20190515 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA IN THE· DI.STRICT REGISTRY ATMWANZA HC. CRIMINAL APPEAL NO. 261 OF 2018 (Original criminal case No. 383 of 2016 of the [)istrict Court of Geita at Geita) - ABEID RAMADHAN@ SIMBA ..................................................................... APPELLANT VERSUS THE REPUBLIC ........................................ :.... :......................... :................. RESPONDENT JUDGMENT lD/04/2019 & 15/05/2019 G. J. Mdemu, J; • I In the District Court of Geita the two Appellants and one Swahibu Ramadhan @ Lumala @ Swai, the then second accused, were jointly apd together charged with armed robbery contrary to section 287"A" of the Penal Code Cap. 16. This was in criminal case No. 383 of 2017. It is in the particulars of offence that in the night of 16 th of October, 2016, at Nyarugtisu area, the three did· steal cash money. Tshs. 11,000,000, 860/= grams of gold and 3 mobile phones all valued at Tshs. 47,450,000/= properties of Majaba Masanja and in the- course of st~aling and retaining such properties, threatened one Ngoro Nkuba using a machete,· an axe and ' . a gun. The Appellants were· identified using torch and electricity light and accordingly they were arrested. They however denied involvement. Notwithstanding, at trial, on hearing eight prosecution witnesses and three witnesses of the defence, the learned trial Magistrate found the two Appellants guilty as charged and accordingly convicted and sentenced them to a prison term of thirty (3.0) years. The then second 0ccused person one Swahibu Ra!Dadhani @ Lumala @ Swai was acquitted. This was. on 18 th of July, 2018. Aggrieved, the two !1 . Appellants filed four grounds of-app.eal which mainly centers on two aspects. One is ~ visual identification and two is the doctrine of recent possession. \, ' Arguing the appeal on the 10t_h of April, 2019, the two Appelfarnts _appeared in •person. The Respondent Republic was· represented by Ms. Maryasinta Lazaro,. learned State Attorney. The two Appellants submitted that, contents of thei_r grounds of appeal as they are in the petition of appeal be adopted as part of their submission. The s~cond Appellant however promised to rejoin after he has he~rd_ the position of the learned State Attorney. They then prayed their appeal be allowed. The learned State Attorney supported the appeal. She submitted on two points. One is application of the doctrine of recent possession and the other is the issue of visual identification. Regarding the doctrine of recent possession, Ms. Maryasinta Lazaro submitted that, PWl one Ngolo Nkuba did not provide any special ma.rk to identify her stolen mobile phon~, exhibit P3. She also submitted that, _PW1 testified to have had her Huawei mobile phone stolen by the Appellants but what was tendered in Court was Sumsung. As there was no, proper identification of the stolen properties, the learned State Attorney submitted that, the doctrine of recent possession can not apply. As to visual identification which the learned trial Magistrate found to have been proven, it was her submission that, identification made by PWl to the second Appellant Nassoro aided by torch light which was in possession of the Appellant is not reliable. Such visual identification according to her, does not eliminate possibility of mistaken identity. She added that, later, when cross examined, PWl stated to have had identified the second Appellant by her appearance. The testimony of PWZ was also similar to ~hat of PWL In the totality of this, it was her observation that, visual identification made by PWl and PW2 have not met the criteria on visual identification stated i11 the, land mark case of Waziri Aman Vs. R . (1980) TLR 250. There is no any description made and i.t is :on those premises she . thought to support the appeal. The two Appellants did npt rejoin anything on hearing the position of the Respondent Republic. In the instant appeal, as demonstrated above, the basis of conv'iction of the . . two Appellants were in two fold, the evid.ence on visual: identification and the doctrine of recent possession. In the latter,. at page 6 of the judgment, the learned trial Magistrate made the following observation:- "J have also taken into consideration the evid~nce of PWB to· the effect that the 1st accused was found with two mobile pho~es stolen on the material da_te and time hardly six{6) days after disapµearance from the complainant. Be that as it may six .(6) days are accepted as recen_t to bring the 1st accused within the doctrine of recent possession in mobile ph~ne theft." Regarding evidence of visual identification as the basis of conviction, it was observed by the Learned trial Magistrate as follows:- "Regarding the identification at- the scene, indeed the circumstances in respect of the l_ st and 3 rd accused is not in dispute. There is nothing to suggest that the complainant had any reasons to lie against the 1st and 3 rd accused." The question is whether there is such evidence that the Appellant were properly identified and found in possession of any such stolen properties. As submitted by the learned State Attorney, PWl and PW2 are key witnesses regarding visual identification. . . However, I do not see it happening . to be aided by torch light shorn by the Appellant to identify the same Appellant. PW2 on his part have given another aider of'identification, that is electricity. At page 10 of the proceedings, it is reordered as fa.Hows:- "I know Nassoro. because we live together in the sanie village. On that night there was an electricity light I used to identify Nassoro. As seen above in the testimony of PW1 and PW2, there are the following observation; One is on different accounts on aiders of identification. PW2 started is torch light whereas PW2 sa1d electricity iight is what aided him. However, non of them mentioned the aider of the other. Two, PW2 did not mention at all to have seen the second Appellant holding a torch. Three, PW2 testified to have known the Appellant.before whereas PWl is silent on this. This evidence cannot be relied much as there are no descriptions of identify made by PWl and PW2. Such inconsistencies -and contradictions of their testimony have not been resolved by the learned trial Magistrate as required. I therefore agre~ with the Appellants and the observation of the learned State Attorney that, the Appellants were not identified. On the doctrine of recent possession, exhibit P3 are mobile phones tendered in evide1i.ce. It is alleged by the prosecution witnesses that, the Appellant was found in possession of such mobile phones. This evidence suffers two things:- One, that PWl has not identified that mobile phone by a special mark so as to differentiate it . from amongst similar articles of that nature. Two, that, what was alleged to have been stolen is not the same mobile phone tendered in Court. PWl said to have her Huawei mobile phone stolen whereas what got in evidence as real evidence was Sumsung mobile phone. Therefore, as the stolen properties were not identified and that what is alleged to be in hands of the Appellant was not stolen, the doctrine of recent possession was misplaced in application by the learned trial Magistrate. .. Having made that observ3ti on, : ! : fTd that th i.s app7"! has merits and is accordmgly allowed. Appellants be re1eased from pnson forthwith unless lawful . . . ~ .held. 1 ordered accordingly. I. I • Judge .. . . 15/0512019 . . Dated at MWANZA this 15 th day of May, 20} 9. ~ G.J. Mdemu ' Judge 15/051/2019 5