20170724 TZHC Mwanza

I IN THE HIGH COURT Of TANZANIA. AT MWANZA i . . APP!EllATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO. 33 Of 2017 . . I (Original Criminal Case No. 107 of 2015 of the District Court of Musoma District at Musoma) I IIJNIDE CONSTANTINO @ UNDE ............•...................... APP!EllANT 1 VERSUS. · I . THE REPUBLIC G. a Ill E Ill l!I E ,,,·. ■ 1:111111.111111• ~ 111 I! l!W II I! Iii:! !iEf ■ ■ c mti ■ ■ •·• ■■ 1111 ■■ ■ •• ii 1 ■ "RESPONDENT 11 C 11 JUDGMENT· MAKARAMBA, J.: I The Appellant be~ore this Court is cortesting the decision of the District Court of Musoma at Musoma in Criminal _Case No. 107 of 2015. The Appellant, UNDE s/o CONSTANTINO @ UNDE and other accused ; persons, Six s/o Ernest @ Nkuba, Jofrey s/o. Kagua; Peter s/o Nkuba @ John and Kinguy s/o Kajura @ Maungu, were· jointly arraigned before the trial Court facing a charge of Armed Rob~ery Contrary to Section 287A of the Penal Code, Cap. 16 R.!E. 2002 as amended by Act No. 3 of io11. It was alleged before the trial Court that the five accused . . I th persons on the 09 November, 2015 at 21:30hrs at White Bar Nyarhatare ' Area within Municipal District of Musoma in Mara Region did steal cash I Tshs. 880,000/= and two mobile phones make TECNO valued at Tshs. I . . 80,000/= properties of Pili w/o Thomas and immediately before the incident used "panga" to threaten her so as to retain or take the Page 1 of 4 II .. I ( .I \. ( properties~ Foliowing the evidence of pro?ecution and ·defence, the trial . st . · Court found the l. accused, Six s/o · Ernest @ Nkuba not ·guilty of the- • ' I . • . offence as charged but found the 2nd accu$ed, Unde Constantino @ Unde, the Appellant herein; guilty as charged ahd sentenced ·him to serve 30 · years imprisonment. · The Appellant having been dissatisfied I with the conviction and sentence has appealed against it before t~is· Court on four grounds. In prosecuting the appeal, the Appellant was! represented by Mr. Makongo, learned Advocate who also Advocated for t~e Appellant at the trial Court. The Respondent was represented by M{ Gisela Alex, learned State I . Attorney. . i I In his submissions in support of\ the appeal, Mr. Makongo ' consolidated and argued the 1st and 2nd grounds of appeal jointly and the I rd 3 ground of appeal separately. The fourth ground was of a genera·, I nature and argued it generally, essentially making it only two main grounds ! o(appeal. In the present appeal, Ms. Gisela Alex, in her reply supported the appeal. This being the case I shall only point out the main areas of the I appeal; since both learned Counsel seem to have a consensus that the I appeal should succeed. · . j I The first are relates to identification :~vidence. Ms. Gisela Alex, · enjoined this Court to· consider ·a host of holding in a number of Court· cases particularly WAZIRI AMAN VS. REPU_BLIC [1980] TlR 250, .on the ingredients which make identification watertight. In the present appeal t~e identification was not watertight. The two~ main prosecution witnesses, PWl, husband, and PW2, wife, testified in a iontradictory manner on the . : Page 2 of 4 I ·I i ' r t persons they claim they identified, PWl claiming th 9t he 1dentified the Appellant at the Police Station while_ PW2 who was under a table identified . . the legs of the Appellant. PWl was called to the c·rime scene. PW2 was at the crime scene. The neighbours responded to the a_larm raised. Not PWl nor PW2 managed to mention to the neighbours the name of the person they allege that they identified at the crime scene, although PV\fl and PW2 both seem to claim that the Appellant was a youth and their neighbour. The identification made at the crime scene as per PW2 claims that was aided by electric bulb light, but no evidence of its intensity was given so as to allay fears of mistaken identification. . . Paradoxically, the Appellant has been mentioned as ADE and KIBUNDE both riames not being his names. The fact that the Appellant was identified at the police where . he had gone to seek PF3 having .been involved in a. "bodaboda" accident; and the fact that PWl . and PW2 did not mention the name of the person they claim they had identified at the crime scene to the persons who had responded to the alarm raised, raises serious doubt as to whether indeed the Appellant was the ·one who committed the alleged crime. · On the evidence on record clearly there was no basis for finding the . . Appellant. guilty of the offence as charged. The contradictions in the testimonies of PWl and PW2 as to what each claim to have witnessed at the crime scene, and doubts as to the participation of the Appellant in the alleged crime, ought to have been resolved in favour of the Appellant. Page 3 of 4 It is for the foregoing reasons that,·· this appeal is allowed. The conviction by the District Court of Musorna a:nd the sentenced of (30) years imprison·ment imposed on the Appellant are hereby. quashed and set aside .. The Appellant UNDE s/o CONSTANTINO @ UNDE shall immediately be released from prison where he is being held and set at liberty forthwith unless he is being held therefore some other lawful reasons. It is so ordered. R.V. "M A . JUlD.Gf. ATMWANZA 24{07/2017 Page 4 of4