20141003 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) - AT DAR ES SALAAM CRIMINAL APPEAL NO. 47 OF 2014 (Originating from Cr. Case No. 192/2012 at Kilosa District Court) S·IDE KAMEi ... .................. ~..................................... APPELLANT VERSUS THE REPUBLIC .......................................... ~ ..... RESPONDENT Date of last Order: 24.9.2014 Date of last Judgment: 3.10.2014 JUDGMENT Kihio, T: The appellant, Side Kamei, was charged with and convicted of Armed robbery contrary to section 1287 A of the Penal Code, Cap 16 as amended by Act No.4/2004 in the District Court of Kilosa. He was sentenced to thirty (30) years imprisonment. Aggrieved by the conviction and sentence~ he came to this court in this appeal. The facts of the case as established in the evidence adduced in the District Court are that on 26.5.2012 at 4.00 p.m at Ngaiti area Shida Deusi (PW6) was grazing goats belonging to Mahenda S/ o Lubinza (PW4) and 1 three Masai people appeared at the grazing field, beat him (PW6) and stole some of the goat he (PW6) was grazing. He (PW6) collected the remaining goats and went home. He (PW6) identified the appellant at the scene of crime as one of the bandits because he was tall and dark in colour. He (PW6) reported at the police station that he identified one of the robbers by face but he was not present when the appellant was arrested. It was in the evidence of PW6, in cross-examination by the appellant that he (appellant) was arrested when he was selling meat and he had goats skin. It was in the evidence of Ngalawa Milwad (PWl that on 27.5.2012 at 22.30 hours the appellant and one Richard came at his (PWl's) brother's house to hire a motor vehicle for purposes of carrying forty (40) goats from Mwembe Kona area to Merela. It was also in his evidence that the agreed price between his brother on one side and the appellant and Richard on the other side was TShs.100,000/= and as the appellant and the said Richard were having only Tshs.70,000/= by then he left one goat at his house as guarantee and took thirty nine goats to Merela. The evidence of PWl further showed that when they reached Kimamba he gave the appellant Tshs.10,000/= and the appellant left his (appellant's) phone which had the name Side" at it's back part. The evidence of PWl finally showed that on 0 29.5.2012 Policemen informed him that the goats he (PWl) carried on 27.5.2012 were stolen goats and three days from 29.5.2012 when the appellant came at his (PWl's) house to collect his phone the policemen arrested him (appellant). 2 It was in the evidence of No. D.6823 Sergeant Damas (PW3) that on 28.5.2012 he was instructed to conduct investigation on the present case and one Maenda told him that he (Maenda) was invaded by three Masai people who had sime, club and sticks and he (Maenda) identified Side Kamei as one of the robbers because he (Maenda) knew him before. It was also in his evidence that on 1.6.2012 they arrested the appellant when he came to collect his (appellant's) phone (Exhibit Pl) at Ngalawa Milwad's house. The evidence of Mahenda s / o Lubinza (PW4) in the trial court was to the effect that on 26.5.2012 he received information from Shida s/ o Deusi (PW 6) that his (PW4's) goats had been stolen when they were grazed at the ranch and he reported the mater at Kilosa and Kimamba Police posts. According to his evidence, in cross-examination by the appellant, Shida Deusi (PW6) did not mention the name of the robbers. The evidence of Lembangwa Mtuge (PW5) in the trial court was to the effect that the OCS met him at Kibamba and told him that he was needed at the Police Station for purposes of identification parade. It was also in the evidence of PW5 that the complainant identified the appellant twice at the Identification parade. The appellant denied any involvement in the commission of Armed robbery. It was in his defence evidence in the trial court that on 1.6.2012 he went to Kibamba to buy clothes and shoes and when he entered into a 3 grocery he was called by the Policeman, Damas and another person. It was also in his evidence that after he informed the said Damas that he did not know the person who stole the goats he was put in police lock up and thereafter taken to court. The trial court found that the prosecution side managed to prove beyond reasonable doubt the appellant's guilt. The appellant filed a petition of appeal containing four grounds of appeal. However, in essence his grounds of appeal are basically two, namely, 1. That the trial magistrate erred, in relying on the identification evidence of PW6 and PW3 which were contradictory 2. That the trial court erred in it's finding that his guilt was proved beyond reasonable doubt. The appellant appeared in person while the respondent, Republic is represented by Miss Magambo, learned State Attorney. In support of his grounds of appeal, the appellant submitted that the identification evidence was not water tight. He further submitted that PW6 did not mention the person who stole the goats at the scene of crime to PW4. He contended that PW3 said in trial court that PW6 told him that the goats were stolen by a person he (PW6) knew by name of Side Kamei. He further contended that the evidence of PW3, PW4 and PW6 was contradictory. 4 Miss Magambo does not support the conviction and sentence. She submitted that the evidence adduced in the trial court was doubtful and so the guilt of the appellant was not proved beyond reasonable doubt. She further submitted that the evidence of the investigator (PW3) was to the effect that the appellant was arrested at the house of PWl where he went to collect his (appellant's) phone where as PW6 told the trial court that the appellant was arrested when he was selling meat and when he (appellant) was in possession of skin. She contended that PWS told the trial court that he was at the identification parade where the complainant (PW4) identified the appellant. She further contended that PW6 was the one who was at the scene of crime but was not called to identify the appellant and the identification register was not produced in court as an exhibit. She argued that PW6 told the trial court that he was beaten by the robbers but he did not testify if there was any weapon used by the robbers at the scene of crime. She further argued that PW4 did not tell the trial court the total number of his goats and the number of goats stolen. She was of the view that the guilt of the appellant was not proved beyond reasonable doubt and so he (appellant) was not correctly convicted. The first issue for determination in this appeal is whether the appellant was sufficiently identified at the scene of crime or otherwise. In the case of Bushiri Amiri v. Republic (1992,) T.L.R. 65 the court enunciated the principle of law that: 5 0 In every case in which there is a question as to the identity of the accused the fact of there having a description given and the terms of that description given are matters of the highest importance of which evidence ought always to be given; first of all, of course, by the person or persons who gave the description and purport to identify the accused, and then by the person or persons to whom the description • II wasgwen . In the present case, the evidence of Shida Deusi (PW6), the identifying witness, was to the effect that at the scene of crime he identified the appellant amongst the three robbers who stole PW4's goats because the appellant was tall and dark in colour. It was also in PW6's evidence that he reported at the police station that he identified the appellant by his face. It is quite plain, on the Prosecution evidence that the person to whom the description of the identified robber was given was not mentioned by PW6. According to the evidence of sergeant Damas (PW3), one Maenda told him (PW3) that he (Maenda) identified Side Kamei (appellant) at the scene of crime as one of the robbers who stole PW4's goats because he (Maenda) knew the appellant before. There is no evidence adduced in the trial court that the said Maenda was at the scene of crime at the time of the commission of the alleged Armed robbery. Neither was there any evidence to establish that the said Maenda and Shida Deusi (PW6 was the same person. It is in the prosecution evidence that the complainant who was not at the scene of crime at the time of the commission of the Armed robbery was the one who was called at the identification parade to identify the appellant. 6 In view of the evidence adduced in the trial court, I have no doubt in my mind that the prosecution side's identification evidence was doubtful. The second issue for consideration is whether the guilt of the appellant was proved beyond reasonable doubu.,,; The evidence of PW6 did not established that there was any weapon in the possession of the robbers or used by the robbers at the scene of crime whereas the charge sheet in the trial court alleged that the appellant used a bush knife, club and sticks to threat Shida Deus (PW6) at the time of stealing the goats belonging to Mahenda s/ o Lubinza (PW4). Indeed, the prosecution case was full of doubts. Miss Magambo correctly submitted that the guilt of the appellant was not proved beyond reasonable doubt and so he was not correctly convicted. From the foregoing reasons, I allow the appeal, quashed the conviction and set aside the sentence. The appellant be released from the prison immediately unless so held thereon other lawful·cause. ~ S.S.S. Klhio JUDGE 3/10/2014 7 '. Court: Judgment delivered in the present of the appellant and Mr. Morris Mwamwenda, learned Senior State Attorney. ~ S.S.S. Kihio JUDGE 3/10/2014 8