majuto julius mololela vs republic 2017 tzhc 2116 4 august 2017

IN THE HIGH COURT OF TANZANIA AT DODOMA (APPELLATE JURISDICTION) DC CRIMINAL APPEAL NO. 148 OF 2016 (Original Criminal Case No. 60 of 2016 of the District Court of Mpwapwa at Mpwapwa) MAJUTO JULIUS @ MALOLELA...................................................... APPELLANT VERSUS THE REPUBLIC..............................................................................RESPONDENT JUDGMENT 24/0 7/2017 & 04/08/20 17 A. MOHAMED, J. The appellant was convicted ofburglarycontrary to section 194 of the Penal Code (Cap 16RE2002) by the District Court of Mpwapwa and sentenced to 7 years imprisonment. He now appeals against both conviction and sentence on the following grounds: 1. That he was not identified. 2.That the complainant (PW1) did not immediately name his assailant after the incident. i 3. That the trial court erred in believing he was settling scores with the complainant 4. That the trial magistrate failed to properly analyst the evidence before him. Briefly stated, it was the prosecution’s case that on 3/4/2016 at about 01:00 hours at Itende village within Mpwapwa District in Dodoma Region, the appellant together with another person broke into the dwelling house of one Joshua Fredrick @ Mkombola with intent to commit an offence therein. The appellant appeared in person whilst, Ms. Kezilahabi, State Attorney appeared for the respondent. Being a lay person, the appellant opted to reply after the counsel’s submission. For the respondent, Ms. Kezilahabi at the outset supported the appeal on the subject of visual identification. She said first, the victim (PW1) said he identified the appellant because the room where he was attacked in was illuminated by a solar lamp using a battery; but he did not describe the intensity of the illumination. He saw two assailants but he only described the clothes worn by the appellant. The counsel said this creates doubt whether it was the appellant who committed the crime or some other person. She referred to Waziri Amani v Republic (1980) TLR 252 that held; “No court should act on evidence of visual identification unless all possibilities of mistaken 2 identity are eliminated and the court is fully satisfied that the evidence is watertight”. In concluding on this complaint, she submitted that since PW1 could not fully describe the appellants, there is doubt as the possibility of mistaken identity has not been ruled out. The counsel also agreed with the 2nd ground that the complainant (PW1) did not immediately name the assailant after the incident. He said he had told his father (PW3) but he did not tell the village leadership. The Village Chairman (PW7) who came to the scene immediately after was not told of the assailant’s name. When cross examined, the complainant replied he did not know the assailants but only remembered one of them wore black clothes. PW1 admitted he did not tell the Chairman (PW7) as he feared the latter would defend the appellant, a member of the village Community Police. It was the counsel's view this failure in naming the suspect creates doubt. For these reasons, the counsel submitted, the lingering doubts she pointed out could not have grounded a conviction in the trial court. The appellant had nothing to reply in his rejoinder. After hearing the parties and upon reviewing the record, I will consider the appeal. The 1st question is whether the appellant was properly identified by PW1 during the burglary. According to PW1 he was able to identity both assailants by the illumination of a solar lamp lit by a battery. I think the conditions as stated by PW1 were not conducive to positively identify the assailants. He did not describe the intensity of the illumination and therefore this does not rule out the possibility of mistaken identity. See Waziri Amani v Republic (1980) TLR 252. I am also in agreement with the parties’ observation that the complainant (PW1) failed to name the suspects immediately after the attack. He had claimed to have told his father (PW3) immediately after the attack. I think the complainant ought to have given the names of the suspects to the Village Chairman (PW7) who had rushed to the scene immediately after the incident and had also visited the complainant’s house the next day. This principle was re stated in Marwa Wangiti Mwita v The Republic where the court made the following observation:- “The ability of witness to name a suspect at the earliest opportunity is an all important assurance of his reliability , in the same way as unexplained delay or complete failure to do so should put a prudent court to enquiry I think these two grounds suffice to dispose of the appeal since I am satisfied the prosecution failed to prove its case beyond reasonable doubt. In the final, I allow the appeal, quash the conviction and set aside the sentence. The appellant is to be freed forthwith unless held for lawful cause. It is so ordered. A. MOHAMED JUDGE 04/08/2017 The right of appeal explained. 4^:-; h ,.- v- ” A. MOHAMED 1 '. ' =i JUDGE 04/08/2017 \ \ i 5