20151113 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA -. DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM (APPELLATE JURISDICTION) C CRIMINAL APPEAL NO. 6S OF 2015 (From Bagamoyo District Court Criminal Case No. 49. of 2013-Hon. F.E. Haule, RM.) KULWA s/o DIDAS@ MANGE ...................... . APPELLANT VERSUS THE REPUBLIC ''· ••••••••••••••••••••••••••• RESPONDENT Date of Last Order: 29th September, 2015 Date of Judgment: 13th November, 2015 JUDGMENT FELESHI, J.: In the District Court of Bagamoyo at Bagamoyo the appellant and one JAFETY EDWARD WILLIAM @ MASANJA were charged with Armed Robbery contrary to section 287A of the Penal Code, [CAP. 16 R.E, 2002] as 1st and 2nd accused respectively. It was alleged that, on 15/02/2013 at about 02:00hrs in Matimbwa village within Bagamoyo· District in Coast Region, the accused persons stole . I a mobile phone make Blackberry valued at Tshs. 560,000/=, cash money amounting to Tshs. 10,000/= making a total value of Tshs. 570,000/=, the properties of MADI s/o JUMA _and that immediately before and after the said stealing, the culprits threatened and injured one MADI s/o JUMA with a machete in order to obtain.the said properties. Page 1 of 6 The accused persons pleaded not guilty. They were tried. Whereas the 2nd accused was acquitted for the prosecution failing to establish a prima facie case against him, the appellant (1 st accused) was found guilty as charged and sentenced to serve thirty (30) years imprisonment. Aggrieved, the appellant preferred this appeal on six (6) grounds namely:- 1. That, the trial Magistrate erred both in law and in fact by sustaining conviction against the appellant relying on visual identification or recognition of the appellant at the scene of crime where the condition under scrutiny were not clear for a proper identification. 2. That, the trial Magistrate erred both in law and in fact by hurrying to believe on PW1's testimony that he recognized the appellant committing the offence at his premises while PW1 failed to describe or mentioned his assailant at the earliest time possible to the first person/neighbours thus unreliable. 3. That, the trial Magistrate erred both in law and in fact by failing to consider that there were neither occurrence of the offence nor PW2, PW3 or PWS testified to have been given a first report of crime with the descriptions or name of the appellant to have committed the crime particularly PW2 who gave PW1 a piece of Kitenge in the premises the appellant resided prior to commission of the offence. 4. That, the trial Magistrate erred both in law and in fact by not seriously evaluating the evidence on record where the appellant was arrested without being informed of the offence leading to his arrest and no arresting Officer testified or gave account on reasons linking the appellant with the crime though the appellant was held in remand from 16/02/2013 to 21/03/2013 contrary to law. 5. That, the trial Magistrate erred both in law and in fact in purposely ignoring to determine the fatal variance of the facts leading to the roots of the case which were prejudicial to the appellant to the extent that the evidence adduced in Court by the prosecution witness (PW1) differed with the facts on the charge sheet regarding the property robbed or stolen on the material night. 6. That, trial Magistrate erred both in law and in fact by failure to consider and give weight to the appellant defence which is reasonable rather that the prosecution's weak evidence which failed to prove the case beyond reasonable doubts taking into consideration the grudges between the appellant and PW1 who contradicted on evidence in Exhibit "P1" (PF3) on the injuries resulted from the attacks. Page 2 of 6 The hearing of the appeal was conducted orally. Whereas the appellant appeared in person, the Respondent, the Republic was represented by Ms Fungameza, the learned State Attorney. Addressing the appeal, the appellant prayed for the grounds to form integral part of his submission and have his appeal allowed. Supporting the appeal, the learned State Attorney argued the 1st, 2nd , 3rd and 4th grounds of appeal altogether, that, according to the decision of the Court of Appeal of Tanzania in the case of Waziri Amani v. The Rep. [1980] T.L.R 250 at page 252, a Court of law should not rely on visual identification unless all possibilities of unmistaken identity are eliminated and the Court is fully satisfied that the evidence is watertight. Besides, Ms Fungameza argued, before relying on visual identification, the Court should consider: one, the time the witness had the accused under observation; two, the distance between the identifying witness and the accused; three, the conditions under which the observation occurred; and four, whether the witness knew the witness before. In the matter under scrutiny, PWl (the victim) said that the incident occurred at night and that there was light of a Chinese lamp and that the accused had a torch. Besides, the victim identified the assailant's voice whom he knew before. Notwithstanding, the victim did not mention the victim to the neighbours which is unexpected for the victim who knew the appellant before, him being his worker, not to mention his name to his neighbours. Page 3 of 6 .. The learned State Attorney cited Bushiru Amir v. The Rep. [1992] T.L.R 652 where the Court of Appeal of Tanzania underscored that, a victim ought to have given the assailant's detailed descriptions to the persons to whom he first reported the incidents short of which creates doubts. Regarding voice identification, Ms. Fungameza cited the case of Nuhu Selemani v. Republic [1994] T.L.R 93 where the Court of Appeal of Tanzania underscored that, voice identification is not reliable for some persons can easily imitate other persons' voices. She argued that, if truly the victim identified the appellant, he would not have led arrest of other innocent people who were released in Court. Regarding the 4th ground of appeal, Ms. Fungameza submitted that, the charge against the appellant was not proved beyond any reasonable doubts. She maintained that the appeal has merit in law. Having considered the respective submissions by the appellant in person and the learned State Attorney in support of the appeal, the following are the deliberations of this Court in disposal. As correctly submitted by the appellant and the learned State Attorney, the incident occurred at midi night around 02:00am and that in the room of PWl there was light of a Chinese lamp. It was also the testimony by PWl that, upon hearing a bang blow of a heavy object at the door of his house, he took a hide in a cupboard but managing to see the appellant. In compliment to what has been submitted by the appellant in person and the learned State Attorney, PWl did not ascertain as to the light intensity of the Chinese lamp that enabled him to unmistakably identify his Page 4 of 6 ... .. assailants. Availing evidence on light intensity, distance between the identifying witness and the culprits and that between the source of light and the assailants to mention a few within the precepts enunciated in the case of Waziri Amani (supra) has been overstated. In the matter under scrutiny, nothing was availed on record to establish these basic tenets for the purposes of earning conviction. The testimony by PW4 Rajabu Selemani (an eye witness) is of no assistance for the child was clear that when the assailants invaded his room, there was no light at all. Besides, PWl (the victim) testified that, the assailants had torches which would suggest that, PWl was able to identify the assailants through torch light. But a common understanding is that, when a torch is lighten, it has the effect of throwing light towards the opposite party and not against the one holding it for one does not direct torch light against himself when holding it unless the contrary is so stated which is not the case here. In the case of Bariki Kinyaiya & 2 Others v. The Rep., Criminal Appeal No. 220 of 2007, the Court of Appeal of Tanzania observed that:- " ...... Ordinary human experience is that a person uses a torch, otherwise known as flashlight in American English to enable them to see an object or a person in front of the user but without the user being clearly seen by the person shone at because of the blinding effect of such light on that other person. It may be possible, however, for a person in front of the user of the torch who is not directly shone at to see and identify the person using the torch if the light from the torch is reflected by a shiny wall or object. Otherwise. usually. it is not easy to identify reliably the user of the torch who directs the light from the torch to objects in front of or around them. .... [Emphasis supplied] Additionally, it was the testimony by PWl that, he identified the appellant as his assailant on the material date. But as correctly submitted Page 5 of 6 ,,r ... by the appellant in person and Ms. Fungameza learned State Attorney, this fact was not disclosed to the neighbours in the earliest time opportunity thus watering down the credibility of this witness to worth reliance. In the case of Marwa Wangiti Mwita & Another v. The Rep., Criminal Appeal- No. 6/1995 (unreported) the Court of Appeal of Tanzania held that: "The ability of a witness to name a suspect's name at the earliest opportunity is an all important assurance of his reliability'~ In a nutshell, the prosecution failed to establish their case beyond reasonable doubts to sustain the conviction and sentence against the appellant. For that matter, the appeal is meritorious and is hereby allowed. The conviction entered by the trial Court is hereby quashed and the sentence is set aside. I further make order for the appellant immediate release from prison unless otherwise lawfully held in another lawful course. It is so ordered. \ ( . . FELESHI JUDGE I i ...