20190320 TZHC Mwanza

IN THE HIGH COURT Of TANZANIA IN THE DISTRICT REGISTRY Ai MWANZA I . . HIGH COURT CRIMINAL I APPEAL NO. 97 OF 2018 I , (Original Criminal Case No. 348 of 2016 of the District Court of Bunda at Bunda) i . . I . ANTHONY NYAHURYA ......... ·•· .................................... APPELLANT I • . . VERSUS TH"E REPULIC ....................... l.......·........ ~ ................ RESPONDENT JUDGMENT 23/01 & 20/02/2019 RUMANYIKA, J.: It is against the 27/02/2018' conviction and a custodial sentence of . thirty (30) years for the charges of Armed Robbery Contrary to Section . 287A of the Penal Code Cap.. 16 R.E. 2002. The particulars of offence read that Anthony Nahurya did on 21/10/2016 at about 04:00hrs at Nyamakokoto area, Bunda district• steal cash Tshs. 233,500/= the property . . I . of Mussa Joseph and immediately be.fore, he used a bush knife/panga against the latter in order to obtai1 the said property. The seven (7) groun~s of aJpeal may boil down to three (3) points mainly:- . ' 1. the trial magistrate erro.neou$1y not'holding that evidence of PWl and PW2 was weak ahd needed corroboration. I ,I . 1 l ) 2. the trial magistrate ignorecil defence evidence. 3. the trial magistrate not holping that the appellant was not properly identified~ i The appellant appeared in person. And, for obvious reasons he submitted nothing material. Ms; Li!ian Meli learned state attorney readily supported the appeal and in a nutshell submitted that: ..1 One; that the appellant's defence case was just ignored. I Looking at the impugned judgmebt. · Two; the appellant was hot properly identified ( case of Waziri ; Amani Vs. Rep. (1980) TLR 250). Source of light for instance was not clearly established, moon light dr torch. That the 1st two PWs therefore were improperly believed. Even having not described the appellant (case of Rymond Francis Vs. Rep. (1994) TLR 100 & 104 (CA) unreported. . ' ' ; . Three; it wasn't established; to whom, if ·at all was, at the earliest the appellant been named. Four; there was not proof other than plain words of PW4 that. the ! . • appellant's photograph had just b~en picked from the scene. Leave alone . the material contradiction that following the 21/10/2016 identification ; parade mounted on 17/11/2016,; and the appellant's wallet/photograph ,. was so obtained on 22/11/2016. 2 i i I J I PW1 Doris Robert stated that aslwas, at the material time in bed with husband (PW2), three people broke'. into and or stormed in. That the l I appellant held her hand tight say 1~m away and raped her in a semi- 1 . finished house. That some moon Hght enabled her. identify the .appellant. I That forcefully though, she. tongue kissed him and learnt about appellant's I gap in front dentition. And later identified him on a parade subsequently mounted by police. PW2 Musa Joseph (as per PW1). But additionally, he stated that now. j _armed with sticks and panga, appellf nt and others assaulted and robbed him a total of cash Shs. 230,000/=I. That he snatched them a torch and i J • . • casted it on them and therefore •identified I them just before he lost conscious. That he was admitted in hbspital ' for five (5) days injured in the . head. That as was at the policel station Bunda, but now giving his j statement on 17/11/2016 at noon, he saw and identified the appellant's . I passport size photograph affixed on the notice board. Then he picked the I . appellant out of 10 participants out of the parade mounted by police. I I PW3 Nkome Magenibe, the lo;cal chair stated t0at following some public alarms~ and now at the scen·e~ he found PW2 severally injured and I unconscious. That the r~portedly mis~ing PW1 was traced and narrated the story. That the latter led them where1.she was ~aped. ·whereby one picked . I . . I . the appellant's wallet .and photograpb (Exhibit "Pl"). That PW3 ·recognized I the picture being that of the appellant (his street resident). . - I . . PW4 Insp .. Simon Nansebwa I stated that he was the one who . . .I . supervised the material .identificatior;1 parade on 17/11/2016 at 12:30p.rn -I - l3 II ~,, 1 whereby PWl accordingly identified the appellant ( copy of the register- Exhibit "P2"). PWS D. 8973 D/Sgt. Warobe stated that he interrogated and recorded the appellant's cautioned statement (Exhibit "P3").That is all. The appellant in his defence denied the charges complet~ly. That on 14/11/2016, the local ward executive officer just invited him to identify the wallet and photograph which actually two people had robbed him. He had ,accordingly reported to police but got no assistance. That is it. The issue is whether the appellant was properly identified. The · ·answer is for two reasons in the negative:- 1. sort of admitted by Ms. Lilian Meli learneq state attorney, it wasn't clear if at all pw2 identified him properly. PW2 may have snatched them a torch, he casted it. at them and identified the appellant. But no torch was produced in court. Leave alone its capacity/light intensity. It is trite law that evidence of visual identification is the weakest kind ever and court cannot rely on it. Unless possibilities o_f mistaken identity were all ruled· out and conviction was absolutely water tight. I would therefore n~t convict th~ appellant only based on such evidence. It is very_ unfortunate that the trial court. found pw1 and pw2 credible and reliable. 2. the wallet and photograph may have been that of the appellant yes! But his defe_nce on the circumstances .leading· to its -recovery was · fr~nkly speaking ignored by the trial court. Leave .alone chain of 4 ) custody of the exhibit. If at alJ pw~ had picked it from the scene of rape. Suffice the three points to dispose of the app~al. Appeal is, in the. upshot allowed. Conviction ~nd sentence are ' . . quashed and sef aside respe·ctively. Unless was otherwise legally held, appellant be released from prison immediately. Ordered accordingly. Right of appeal explained. Delivered und~r my hand and seal of the court in chambers this 20 th day of February, 2019 in the presence of the appellant and in the absence of the respondent. M.A. MOYO DEPUTY REGISTRAR 20/03/2019 • I ;