20190306 TZHC Mwanza

( HIGH COURT OF TANZANIA . ' (DISTRICT REGIST~Y) AT MWANZA HC. CRIMINAL APPEAL NO. 224 OF 2018 . (From the Decision of the District Court of Misungwi at Misungwi Criminal Case No. 48 of 2018) . ~ - · . -~ NHANGALA S/0 MADUKA .......... ;I .................6-. ........ ~ ..... ~EtLANT . . . . .VE~SUS : ~ V THE REPUBLIC ..............................'··~·····~······ ........ RESPONDENT ·~ JU~ENT . . - ~ Last Order: 27 .02.2019 Judgment Dat~32!lJ9 . 1 NHA 6ALA S~MA'QJ:JKAMisungwi and charged with an offence of causi~~\Qrievo~ harm contrary to Section 225 of the Penal Code Cap 1 6 ~ ~ Edition 2002. , ' The brief background to this appeal is that it is alleged by -the prosecution on 27 th day of February, 2018 around 02:00 hrs at Mondo Village within Misungwi District in Mwanza Region, the appellant harm to one Martine S/0 Barnaba by assaulting him with a panga l ( on his head, left hand and on his two shoulders whereas, he caused the victim suffering grievous harm. The appellant was brought before the District Court of Misungwi, and he pleaded not guilty to the charge of grievous harm. Consequently, the appellant was convicted and~ntenced· as he . stands now. Dissatisfied and aggrieved b¾ both ~~ and sentence he appealed to this courL · ~ _ ~ . ~ \\} The main contention of the t-P~t~e{\e (5) grounds of appeal the same is boiled dow~d'Jhree-{~unds of appeal as follows:- first, that the tri~e~rate ~~ to convict the appellant based on the prOsecutionCak,e~~e'S>hile the co-aCcused was acquitted from the~ml~vi~~' t~nd, !hat visual identification was not watertight. T~d t~---P-F--3{as not proper tendered in court and failure t ~')th~~~~efore the court. pe~i_n~ppeal, the appellant appeared in person and ~vocat)➔ for himself while Ms. Flyeregete, learned State Attorn~~pt£<c1red -,.___....- for the Republic. The appellant submitted that he has decided to appeal . because he is innocent. He added. that he does not know why he was convicted since they were charged two of them, his fellow was acquitted. 2 ( Ms. Fyeregete, learned State Attorney supported the appeal hinged on the following reason:- That the appellant was convicted based on visual identification as per PWl, PW4 and PW5 evidence, she added that the appellant was charged for grievous harm, the incident occyrred around 0:00 hrs whereas it was not easy to identify the appel~~\by using solar light. P~3 testified that he left the scene ~~~r he hea'.dno1ces, and he saw th'.ee peoplf entl\~~ose. They decided to follow the footprints, ~.~~.~~\\ere\!t. able t_o catch anyone. On the next day, they f~~toolpnnts which lead them to the appellant's house~s.)~~~ontinued to submit that the w'.tnesses did n~~,0z;l'\ntified th_e appellants by his name; instead, they s01d tltit'-t~y ~ the footprints. But thePW3 was required to. e x ~ ~ t e d the appellant. In support to h~r ~rgume"ere@~ c1te'd the case of Magabe Gokoya v R Cnm1nal A p p v , . ~ ~ of 2010 Court of Appeal at Mwanza (unre~~ei~nclol'led by stating that failure to name the appl{ant at a~a~ stage was not watertight. Thus, she prayed for this cl~nt to allol the appeal. I have· made an assessment to the evidence on record and paid attention to the analysis of e·vidence as· submitted by the 0 learned State Attorney in determining as to Whether the evidence 3 , .. ( adduced by the prosecution was strong enough to ground a . conviction for the offence charged." Starting with the ground of appeal that, the visual identification was not well elaborated, it is in the record that the prosecution case lined up four witnesses. PWl testified that he was~~s home, and two culprits invaded him, he· named one Kt~aA_gala Maduka and Ndeji Latende, and he said he knew tHe'm,B~ca~~? look familiar to him. But he did not explain t~nten\~"s~ight at the scene of crime taking to account~h-ai i~-~2:lil0_hrs. PW3 testified . that he heard noises ~~~"'__ .Vscene, they were and heael'Ead '0~@"'6r:1rr:!:~ :l told Martin was invaded by.-cu~~n~~ injured. He did not saw the accused instead th/~me~~~ong as the footprints are heading towards t~ aJpella(t'h'ocJse, therefore, he is the one who has committed the c ~ ~ _ g ~ ~ o u t by the State Attorney that visual idenpfjcatio'n~~ak and unreliable. Therefore, the appellant was \i~t prope~~ identified at the scene of the crime. The issue of prop~~0tion was reiterated by the Court of Appeal for Eastern Africa way back in 1942 in the case of Mohamed Alhui V. Rex (1) it W<?S held that:_ "In every case in which there is a question as to the identity of the accused, the fact of their having been a description given and the terms of that description given are matf-ers of the highest 4 ( importance of which evidence ought always to be given; first of all, of cour.se, by the persons who gove the description ond purport to identify the accused, ond then by the person or person_s to whom the description wos given" · The holding of the court, was duly adopted by the Court of Appeal of Tanzania in various decisions including ,~ase of Waziri Aman v R (1980 TLR 250 and Said Chall Sca~ia V.R Cf:i~ral ARpeal No 69 of 2005 (unreported) at page 7, where~ -~¥/rated •.. ~~l.il•,'"'?._ < • What kind of light was on b'rtt,e ;G;~~-~ftn~ crime at the time; • What was the in~enst~ thJ-~8t; "0 . • What was the dist~{ce ~E,le~fB'e source of light and where the witness wds~ ... 1:•·,-'f I!· In order ~ v i c t ~p accused perso_n _based on the identification . ~r;;,~~l~f the crime, all the above issues must ·,fM~~~"affirmative. In respect to this appeal, PWl said le identffi~d ~ appellant at the scene of the crime witho €:lescri,g the intensity of light. The circumstances, which lea hto the arrest of the appellant, leave no iota of doubt that the Appellant was not properly identified. Therefore, the issue of virtual identification was not proper and left doubt. s In conclusion, therefore, after analysis of the evidence on record and the circumstances upon which the charged offence against the appellant was committed, I have found that the case against the Appellant was not made sufficiently enough for the conviction and sentence to stand. I, therefore, quash the conviction ands.et aside the sentence. The appellant should:~be ,, released from ·,, prison unless lawful held for some other reasons_. \,,\.\.\. ( >·-,,, '\ ~\ . -~~ -~~~- It is so ordered. 6