20190708 TZHC Mwanza

. IN THE HIGH COUJ OF TANZANIA I IN THE DISTRICT REGISTRY AT MWAINZA HC. CRIMINAL APPEAJ NO. 312 OF .2018 €Original cri11?t,101 case No. 191 of 2017, the Di~·trict Court ofSengerema at Sengerema) .l . . f 1. {DENIS KANU @ OS A . 2.. DEUS PAULO ..... : ...................................... I...........................................APPELLANTS VERSUS THE RENJBLIC ......................... ;..................... J......................................... RESPONDENT JUDGMENT ~4/05/2019 & 08/07/2019 G. ]. Mdemu, J; In the District Court of Sengerema the two Appellants were charged with armed robbery contrary to the provisions of !ection 287 A of the Penal Code Cap. 16. This was in criminal case No. 191 of 2017. Adcording to the particulars of offence in . I . the charge, on or about the 14 th of July, 2017 at Biswa Islands in Lake Victoria, the 1 two Appellants did steal 350kg of fish and o 1~e fuel tank, the property of Makonzo Theobard and immediately before and or aftJi· stealing deployed a gun for retaining the stolen properties. Background to this robbery is such that, during the fateful day, Adamu Ihonde, (PWS), Emmanuel Dickson, Wilson and one Oseji were at Biswa area from Busza Island. They were in one boat. As they 1jeached Biswa, another boat overtaken them and they ordered then to stop. That bo1t had sport lights. The first Appellant had a gun. The two Appellants then took all) the fish and a fuel tank and off they I went. PWS identified the two Appellants by the aid of s1Jort lights. He reported the . I matter to police thus leading to the arrest of q1e Appellants. They were charged and I to conclusion of trial, the District Court of Sed,gerema sentenced the two Appellants to thirty (.30) years prison 1-erm each. This waJ on 25 th of October, 20J B. .· -"'='""-•l -"'7--1_ _.,. · The two Appellants got aggrievesi by that decision and appealed to this Court by filing the following grounds of appeal;- . 1. That, the trial Court had grojly erred in law and fact by relying on I unfavourable visual identification. . 2. That, . the trio~• Court erred in IJw i and iactto rely on the iden tiftcation I . factors in which no descriptive features of the assailant ever disclosed, but rather a generalized staten~ent of identification. I 3. That, the trial Court Magistrate overlooked the canon factors which highlight the principles govir~ing evidence of visual identification even with familiarity claims/recognition. 4. That, PWS Adam lhonge's Jidence as to identification· of the I appellants was rather afterthought, so far as it lack material I corroboration from PWl, PW2 and PW4 (the earliest possible opportunity). I I The two Appellants appeared before me on 14 of May 2019 fending tJ?e th appeal. The Respondent Republic. on thlat day had the service of Ms. Maryasinta Lazaro, learned State Attorney. The first Appellant in addition to the contents of his grounds of appeal submitted that, he was not identified and that identification parade was not conducted. He added also that out of 6 witnesses of the prosecution, only PWS who I testified to have identified the first Appeliant. His evidence also is not corroborated. The second Appellant also submitted Jo have not been identified. With those I observations, the two Appellant_s prayed that their appeal has merits and .be allowed. Ms Maryasinta Lazaro, learned State Attorney supported the appeal. She combined all the grounds of appeal i) one that the only evidence on visual I 1. ..::::::::::::;:....::::=--- I I I identification is that of PWS which the learned trial Magistrate trusted. PWS was I r. trusted because of the aid of sport lights ,Jie used to identify the two Appellants and 1 also that, he knew them for over eight ( 8) years. She thought this evidence is not i I . reliable for want of description of the said sp_ort lights and was from which boat and at what distance. The learned State Attorney on those facts, was of the view that benchmarks . I set in the case of Waziri Aman Vs. R (1980) TLR 250 was not met by PWS. As there is no any other evidence to con!oborate this, the learned State Attorney submitted that, the case was not proved!· hence her not supporting conviction and sentence. Thoe two Appellants had nothind to rejoin. After having heard and considerL submission of the parties and having considered the evidence on record, I entJe-ly agree with the analysis of evidence of I the learned State Attorney that the available evidence used for conviction is on visual identification and is from the testi1pony of PWS. Other prosecution witnesses I to wit, Emmanuel Chacha, Dickson Michael, Wilson John, Makonzo Theobard an~ Frank Constantine, PWl, PW2, pw~, PW41 and PW6 respectively all testified to have not identified the two Appellants. The question now is whether the testimony of PWS alone on visual . . I . . identification has established none other than the two Appellants to have robed PWS and his companion. The learned State Attorney hesitated to accept the testimony of PWS. In examination in chief regarding aiders of identification, PWS stated at page 23 of proceedings as hereu/2der:- "On reaching at Biswa, I saw the sLrt light warning to stand. I put a ·speed aj"t-erfew minutes~ one boat ovkrtaken us dn.d ordered as to stop." I . Later during cross examination at: page 24 of the typed proceedings, PWS continued to testify as hereunder;- I I -=====, lJ "/ identified you because I lightened Jiau with spot light then I got 11 comforted with you and you stand uplon my back." "'j.·· V: As seen in the above noted patches of evidence, there are two deficiencies in the testimony of PWS. One is that, he has failed to describe the ii1tensity of the sport lights. Two, he contradicts himself on the J~urce of sport lights that were in the boat of the Appellant and during cr~ss examinJion PWS appears to suggest that hi~ boat had sport lights. The learned trial Madistrate did not identify (retrieve) such l . contradiction and resolve them as direct~d in the case of Mohamed Said Matula V.R (1995) TLR 3. . I am aware that, in terms. of the pro isions of section 143 of the Evidence Act, I Cap. 6, there is_ no agreed number of wit)1esse, required to p~ove a particular fact. That means, even one witness can do that. What is important is the credibility and how trusted the said witness is. . With the testimony of PWS, I agree with the learned State attorney that, the evidence of PWS alone cannot stand to pLve the offehce of armed robbery beyond reasonable doubts. That eVidence requi,es corroboration which is lackillg in the instant appeal. Notwithstanding, the learned trial Magistrate trusted PWS in the ) following version as noted in page 3 of the judgment:- "/n essence among t he six . prosecutwnI . .. . . . witnesses, 1t 1s on Iy t he ev1'd ence o'F 1 PWS Adam lhonde which touched tAe accused persons in the commission I of offence they are charged with. The said PWS in his testimony stated that he was kidnapped by the armled robbers whom claimed to be the accused persons in this case. I havd no doubts with the identification of . I . the accused persons by PWS becaufe though the event occurred during the night:, he spent a lot of time with them when they were conducting miserable COrture l'o him and thdre I was spotlight: . , and a /'.Jel:ro max "I(araboi" which enabled PWS t:o 'ident:ify t:hern. After all the accus·ed petsons are living in the same area with PWS and he is known to them ' i• I for almost eight years now. From that clear explanation, I am 1n full satisfaction that the principle of ide,~tification of accused as enuncibted in the cases of Waziri Amani 'Vs ·The Republic {1990) TLR 250 land Issa .Ng.wali Vs The Criminal AppeafNo. 215 has been met". Had the learned trial Magistrate nalyzed the evidence of PWS properly, he would not have arrived at the above nl1dings on visual identification_ of the two Appellants. With those observations, I am settled that, the evidence to connect the Appellant with the robbery in question ·ifs wanting. I am therefore of the .view that, the case of the prosecution was not p1j°ved. Accordingly, the appeal is allowed. Conviction for the offence of armed robbery is quashed and a thirty (30) years custodial sentence to each Appellant is alcordingly set aside. I further order release of the Appellants unless, for lawful cause held thereat. It is so ordered. . jI ------f1-------.., G. J. Mdemu Juklge I 08/0v2019 Dated at MW.,::.:~,;.• 0 ~ ~ • • :.::Q8th day of July, , .••• , "" zrI\ 9. .::=::::::::::==~----