abwi ismail vs republic 2017 tzhc 2238 21 april 2017

IN THE HIGH COURT OF TANZANIA AT DODOMA (APPELLATE JURISDCTION) (DC) CRIMINAL APPEAL NO. 15 OF 2017 (Originating from Singida District Court Criminal Case No. 54 o f 2016) ABWI ISMAIL............................................................. APPELLANT VERSUS THE REPUBLIC........................................................RESPONDENT JUDGMENT 16/3 & 21/4/2017 KWARIKO, J Before the District Court of Singida appellant herein stood charged with the offence of Armed Robbery contrary to section 287A of the Penal Code [CAP 16 R.E. 2002] as amended by section 10A of Act No. 3 of 2011. He was convicted and sentenced to thirty (30) years imprisonment. Salient facts of the case reveal that PW1, IDDI HASSAN NKUNGU and PW2 MARIAM MOHAMED being husband and wife respectively were sleeping at their home in Mpambaa area within Singida district when armed bandits broke in their house and waylaid them. The bandits assaulted PW1 with machete demanding to be given money but PW1 declined. However, PW2 on seeing her husband being injured gave the bandits shs. 6,000,000/= and they left while locking the door behind. The facts further show that the couple's son opened the door for them and PW1 reported the matter to police where he was issued with PF3 where he went to hospital for treatment. The PF3 was admitted in court as exhibit PI. PW1 & PW2 said they identified one of the bandits to be YUSUFU ISMAIL otherwise known as Mnyambi Ismail by use of solar light. At the police station PW1 and PW2 identified the appellant herein as their assailant. In his defence the appellant denied the allegations and said that he went to Dar es Salaam on 12/10/2015 to look for green pastures where he was employed by CRJ as a carpenter and moved from there to another office until he returned home on 7/4/2016 to look for his birth certificate to present to his employer when he arrested for this incident and identified at Police Station. He complained that PW1 and PW2's evidence was contradictory as regards to the number of bandits that invaded their home. The appellant did not call any witness on his behalf. With the foregoing the trial court was satisfied that the prosecution case against the appellant was proved beyond reasonable doubt hence was convicted and sentenced as such. The appellant was aggrieved by the trial court's decision hence filed this appeal raising a total of ten (10) grounds of appeal which raise the following five (5) important points of complaints; 1. That\ the evidence o f identification at the scene was not sufficient 2. That, the appellant was convicted on the basis of the weakness o f defence evidence. 3. That, the trial court erred in law to shift burden of proof o f the case to the appellant. 4. That, identification parade ought to have been conducted in respect o f the appellant. 5. That, PW1 and PW2's evidence was contradictory in respect o f the number of thugs at the scene. During hearing of the appeal the appellant only adopted his grounds of appeal and did not have further explanation to offer leaving it to the respondent to reply to the same. On the other hand Ms. Magesa learned State Attorney who appeared on behalf of the respondent Republic did not oppose this appeal and her submission to that effect will be referred in the course of this judgment. This court agrees with both parties that the prosecution case at the trial court was not proved beyond reasonable doubt for the following reasons which answer the grounds of appeal seriatim. Firstly, as to the issue of identification as rightly submitted by the learned State Attorney PW1 and PW2 did not explain intensity of the solar light that they claimed to help them identify the appellant as one of the thugs who invaded them at night hours. Additionally, PW1 and PW2 did not state the duration of time they had to observe the assailants which enabled them proper identification of the appellant. Hence in this case the evidence of visual identification was not water tight against the appellant as conditions to that effect were not satisfactory. See also the case of MICHAEL GODWIN & ANOTHER V R, Criminal Appeal No. 66 of 2002, Court of Appeal of Tanzania at Mwanza (unreported). Also, if there was solar light for identification the thugs could not have used torch as said by PW2 and torch light is not effective for identification (see also MOHAMED MUSERO V R [1993] T.L.R 290). The law says even in the case of recognition as in this case where the witnesses said they knew the appellant before the material date conditions for proper identification should be proved [see SHADRACK KUHAHA VR, Criminal Appeal No. 139 of 2015 Court of Appeal of Tanzania at Dodoma (unreported). However, in this case while the witnesses said they identified one Yusufu Ismail or otherwise known as Mnyambi Ismail, the appellant's name is Abwi Ismail. This matter as rightly complained by the appellant was not resolved at the trial. Further, if the appellant was the one identified at the scene there is no reason given why it took so long to arrest him more so as he is said to be village mate with PW1 and PW2 and there is no evidence to prove that he had absconded from the village. Also, if the appellant was mentioned by PW1 and PW2 to the neighbours who responded at the scene no corroborative evidence was tendered from the alleged neighbours or the police. The first ground of appeal has merit. In the second ground of appeal this court is in agreement with the appellant that the trial court convicted him on the weakness of the defence when it stressed that he failed to call his mother to prove that he did had travelled during the material time and also ought to prove that he was employed at Dar es Salaam. The trial court ought to decide the case on strength of the prosecution case and the defence evidence was only to raise doubt in that respect. This ground of appeal succeeds. As for the third ground of appeal this court is in all fours with the appellant that the trial court erred to shift burden of proof of the case to the appellant as shown herein above. The third ground of appeal passes. In the fourth ground of appeal the claimed identification parade could not have been conducted since the identifying witnesses PW1 and PW2 said they knew the assailant before as village mate. What was important in this case was for them to prove that conditions for proper recognition were met. The fourth ground of appeal fails. Lastly, truly PW1 said three thugs had entered their house while PW2 said they were four of them hence contradictory evidence in respect of the number of thugs who invaded them as rightly complained by the appellant in the fifth ground of appeal. This ground of appeal has merit. Consequently, be as it may, the prosecution case at the trial was not proved beyond reasonable doubt against the appellant and therefore the appeal has merit and is allowed, conviction quashed and sentence set aside. It is thus ordered that the appellant be released from prison unless he is continually held for other lawful cause. It is ordered accordingly. JUDGE 21/4/2017 Judgment delivered in court today in the presence of the Appellant and Ms. 21/4/2017