20171002 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM CRIMINAL APPEAL NO. 366 OF 2016 (Originating from Morogoro. District Court at Morogoro in Criminal Case No. 278/2015) STEVEN HERMAN LUFIJO ..................................APPELLANT VERSUS THE REPUBLIC .............................................. RESPONDENT JUDGMENT MKASIMONGWA, l. The Appellant one STEVEN HERMAN LUFITO and another stood before Morogoro District Court charged with Armed Robbery: Contrary to Section 287A of the Penal Code [Cap. 16 R.E 2002] as amended by Act No. 3 of 2011. It was alleged by the prosecution that:- "... STEVEN HERMAN LUFITO, on the 25d September✓ 2015 at Tubuyu Tungi Ward within the District of Morogoro in Morogoro Region, stole two laptops make, DELL valued at Tshs. 1,800,000/ , two mobile phones make NOKIA LUMIA valued at Tshs. 336,000/ , one mobile phone make SUMSANG valued at Tshs. 45,000/, one Azam Decoder valued at Tshs. 120,000/- and cash money Tshs, 2,500,000/- all total Vqlued 1 at Tshs. 4,801,000/- being the properties of GEORGE KINIMBA and immediately before such stealing, used weapons like gun, pangas and ''rungu" to threaten the said, GEORGE KINIMBA in order to obtain the said stolen properties'~ He was found guilty and convicted of the offence and accordingly sentenced to serve thirty (30) years imprisonment. He is aggrieved by both the conviction and sentence hence this appeal. In the petition of Appeal the appellant shows that the court was not justified to enter the conviction for the prosecution did not prove its case beyond reasonable doubt. This is because:- 1. The appellant was not properly identified at the scene of crime 2. PW1 and PW6 had contradictory stories of evidence in court. 3. There was no corroborative evidence adduced against the appellant 4. There was no evidence showing that the appellant was arrested in connection with the offence he was charged with. The facts of the case as they can be comprehended from the adduced evidence are as short as that GEORGE KINIMBA (PWl) and IRENE JUMANNE (PW4) are a husband and wife respectively. On the 23 rd September, 2015 the two were sleeping in their bedroom, in their house, where there were also VIVIAN GEORGE (PW2) and REHEMA JUMANNE (PW3). At or about l.00hrs two persons stormed into the spouses' bed room and switched on electricity light. One of the two persons had covered his head wrapping it with a piece of cloth. They demanded to be given cell 2 phones and money and managed to robe their cell phones all valued at Tshs. 361,000/=, cash Tshs. 2,500,000/=, (HP and DELL) Laptops valued at Tshs. 1,800,000/= and the Azam TV Decoder. PW7 informed one Insp. DANIEL MCHOME (PW6) that the suspect/accused is a Security Guard working with LUKUBA SECURITY GUARD Company who had guarded his compound when he was away from the home. The appellant was therefore arrested and charged with the offence. When the Appeal came up for hearing there appeared before me the appellant and Miss Debora Mcharo learned State Attorney. The later represented the Respondent Republic. On being invited to argue the appeal the appellant asked the court to consider the grounds of appeal listed in the Petition of Appeal and find merit in the appeal and accordingly allow it and order for his immediate release from jail. On her part Miss Mcharo supported the appeal. She generally submitted that the appellant was charged with Armed Robbery which offence was alleged to have been committed during night time. Going by the evidence given by PWl, PW2, PW3 and PW4 the same does not clear doubt in respect of the accused's identification at the scene of crime. Although the evidence shows that at the scene lights were switched on none of the witness did tell the court how he or she identified the appellant at the scene of crime and the evidence is generally silent as to how the appellant was connected with the offence. The learned State Attorney added that, as the witness had alleged that they knew the Appellant prior to the alleged robbery an identification parade mounted by the police was 3 of no any essence. Miss Mcharo submitted that as the appellant was not properly identified it is doubtful whether he committed the offence. In considering the matter, I find determination of the same depends the question whether the Appellant was properly identified at the scene of crime. I so find upon being satisfied that there is ample evidence that on the 23 rd of September, 2015 at or about 1.00 am, the complaint's house was broken into by people armed and threatened to do harm with a view to obtaining the stolen properties that is cell phones, Laptops, cash, and a TV Decoder. As rightly considered by the trial court the case of WAZIRI AMAN Vs. R (1980) TLR 250 is among those cases that provide for guidelines in the cases of visual identification is at issue. In deciding whether or not the accused was identified at the scene of crime the court should consider the following, among others. • The amount of time the witness had the accused person under observation. • The distance at which the witness observed the accused person • The conditions under which such observation occurred; day or right time • Whether there was good or poor light at the scene. • Whether the witness knew or had seen the accused person before or not. The available evidence is to the effect that on the fateful night two persons forcefully entered into the complaint's bedroom. They switched on electricity lights. They were armed. One of them was carrying a short gun and the other had a machete and a club. According to the evidence one of 4 the thugs had covered hiding his face with a piece of cloth. According to PW1 it is the appellant who held a machete and club and that the appellant's fellow had a shotgun and it is him who had covered his face. When testifying on that fact PW4 (who was together with PW1) told the court in evidence that:- "One of the bandits was holding the gun and another one was wrapped in his head with a piece of cloth. Another bandit was holding the machete" In respect of the same fact PW2 is recorded to have stated as fellows in evidence:- ''! was awakened by the sound of the door of my room being pushed up by bandits. I got up I found a person covered his face and his head only his eyes was seen he pointed his machete on my chest. He told me to give him the cell ,J.., p,,ones... ,, In that regard also PW3 told the court that:- ''! waked up and set on the bed. I saw people entering inside the house. One holding the shotgun and another one carried the machete and he covered his head with a piece of cloth" From these versions of testimonies one comprehends that:- 1. According to PW1 the appellant was the one in possession of a machete and club and was not covering his head. It is the fellow bandit who had covered his face and was holding a shotgun. 2. According to PW4 the bandit who held the gun had not covered his face but the one who had carried the machete and this gets support 5 . ' of the testi many of PW3 that it is the one who had a machete that head covered his face. The same story of evidence was given by PW3. In evidence PWl told the court that he came to know the Appellant on the date and time of commission of the crime. As such the witness was not in a better position of telling PW6 that the one who had stormed into his house was the person who had sometime guarded his premises. Secondly PW2, PW3 and PW4, the latter being the person who knew the appellant before, did not tell the court that the person who had covered his face and holding the gun was the appellant. Presumption is therefore that the Appellant was the one who was holding the machete and club as PWl had told the court. PW2, PW3 and PW4 however could not exactly tell the court, and I think they were right that the one who was holding Machete was not one else but the appellant, because he was covering his face. It is my view that there is a contradiction in the evidence given by PWl on one hand and that given by PW2, PW3 and PW3 on the other hand as to what arm exactly the appellant was carrying at the time of commission of the offence and that PW2, PW3, and PW4 could not certainly tell the court that the one who was holding a machete and club was the appellant, as the latter is alleged to have masked his face by a piece of cloth. In that premises, I join hand with the learned State Attorney, that the prosecution did not properly lead the evidence on the identification of the Accused at the scene of crime and clear any doubt in that regard. Had the trial court approached and evaluated the evidence in that way certainly it could not reach to the conclusion it had. 6 , .• t Date: 2/10/2017 Coram: Mkasimongwa, J For the Appellant: Present in person For the Respondent: Miss Debora Mcharo (S/A) C.C. E. Wangwe Miss. Debora Mcharo (S/ A): My lord the matter is coming up for Judgment. The Appellant is preset in person. We are prepared to receive the judgment. Court: Judgment pronounced in Chambers this 2nd of October, 2017 in the presence of the Appellant in person and of Miss Debora Mcharo (S/A), for the Respondent. Right of Appeal is fully explained. r-'J~ E. J:-Mkasim~wa JUDGE 2/10/2017 8