jackson simon jay others vs republic 2019 tzhc 75 28 october 2019

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM CRIMINAL APPEAL NO. 02 OF 2019 (Originating from Criminal Case No. 254 of 2015 in the District Court ofliaia at Iiaia) JACKSON SAIMON @ JAY...........................1st APPELLANT KARAMPO MAKITU MGENDI.................. 2nd APPELLANT MARWA MWITA MNIKO @ LUCAS...........3rd APPELLANT VERSUS THE REPUBLIC......................................... RESPONDENT Date of last Order: 21/10/2019 Date ofJudgment: 28/10/2019 JUDGMENT MGONYA, J. Aggrieved by the decision of Ilala District Court in Criminal Case No. 254/2015 Appellants in this matter sought for an appeal before this court with 8 grounds of appeal against the conviction and sentence as herein below:- 1. That, Honorable trial Magistrate erred in holding to in-credible, un-credible and un-procedural visual identification of PW1 and PW2 against all Appellant's and 2?dAppellant respectively. 2. That the trial Magistrate erred in holding to un­ procedural identification in parade against 1st and 3rd Appellant's where PW5 did not meet with the victim nor did he inform the suspect's prior to its conduct and parade subject's had different morphology as expounded by PW2 all in abrogation of Rules of P.G.O No. 232 Rule's (1) (2c) and (2k) respectively, 3. That the learned trial Magistrate grossly erred in failing to realize huge discrepancies between PW1, PW2 and PW3 as to the source of light at the "LOCUS IN QUO" which allegedly facilitated the two positive Identification of the invader's. 4. That the learned trial Magistrate erred in holding to mobile phone exhibit P2 collectively on presumption where PW2 and PW7 were not led to identify the same before its verification. 5. That the trial Magistrate grossly erred in holding to a PF3 exhibit P4 where PW9 the alleged author was not led to identify it before court neither were its content's read over to the Appellant. 6. That the trial Magistrate erred in convicting the Appellant on basis of un-justified corroborated prosecution evidence. 7. That the trial Magistrate grossly erred in failing to appraise objectively the credibility of the prosecution evidence before relying on it 8. That the trial Magistrate grossly erred in holding that the prosecution proved its case against all Appellant's beyond reasonable doubt as charged. Both sides appeared before this court for hearing of the appeal. The Appellants appeared in person while the Republic herein was represented by Ms. FARAJA GEORGE, learned State Attorney. The Appellants averred that they pray their joint Memorandum of appeal which is before the Court be adopted and considered for determination. They further pray the Appeal be allowed and they be set free. On the other end, Ms. George learned State Attorney submitted that, they have received the petition of Appeal in respect of this Appeal and from the outset, they are supporting the Republic support their Appeal. Moreover on the 1st, 2nd and 3rd grounds are all about the claim that the Honorable Magistrate convicted the Appellants using the weak identity of which was not to be reliable by the court for conviction, this case is based on identification by one Edda Mwakisuli pg. 7 (PW1) and PW 2 Scholastica Mohamed pg. 16, in their testimonies, both witnesses said the event took place at midnight of 27th to 28th. Further in PWls' testimony said, after they were invaded by the Appellants at their house, she was able to identify all the Appellants through the light in the house which was enough. However, she didn't say where the light came from (the source), it was not known what kind of light etc. she didn't say so, She said to have identified the 1st and 2nd Appellants, while the 1st Appellant who covered his face with handkerchief, was also able to be identified. According to PW1, she testified that while finding money on search, they decided to use torch for search. The question lies here before the Court if that is the case, if there was enough light then why use a torch? Ms. George learned State Attorney, informed the Court that at pg. 13 when 1st witness was cross-examined she said the light come from outside through the window, and that is how she was able to identify the Accused/Appellants. According to PW3 Asuangwile Mwakisule pg. 27 & 28 who was the owner of the house, testified before the court that he was not able to identify anyone since it was dark during that time. Further Ms. George learned State Attorney averred as it can be seen, the issue of light had contradictory version, in that event, where there is doubt in identification due to lack of enough light, it appears that this doubt should benefit the Appellants. In the event we pray the entire evidence on identification and identification parade be expunged from the record. Hence these grounds have merits. On the 4th ground herein the learned Sate Attorney sumits that, claims that the Magistrate erred in convicting the Appellants by using exhibit P2 (Mobile phone) while PW7 was not called to identify the same. At pg. 50 PW6 - Def. Coplo Mselem testified that they were informed that properties stolen from the victim were brought to Kariakoo, so 27/07/2015 when succeeded to get a mobile phone from person with the name Joseph and after his apprehension and when asked, he came to say that he was sold that telephone by the l stAppellant. Ms. George learned Stat Attorney also submitted that, when that telephone was admitted, there was no one to tender the same and proceeded by asking the accused if they object, No certificate of seizure in that respect was offered to those properties. Even if Joseph was caught by the said telephone, there needed to be corroborating evidence like identification, of which is now already a problem. The Appellants were not the people in possession but another person. It is the submission of the learned Sate Attorney that, it is possible that Appellants did the act, however, under the above doubts and weakness during trail as pointed above, it is her firm view that conviction cannot be of strength depending on the evidence that was before the court. It is for that reason, they support the Appeal and pray the Appeal be allowed and the court set free the Appellants herein unless otherwise they have another cause. It is my considered view that submissions of both the Appellant and the Respondent have substances by me and at this juncture, I proceed in determination of the same. In reference to the 1st ground to the legality and legal position on identification, it is the Court's concern that the testimony on Identification should carefully be taken into consideration especially when it is relied upon on conviction of the Accused. The essence of the same is to make sure that mistaken identity does not fall in the limits of such decision. The case of Waziri Amani v R. [1980] TLR, 250 at page 251- 252, observed: "... Evidence of visual identification, as Court in East Africa and England has warned in a number of cases, is of the weakest kind and most unreliable. It follows therefore, that no court should act on evidence of visual identification unless all possibilities of mistaken identity are eliminated and the Court is fully satisfied that the evidence before it is absolutely water tight. In the circumstances at hand, the witnesses testified upon identification and each witness had their own view of the source of light that enabled each to identify the victims. Pwl testified t have identified the culprits by use of high vintage light which had enough light and laiter avers that the culprits used torch as a source of light. PW 2 however testified the source of light to be light from the corridor and the owner of the house testified that he did not identify anyone since it was dark, it is from this contracting evidence the testimony of the prosecution lacked corroboration on their case contrary to direction of case laws that have set the standards of identification in convicting a person. From the record of this case, I therefore find the testimony on identification shaky and not watertight as to establish identification in all its four spheres as it was established in the case ISSA S/O MGARA @ SHUKA VS REPUBLIC, Criminal Appeal No. 37 of 2005 (unreported) , It is from the above reasons I find that this ground has merit On the 4th and 5th ground of appeal on verification of the exhibits where witnesses were not led to identify them. It is in the records before this Court that there was no certificate of seizure in respect of the properties as a requirement of law and that the phone that is the object part to this case needed corroborating evidence and the Appellants weren't the ones found in possession of the said phone. Further the presence of a certificate of seizure is important in such circumstances and yet this testimony was doubtful. It is in such circumstance that the ground is meritious. On the 6th, 7th and 8th ground of appeal basing on evidence, the Appellants state that the Court relied upon unreliable and unjustifiable evidence in convicting them and was that the case was not proved beyond reasonable doubt. It is trite 8 law that the burden of proof for the Court to warrant conviction upon the Accused is for the Prosecution to prove their case beyond reasonable doubt. Provisions of section 110 (2) o f the Evidence Act [Cap 6 R. E. 20021 states; "When a person is bound to prove the existence of any fact, it is said that the burden ofproof lies on that person" In the instant case the prosecution on evidence of identification was full of discrepancies that were not water tight as to legal position of the law at its entirety. Therefore the discrepancies sail in benefit of the Appellants. It is from the reasons above, I allow the appeal quash the conviction and set aside sentence of the appellants imposed upon them. The Appellants be set at liberty unless they are being held for another lawful cause. It is so ordered JUDGE 28/10/2019 COURT: Judgment delivered in the presence of Ms. Faraja George, State Attorney for the Respondent, the Appellants, and Ms. Veronica, RMA in my chamber today 28th October, 2019. L. E. MGONYA JUDGE 28/10/2019 10