20140829 TZHC Tabora

. IN THE HIGH COURT OF TANZANIA AT TABORA ,, APPELLATE JURISDICTION (Tabora Registry) (DC) CRIMINAL APPEAL NO. 194 cf 195 OF 2013 . CRIMINAL CASE NO. 50 OF 2011 OF THE DISTRICT COURT OF BUKOMBE BEFORE:- HON. S. SWALLO Esq. RESIDENT MAGISTRATE ' SEND EMA S/O CHARLES ...............................................APPELLANT (Original Accused) VERSUS THE REPUBLIC ........................................... :...·........... RESPONDENT (Original Prosecutor) JUDGMENT· · 14th & 29 th August, 2014 S. M. RUMANYIKA, J . Charged with offence of ~rmed robbery C/s 287(A) of the Penal Code Cap 16 · RE 2002, the Appellants and two others were on 1 ·•. • 1/12/2011, convicted and sentenced ·by the District Court Bukombe to thirty (30) years term in custody. Not happy here they are. Infact it is appeal numbers 194 of 2013 and 195 of 2013 consolidated. The appeals center to only two main points. The six (6) ground memoranda of appeals may so boil down like as under:- (1) The learned trial Resident Magistrate erred in law and fact. Not holding ~hat the App'ellants were not properly identified at the scene. I (2) The Learned trial Resident erred in law and fact whereby convicting the Appellants on uncorroborated repudiated cautioned statements. ' During the hearing, the Appellants did not have any_ useful submissions. They appear in pe_rson .. Mr. Miraji Kajir:u Learned State Attorney represents the Responq_ent. In fact he supports the entire appeal. As the Appellants . were not properly identified. Contrary to the law (Case of Waziri . Aniani V. R (1980) TLR 250). Which requires that unless all the possibilities of mistaken identity were eliminated and evidence is water tight, which indeed wasn't the case here, the Appellants were •· entitled to acquittal. No light intensity, Appellants' attire and distance '. between the Public witnesses and culprits were disclosed in evidence. Leave alone duration of the identification. The Prosecution case was 2 . proved not beyond reasonable doubts. Submitted the learned State • Attorney. It is evident, in a nutshell that as Pwl and Pw2 were in bed about 02.00 am, some thugs broke into, assaulted Pwl with Panga(s). While demanding some, they managed to take shs. 450,000/=. Then took him out and laid him down in the yard. He managed to identify t them properly. As it was all over shinning. Because the solar energy light was on. Though improperly and it appears late, the Appellants pleaded defence of alibi. Then repudiated the cautioned statements. Nevertheless, the trial magistrate just admitted them (exhibit P2). This one was too absurd. I will come back to it hereinafter. The issue is whether the Appellants were properly identified at the scene at the material 02.00Am. It is trite law that evidence of visual identification at night is the weakest kind ever. Unless it is water tight, in that all the chances of mistaken identity eliminated, courts .can not convict. There might be light in the room and outside . probably in the yard for Pw2 to visualize though terrified, anything around yes! But. the issue is whether he was capable of doing it free ,, of any mistakes. It is trite law as argued by Mr. Miraji State Attorney that without witness state it categorically how brighter was the room/place, how far or near was the culprit, how long did it take him to identify the culprit (categories never closed), the visual 3 · identification remains shaky upon which case could not have been ·proved beyond rational controversies . .. But of more importance is the Appellant's cautioned statements repudiated. But the learned trial Resident. Magistrate ~dmitt;irg them in evidence casually and without ~aking any inquiries. As said, this was, with greatest respect not corr~ct. It is trite law that- whenever . the voluntariness of an accused is queried on a statement made by ' him interviewed by the police this court, or any court subordinate hereto, has no option other. than to. conduct a trial within the trial or inquiries. As the case may be. After all there was nothing ' ' corroborative. At times, the learned trial Magistrate found it no longer safer to bank on the statements wholesale~ The records speak it loudly:- It is trite law that the confession admission on .restracted must be corroborated to support conviction. Although the accused retracted ~ the confession this evidence of identification corraborate the admission ........... (the underline is mine). But as said, with the identification· declared not proper and reliable, there can be nothing to corroborate the statements and· if 4 anything, the statements ( exhibit "P2'') ought to have been be, and · are, for the aforesaid reasons ·expunged from the records. I wiU, though slightly with. different reasons from Mr. Kajiru State . '. Attorney's allow the appeal as .hereby do. Decision and sentence by the trial court quashed and set aside respectively. Unless held otherwise lawfully, the Appellant be released forthwith. \ ' R/A explained. S.M. RUMANYIKA . JUDGE 28/08/2014 ,, Delivered under . my hand and seal of the court in chambers. This ' 29/08/2014. In the presence of the Appellants only. S.M.RUMANYIKA JUDGE 29/08/2014 5