokoni 1 at the time of the incident, yet the crime was committed at Unga Limited, a discrepancy which was not resolved. Mr. Matagane supported the conviction and sentence contending that the conditions for identification were favorable as there was electric light coupled with the fact that the appeliant was known to the witnesses prior to the incident. As observed earlier, the appellant's conviction was founded solely on identification. Admittedly, the crime was committed at night so it was vital for the courts below to be certain without shadow of doubt that the appellant Wc!S sufficiently identified as being one of those who robbed the 3 complainants. Evidence on conditions favoring correct identification is of utmost importance because, as it was stated in the celebrated case of Waziri Amani v. R. (1980) TLR 250, the evidence of visual identification is of the weakest kind and most unreliable. In that case the Court further stated: "..... .It follows therefore, that no court should act on evidence of visual identification unless all possibilities of mistaken identity are absolutely watertight. ... The extent to which the possibility of the danger of an affront to justice... occurring depends entirely on the manner and care to which the trial Judge approaches... although no hard and fast rules can be laid down. .. it must be shown on the· record a careful and considered analysis of all the surrounding circumstances of the crime being tried ... " Having carefully considered the circumstances of this case we must state outright that we are settled in our minds that there was no careful and considered analysis of all the surrounding circumstances of the crime that was tried as was required . .In the first place, PWl who was a key witness was at another area at the time the crime was committed. He was 4 in Sokoni 1, not Unga Ltd which is the place the crime was committed . . Secondly, at first he did not specify the intensity of the light in his room during examination in chief but on cross examination he claimed that a 100 watts bulb was burning! Our commonsense finds it inconceivable that under normal circumstances a person would leave a 100 watts bulb burning in his room while sleeping. It was rather perplexing that this witness is the one who was giving an_ account of what was taken from each like a cooked up one and if the lower courts had properly and carefully looked at the circumstances of the case they would have found the prosecution case seriously wantirlg. Another disturbing thing is the fact that the appellant was convicted on a count of robbery committed against a person who was not at the scene and one from whom nothing yvas stolen (PW4). We are sorry to say that this portrays the lack of seriousness with which the whole case was handled by the courts below. We need not linger any more on this case. Suffice it to say that we are of the settled mind that the appeal was filed with sufficient cause for complaint. We accordingly allow it. We quash the conviction entered and 5 Set aside the sentence imposed. The appellant is to be released from • custody forthwith unless held for some other lawful cause. · . -DATED at DAR ES SALAAM this 8th Day of July, 2013. E. A. KILEO JUSTICE OF APPEAL K. K. ORIYO JUSTICE OF APPEAL S. S. KAIJAGE I certify~ is a ,6