20170918 TZHC Dar es Salaam3

- ..._¥ . -.-.'~;~.;r· ·t'.:JL7t2:;•:~.-.· .. ;:., -~ INTHE HIGH COURT OF TANZANIA ( AT DAR ES SALAAM CRIMINAL APPEAL NO 417 OF 2016 SALUMU S/O ATHMAN AND 2 OTHERS ........................................APPELLANT VERSUS REPUBLIC .....................................................................-.....-...... RESPONDENT JUDGEMENT In the District Court of Kilosa Morogoro, the appellant Salumu Athman Dipegea was jointly charged with Mohamed Musa Yusuf and Doto Mohamed Mede fQt;--:-:two. counts, armed robbery contrary to-'s~ction 287 of \/.·: .· (·~ . the Penal Code a·~~2~jurin~ animals contrary to section 325!.&~ 35 of the / ..• Penal Code. They Df:!h denied to have committed the offence.,}?,:: . They were found ~ty as charged and -convicted by the trrcn;;,_Court to ·•. / // serve a sentence · of 30 years imprisonment in respect of the first count and six month imprisonment for the second count. The brief undisputed facts of the case are that on 15th september 2015,Musa Simbai (Pw2) was grazing cattle which belongs to his father at 1 ~ - ,-,..~~· .~ :· ·-::-:- ~.,. .-•,•.· - :.··-~\!\.. -~-:.I,(:;l' _.·,-;! ~.-··· ,~ ( Tindiga Village within Kilosa District Morogoro.The total number of cattle were estimated to be 317. As Pw2 approached the liver subsequently encountered a group of bandits armed with Pangas, machetes, bows and arrows coming from the farm. They insulted him with frightening words "Tunakutoa roho" one of the bandits threw an arrow but fortunately he managed to escape un wounded. Among the bandits who invaded him, Pw2 managed to identify the appellants whom he claimed were armed with. arrows and Panga to wit they were approaching him in almost ten steps. After his escape at the crime~-scene, ·. :;---~·'.,·: .-· Pw2 did not know the fate of.ols ."":··(< _. cattle - but later alone· he . >};··;'. ~ }\._ · cam~-; to realize his cattle were found woun¢f~d at Tindiga in Mbwede -~•r.:_;-:,::.. :•-• Thclpellants were arrested and charged .lthe offences of armed robbery and injuring animals but denied the charge. Although each appellant filed almost eight grounds of appeal their complaints boil down to the issue of identification. 2 'f "'.".!::: -:• . ~ '• At the hearing of the appeal, the appellants appeared in person and prayed ( ' their grounds of appeal to be adopted and considered so as to be released by the Court. Ms.Neema the learned state attorney supported the appeal for the following reasons; first, she stated that the appellants were wrongly convicted as there was an unfavorable condition of identifications. She had the view that the identification· by PW2 was not clear as he did not identify a· specific person. According to her, Pw2 admitted did not see the culprit and does not know · what happened as he was not in a position to identify the accused persons. ___2§he also submitted that the entire incide0,t._,involved mob justice thus Pw2 -~::1.-- - - -:---:\- - -·; . . ·/was terrified and so he could not properly.fclentify the appellants . . ,-!'-'...~~+-- - ·:._'i{- was her submission that although Pwf.said, he knew the appellants .--lorn ~.,. . ... --. they were living together . in Tindigjfllage that was not enough to ~· .._ .. - . . ---~ j ..:.....- ··conclude that the appellants were properly identified. In emphasizing her argument she brought into the attention of the Court the decision of Filipo Rubeza V Republic Criminal Appeal No 215 of 1994.Court of Appeal,(Unreported)which under scored the legal 3 ·. .,....................._ ;i. position that the evidence of visual identification must be put to careful ( ' scrutiny in order to eliminate the possible mistaken identity. According t~ her in order to avoid mistaken identity against the appellants the police should have conducted the identification parade in order to test the witness memory as it was established in the case of Idi Ismael Vs Republic Criminal Appeal No 69 of 2014.Court of Appeal (Unreported). She also submitted that the evidence of PW1 to PW9 talked about visual identification of about 200 people of which PW6 said he identified the third accused by voice which is un reliable method of identification as it was - underscored in the case of Aon._1:1ar Nangu and Kawawa Athman Vs-:;_ \ -,;'' Republic Criminal Appeal ~-~· 109 of 2009. She further submitted that ther~:.was no description by the prosecution, evidence about the claims tha~- appellants were armed with arrow,_ __ . ~ .-.. :::. .~. . ---...=.-. . rungu and Panga. She had the view that the prosecution failed to relate - the arms with the commission of the crime. According to her, the inference was unjust as the prosecution failed to establish that the weapons were used in the commission of the offence as 4 _. . . ~t ·-~ -• . . ::..- =f ~g.-,. ::-::;: ; . - ·;·-;,ii .?. ::;:r~- .• ~ ·C: T,'. ~ there was no linkage. She lastly submitted that no seizure certificate was submitted in court and there was no linkage. between the photos and the cows and so the offence charged was not proved beyond reasonable doubt. It is common ground that the detriment of this appeal and the case against the appellants depended entirely on visual identification of the appellants As pointed out in the decision of the court appeal in Raymond Francis Vs Republic (1994) TLR 100 at page 103, it is elementary in a criminal case where detriment depends essentially on identification evidence for the Court to consider condition favoring correct identification. ______ ,,_ - - :.. ,,;.;. It is common ground that PW2 was -attacked by a group of bandits their --· ..._:<·-· • .,-~ -:·_.. _ ·::::-,~'.> · number was not ascertained, the accu5.~d ·was not sure. In such a situation :·.•:\ ·. :' · .. •. ·. ~ ~--:":""~ 1 .... • . • - ' . ~" "'"'. ., - ' - . ~ .,. .... ·. · ·\:); positive evidence of identification of thi(attackers was necessary otherwise ••.-..!~ _,. . . • ~ :,.,_r% . ·.. . . the risk of mistaken identity .could not ~:-led out. --;;.-· ,, ~ - _,. In the instant appeal, PW2 stated, he identified the appellants because he knew them before. I am aware knowing the person (culprit) might be one of the ingredients to be considered in visual identification but that alone is not sufficient to conclude proper identification. See the Court of Appeal 5 :. ·:i. ~· ....:z::.•· .-,: ··.. ~··... ~ ~~ ;".'\ ',f""" - decision ·in Vitalis Benard Kilde Vs Republic Criminal Appeal No 263 ( of 2007( un reported). In my view the prosecution witnesses did not provide evidence on how the appellants were identified among .the __ bandits.PW2 (the v1ctim) did not provide concrete detailed description of the appellants. This witness should have given a description of the appellants as he saw them at the time of the incident. The need for a witness to describe the identity in detail was underscored in the case of Mohamed Aham Vs Rex (1942)9 E.A.C at Page 72 where the Court of Appeal for Eastern Africa held that in every case in which· there is question as to the iden.[ty of the accused the description of the .·. ~- - - -~:-~~- <~~:-.; . accused is vital ingredient. ~~~-- Applying the fore cited legal pr{q~ple,I agree with the submission by the'.i;.:· . · > ' 'il, 0 · • · i>oi:;:: learned state attorney that the .llants were not properly identified and-. . ~ -,.:_~.- . .· -··. . - . . - in the circumstances of this case it cannot be said that the condition ,for the identification of the appellants at the scene were favorable. The Court finds that, it was unsafe for the trial Court to sustain the · appellant's conviction basing on unfavorable condition for identification. 6 · It is for these noted critical discrepancies in the prosecution case on the . evidence of identification of the appellants that I find persuaded to allow · the appeal. Accordingly I quash the conviction and set aside the sentence. 7