20151021 TZHC Mwanza

.... - - - IN·THE HIGH -COURT OIF TANZANIA IN THE DISTRICT REGISTRY ATMWANZA _ (Arising from Ukerewe Di~trict Court in CriminalCa$e No. 165 of 2013)_ INNOCENT S/0 BWIRE .. ~ .. :... ~ ..................................... APPEllANT versus THE REPUalIC. ■ a ■ • II' m lltl C ■ tr ■ a I' II Ill Ill; Ill II C II ■·•• 11• a■ •11 ■ a II ■ II O cc ftl.'S: ■ ■~ 1111 ■•11'•2:E ■■■ RESPONDENT f - - JUDGMENT J,zth & 2JS1, October, 2015. J. A. DE-MELLO, J; Four counts of offence of Armed Robbery contrary to section 287 A of the Penal Code, Cap. 16, Revised Edtition 20021 against the appellant - Innocent s/ o Bwire before the District Court of Ukerewe. -He was found guilty as charged, convicted and sentence to serve thirty years (30) years imprisonment for each count, also was ordered to suffer twelve strokes of the cane. Aggrieved, he is now ·appealing before this Court - against - both conviction - - and, sentence. . rounds:- ( a. That, the trial court erred grossly in law·and fact . . _to . convict the appellant of the offence. of:armed . ro/}bery C/s 287A of the· Penf]iCode {Cap 16 R.E 2002) and sentencing the· appellant to thirty {30} years imprisonment against the weight of evidence. b. Th~t, the triafcourt erred grossly{sic} in law and fact by convicting the appellant of the offence of armed robbery c/s 287A .of the Penal Code Cap 16 R.E 2002} without watertight evidence of identification{sic} of the appellant on the alleged · offence of Armed Robbery That the trial court erred grossly in law and fact by adopting and improper style (sic} of the sentencing the appellant to thirty {30} years imprisonment. The offence allegedly to have occurred on the 9 th day of December, 2013, at · around 00: 30 hrs, within Kagunguli village in Ukerewe District in Mwanza Region,· the Appellant at· different times and place, did steal from various persons, a variety of items including three cellular phones TShs. 120,000/ = three other ·cell;.dar phones make of Nokia valued at T~hs. 105,00Q/ = ·cash TShs. 700,000/ :.__ to_tal of TShs. -925,00/ = . . . property. of one Abd!aUah Chardes and slashing him with a . . machete. On a -second count it was one Biseko Ndaro cash money· TShs. 1,400,000/.=, one cellular phone make Nokia valued TShs. 35,000/ = total rshs. 1;435,000/ =, Third count cash money TShs. 700,000/ =, thirty cellular phones amor.u1ting TShs. 1,350,000/ =, - one camera f!Ulji make valued TShsG 750,000/=, ceHular phones batteries 15 of them TShs. 225,000/ = two shaving mac~ines vahied at 130,000/ = totaling all to TShs. 3,1551000/ =, property of Dickson Charles .similarly slashing him with a panga. la~t count the 4 th , he did steal TShs. _500,000/ =, ten iceUular .phones valued TShs. 650,000/=, totaling TShs. 1,150,00/= belonging to one Jondoson Mahushi by threatening with a machete. The Appeallant was in the care of Kaunda learned advocate as Castus Ndamugoba State Counsel fending for the Republic, the Respondent. Submitting with regard to the ist ground on lack of weighted evidence, Counsel stated that going through the proceedings none of the witnesses six in numbers, did see the- Appellant by their own e~s~ a~ a culprit. ~ ✓~ 3- ( _Further that, even the victims never reported -to police making the whole -ca?e sought of a fabrication. With reference to the second ground, Counsel is of _opinion that without watertight evidence for convicting the Appellant, the Trial Magistrate based his findings against him. The prosecution did fail to measure up to the standards of proof set in cri11:1inal cases thus benefit of doubt on the part of the Appell,mt was appropriate. Citing the cases of Moh~med Shaban vs. The Republic, Criminal Appeal No. 41 of 2009 and that ~f Joseph Sera Uumi!e vs. The Republic, Criminal Appeal No. 304 of 2013 (both Unreported} at Mwanza Registry to fortify the argument above- and the need for cogent and sufficient evidence for proof in identification cases. Considering the offence which occurred at midnight, the principles for identification in terms of lightning and its intensity, location, distance and proximity, dressings just to mention the basic were wanting. Attacking the sentencing, Counsel stated that the thirty (30) years on eath count to run consecutively was frivolous and illegal. It ought if justified, to run. co~currently. In such irregularities and faults, the Appeal has merit and prayed for the acquittal of his client forthwith. The conviction quashed as sentence~~ ( Castus Ndar,,iugoba, learned Senior State Attorney vehemen~ly rebutted the Appeal basing his submission on visual iden_tification as testified by. PW1, PW2; PW3 . and that of PW5. These, he said were ~ey eye witnesses who saw the· accused as he attacked· them· as depicted from page 12 of the typed proceedings. PW1 did testify the nature of_ the light coming ·rather drawn from electric bulb. The accused was a popular_•. colleague in business_ and a neighbour too. This is drawn from page 13 of the typed proceedings. The conditions for identification were· such favourable for adequate identification. Most corroborated each other in proving that it was the accused appellant and none other who was the culprit. The personal attacks and inflicting of wounds made it possible for the victims to ·observe all what was happening and all were shocked to learn that it was someone well known to them. Pages 15, 19, 20, 21 even highlighted how PW4 with other managed to arrest the Appellant shortly arrested after the incident. It is the mentioning at an earliest opportune time that, the Appellant was arrested at the play ground 'uwanja' as opposed to his homestead. He was on the run and aided by citizens he was dragged to Police. Talking of the sentence, Counsel was in one with the Appe11ant that it ought to run concurrently a r ·conclusively, Counsel prayed for the Appeal to be :dismissed it lacking in merit. . In a short rejoinder, Counsel Kaunda submitted that visual identification· _on which the Court relied upon was weak and highly unreliable to sustain conviction against his client. The timing on which the offence is alleged to have happened is not consistent, highly contradic_tory and unrealistic to sustain conviction. The law on visual identification is trite .that it is the weakest form of them all. Caution is given that Courts in dealtng with it ought to act with great care lest accused are convicted based on mistaken identity. Different shops were invaded and robbed under violence as testified by PW1 Abdallah Charles, PW2 lSiseko Ndaro, 'PW3 Dickson Charles, and PW4 Jondoson Mahushi. It is a· fact that· it all happened after midnight were \ the victims were asleep. As observed by the Appellant unless such evidence. is watertight conviction is wanting. The Court of Appeal has. on many . . occasions cautioned Courts to abide to strict rules leaving no shadow of doubts in matters of identification, worse even, that of visual. Many cases have alluded to this to include and not limited to· C Kanenyera vs ·R, {1992) TUil, Mengi Paulo Samwefii luahanga & . . Another. vs R, Criminal Appeal.No. 222 of2006 (All Unreported) . . It was· restated rn the case of James Kanenye_ra (supra) that:-.. "lit is equally settled law that in a case depending for its determination. essentially on identification be of single ·witness or more·. than one witnesses, th~t evidence must be watertight, even if it is evidence of Likewise, in the celebrated case of Isaya Mohamed Isack vs. Repubik, Criminal Appeal No. 38 o.f 2008 (CAT) Arusha [Unreported] held; "No court should convict an accused person on basis of :visual identification only unless al/the possibility of mistaken identity is eliminated and the court is fully· satisfied that the evidence before it is absolutely watertight'' In view of the above cited cases, I would sincerely agree with the Appellant that the Trial did not address itself properly and adequately on possible mistakes accrued out of visual identification. . ·. ( ---(. Regarding the legal issue· on naming rather mentioning of the suspect at:. the earliest opportur:1e time, -the law is clear that the ability of ·a witness to . . n·ame a· suspect at the earliest opportunity is an all-important assurance of his· reliability. And if this is not enough it.should be coupled with .proper and adequate identification. With great· respect I am hesitant to believe that this was sufficient.. See how the case of Waziri Amini vs. R, [19.80] TLR 250 stated the position on visual identification and, which I find prudent to restate as follows; "Although no hard and fast rufles can be laid down as to the manner a Trial Judge should determine questions of identity, it seems clear to us that he could not be said to have properly resolved the issue unless there is shown on record a careful and considered analysis of all the surroundings circumstances of the crime being tried·. We would for example ·expect to find in r:ecord questions as the foHowing · posed and resolved by him; the· time the witness. had the aq:used under observation; the distance at which he observed him; the conditions in which such ·observation occurred for instance; whether it was day or ni whether /' . \ (_ · . there was good or poor light at the· scene; and "further whether -th~ witness know or had seen the ace.used before or not".. This you will agree with me, was not the case. On sentencing and as conceded by State Counsel, I need not labour much on it.· Jt was wrong for it to _run consecutively as opposed to the requirements of t_h~ law for concurrent.· In the above analysis, I find this Appeal meritorius. I hereby therefore, quash the conviction and, set aside the sentence. - .I further order the immediate release of the Appellant forthwith unless · held otherwise for any other lawfully cause ..