20140413 TZHC Dar es Salaam

,._~b ,.' :·• ✓ _:-:1 ·,_ . ~ IN THE HIGH COURT OF TANZANIA DAR ES SALAAM REGISTRY CRIMINAL APPEAL NO. 106 OF 2014 (Original Criminal Case No. 297 of 2010, District Court of Kilosa) VERSUS W .B .. Korosso .J. from his behind had weapons clubs, baton and bush knives. Peter attempted to run away but he was hit by a club and fell down. The said people, divided the goats into two groups and left with one group leaving the second group. Peter managed to stand up after they left and took the remaining goats back to the ranch. On arrivatat the ranch he informed on Charles the guard of the robbery. 1 ,..,. fl The next day he went to the police station reported the matter and was given a PF3 form and went to the hospital. The appellant was one of the persons arrested after his name was mentioned by Peter and the second accused (at the trial and who was acquitted of the offence charged), after the goats were traced and found at the second accused premises and she had stated that they had been brought there by the appellant. .,, The appellant has preferred several grounds of ap eal whffiltwe adopted on the day of hearing of this appeal. First, the appella'<"i:'i& ··:·'.~lleng~~'1a~t, ·~'t,.. e evi~ence ..,&::., " .,,., of -~ ·vi_* -~">:•·::,.., visual identification, arguing that despite i~~ fact t\9-t i . ~id·i:::t. robbery ,, >;~ii~- ,tl~;~ occurred at noon, PWl evidence h,"1.-0.:-. incort§l~:t,enci~s· ,: . '•:;;::~ ~. ~d dTu· not clearly illu_strate factors which led him to ijentC i~~:ij ;..~ "\ t; ~~pnd, the trial courts ,~~1%. •-·~,» <~;/ reliance on the exculpatory ey·i~nce~~~D " ': ::;.bssession of the goats, ~,.,.;,".,.❖ ' DW2 being a co· accused ar1;~5;:m the absen: -:~ofari:J\-<;;Rrroborative evidence; third, :::::::: .•::,,> . ~ '::::.<:: .::,:.a::;:;:.~ ·. ;,, • the absence of the evi' encet~f . ,:~:;& the,#ffe:s!ting ~~y· "':$~::., ker; fourth, that the prosecution "-".:t> ·-.. ::X:•~ ·.:;:;:;~ failed to prove its case~:~-"-_th~~:tandard il~uired and fifth, failure of the trial . •'~>~>. ❖~- ~~--~-- ..~...-. ❖"'-~~>. . -~~~ ,,·¢'~'» . ...~,❖7:--~!;;;• magistrate to 1'0i~. to ~t:he a ••·. }1$aln.ts favour the inconsistencies in the ~ i~, '-, evidence meted ;t. h -~r-osecutr -i:'J:,::;.....,;;,•_:;:· l,,witnesses. '<._-.;:::;,· • •v ., ~~~• '"~:*m>~. ·<if" • -.-..,.• ~ i',.X~"9~• ~ . . ~~:x>> ~>. .,. The Gi,~ ence eili}:€}~nc the ·>·frial court was to the effect that he had no ·~~- ? <'t}. "'-V,!§}~ ~❖~} ~·~~ ~-:;-. ❖s,.~, knowl~:l\ge of the'!:::...-.. bery1'i'or of stealing any goats, he was also surprised on .. ~~ ;:;_; {:':❖,:;_ being arre"s,t~P~ and ~-::~5uged with the offence of armed robbery, feeling he was . .,. ..-;:?fffi ·,c>p->.,.-~~ framed. That h' ",y -as arrested at Parakuyo and had no idea of where Mkata ranch is. Denied giving any goats to DW2, who he acknowledged was his mother, since she had been married to his father. At the appeal hearing, the appellant was not represented and appeared in person, contending the prosecution had failed to prove their case especially having failed to tender the said stolen goats in court 2 or a receipt relating to them. He also contended that the PF3 was irregularly admitted. The pivotal question is, whether the evidence on record is sufficient to uphold the appellants conviction? Having gone through the evidence this court finds it prudent to concentrated on two main grounds of appeal. That is sufficiency of evidence related to the visual identification of the appeU .:, at the scene of crime, and the issue of the weight to be put by courts evidence/ accomplice evidence. essential to be expounded by a witness propounding to have identified a culprit is the distance from where the accused persons are to the witness at the time an incident occurs. 3 On this issue, it is important to recapture the evidence of PWl, who had stated, while resting, three people had become from behind, and he tried to run, but . later was hit by a club. There was no mention of where the appellant was at the time, and if he was the one to hit him with the club for instance. On this issue of visual identification, the learned trial magistrate, stated the offence was committed around noon, which has full light, and stateq that despite this there '~'.:.;., was no evidence by the prosecution narrating on the dist~\~*iBut, he found that, '❖~«- . . 'SX.. '~~ because PWl had stated that, he was beaten by a c:li6f:, •·:-..therefore~,~ . ~~~ republic on this, that this element of distance was not satisfied. The other element, which the respondent republic submitted was important when evaluating the evidence pertaining to visual identification was the issue of the time, the period that the whole incidence was occasioned. That, PWl did not expose on the time it took for the incidence/ attack. It was their contention that 4 expounding on the time, is important for the identifying witness, in assisting the court and convincing the court, that the identification cannot be possibly mistaken. That the issue of time and distance have been hailed to be crucial in visual identification deliberation by various cases, including Waziri Amani Vs. Republic (1980) 250. nd had named Leboi Orio as among the farm manager, who was this deputy farm manager who was informed by PWl on the involvement of the appellant? this is not clear and despite the evidence of PW4, we cannot assume. The court also takes cognizance of the fact that PWl was hit by a club, so his powers of thinking and remembering might have beert affected. His narration of the incidence is not very detailed, one would 5 /, have expected him to even state what Leboi was wearing, what weapon he had if any or didn 1t have. And where there is doubt in the evidence of prosecution, it should benefit the accused. In the case of Raymond Francis v R [1994] TLR 100 at 103 it was stated as follows:- 11 ••• It is elementary that in a criminal case where determination depends essentially on identification, evidence on conditions favouri~~dentification is of the ~~'}. utmost importance. II Taking into account the settled_ osition'~late law, this court ·with certainty finds that the evidence of identificatI ···»~.·;~~given'tJWJ'Vl £sl'!JllOt be '❖*• ... ~ '%~· ,:,':.::;:w· said to have met the legal requirements by aij!¥:~stand\1· ~~-,_th~t\%;e of the ~X· ~ ·x:%:~ considered view that the identification 3/iden~\\~-;.of tRt eak~;V~aracter and ~:- ~~~ did not J·ustify the conclusion reache,d b·{.,, x::;:.: · tlfut.e was a need to seek ""-~"~ '❖;,~1:,~:.» J ~*~" ·:.:~·- . ::.?.::: ~~ "',~«•,,_ ..:.,"","",$:-.- for other independence evide:q~~,-:to co:i:;\~~:mra'.\t::it. . @>~;:;, "\~ •,;.::,,:~ i1L ~.;: ···-~. '•i»'>. ~:-,. ~-:::-. The second issue, which th·:::."$::-- ourt ha ,-decif:lij~ to £:E)ftiress, and in effect, in trying :• ·¾1\ to seek evidence to suiJBort "'\ ;_;;;{~~ · · at yj. in ,::ac~:;:;t~addressing "'»'!'~;,,,.. the weight to be put "®;; . :X:':::: in the evidence o£i~W2. Me.. om\m-ial maf:1.~trate relied on the evidence of DW2 ~::C:"::s; ·•:·ti"t: . •'.'-•,~;~ ~::;.&.:. :::_s::~-::.:»•';'f::;":--.. ,jf;\s . '•.•:C'¼~ .. r ·.· in making a fii?1Jling ~:···•. ilHt\~p the ·part of the appellant. The· trial magistrate ""~ "~- ~;.",,:,•~-- --=::it. ~\::"; . r~je,~:g states .,,·n · ·;,J, .also G: ·'.ult·X:: :,,_did'1!i.:0t send the goats to DW2 Rehema Mbapa, but the 11 .. evide~f of DW :~sg.,;,"t~;~l:ay iv en she was arrested, she insisted that the goats were •¢:;t. -.:::,)~, *~~ broughtl@rt Leboi s/o·•t~{Jo wnriis the first accused. This evidence of DW2 is corroborated -~~~- 1:;~~ with the etJ:1~~:J:1._ce of P~1 -:@~ <:~-:;:,;;::;;.,. . who testified that he saw the first accused on the commission of -~<~~~~~~~~;;=;<~,;~- the offence 11 • '•":,:§,~::~ The Hon trial magistrate continued by correctly referring to section 142 of the Tanzania Evidence Act, Cap 16 RE 2002, which provides that an accomplice shall be a competent witness against an accused person and conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. 6 It is trite law that the evidence of an accomplice should be considered with caution by the court. In the case of Paschal Kitigwa vs. R (1994) TLR 65, where the court of appeal stated that, the evidence of a co accused can be considered, and the court can convict an accused without corroboration subject to the court being satisfied that the said evidence is true and provided it warns itself on the dangers of convicting such evidence without corroboratipn. As amply stated by ❖' identification and accomplice evidence and made a correct analysis of the evidence before him, he would have arrived a different conclusion. Indeed, when considers the totality of evidence it seems the prosecution evidence was based mere suspicion. The prosecution has a duty to prove the charge 7 '• against the accused beyond all reasonable doubt. See the case of Christian s/o Kaale and Rwekiza s/o Bernard Vs R [1992] TLR 302 where the Court held that an accused ought to be convicted on the strength of the prosecution case. A suspicion cannot sustain a conviction. It entitles an accused person to an acquittal, on a benefit of doubt. This court feels having found that the available evidence\~{1- identification of the ~S:-~:;;, appellant at the scene was not sufficient to sust~in the Rtit~:conviction, ~ . ·. in the s' absence of any other independent evidence to srl\: venture into the other grounds of appeal. is set aside. The appellant i ·· ess otherwise lawfully held. Ordered. 13th Apri~, 2014 Winfrida B. Korosso Judge 13th April, 2014 8