hussein barikia vs republic 2013 tzhc 2060 2 october 2013

I IN THE HIGH COURT OF TANZANIA AT TANGA CRIMINAL CASE APPEAL NO. 32 OF 2012 (Originating from Handeni District Court Criminal Case No. 28 o f2009) HUSSEIN BARIKIA..........................................................[APPELLANT 4 I > VERSUS THE REPUBLIC............................ ................................ RESPONDENT JUDGMENT U. MSUYA', J. The Appellant having been aggrieved by the decision of the District Court of Handeni at Handeni, preferred an appeal. He was convicted for the offence of Armed Robbery C/S 287 of the Penal Code Cap 16 R. E. 2002 as arhended by Act No. 04/2004. He was sentenced to 30 years imprisonment. He presented three grounds of appeal but the main isSue was on identificati^; That there was no cogent evidence tendered by the only identification1 ' witness PW 2 Matata Juma to prove how the appellant was identified. i On the other hand the learned State Attorney Mr. Iboru supported the appeal. He said the evidence tendered did not pass the test of the Drinciple laid in the case of WAZIRI AMANI V R (1980) T L R 250 on the ssue of identification. This is because the only eye witness PW 2 Matata luma could not explain in the evidence how he identified the accused verson apart from just saying that he identified his voice in cfbss - examination. He as well poirjffid out that the other prosecution evidence given was learsay evidence, whi£h cannot be'accepted by the court'. Mindful of the fact that it is the duty of the prosecution to prove their ase beyond reasonable doubt he submitted, the duty was not discharged nd the accused has to be given the benefit of doubt. The issue here now is whether thfe accused was property identified or ot. I have had an.Opportunity to thoroughly go’through the evidence jndered by the pro£g|ution. I totally agree with both the appellant and ie learned State Arafrney that following the principles laid down in the jse of WAZIRI AMANi (supra) the appellant was not property identified. This is to say the case was not proved by the prosecution beyond all asonable doubt. So it was not proper for the appellant to be convicted sed on such a weak evidence of visual identification. 2 ♦n The conviction ^against the appellant is thus quashed and the sentence imposed against him is set aside. The accused should be released immediately unless held for another lawful cause. . . - A f Jj/'MSUYA, — 2/ 10/2013 j ; ■%; / \' v \ » •■ ■'J' ■:v; , ':p. i \ \ ‘ M l. 3