maganga anthony vs republic 2022 tzhc 15279 15 december 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ATTABORA DC CRIMINAL APPEAL NO. 6 OF 2022 (Originating from Nzega District Court in Criminal Case No. 54/2021) MAGANGA ANTHONY------------------------- - --------------APPELLANT VERSUS THE REPUBLIC--------------------------------------------- ------ RESPONDENT JUDGMENT Date: 04/11/2022 & 15/12/2022 BAHATI SALEMA.J.: The above-named appellant Maganga s/o Anthony was arraigned before Nzega District court for the offences of Armed Robbery c/s 287A of the Penal Code Cap 16 [R.E 2022] and Unnatural Offence c/s 154(l)(a) of the Penal Code Cap 16 [R.E 2022]. The evidence adduced during the trial showed that on 05/06/2021 at 3:00 hours Magreth John Runga was invaded by bandits in her home at Ipuli hamlet within Ndala Ward, the said bandits managed to enter her house by pushing the door inside. On that fateful night, Magreth John managed to identify the appellant who had a knife and a torch. It was her further evidence that she identified the appellant because he was the One who ordered her to lay on the bed and the other bandit was not identified. i From the scene of the crime, the said bandits took away a solar panel worth Tshs 36,000/= a bucket of peanuts worth Tshs 7,000/= and cash money Tshs 1,000/-. The victim immediately informed her neighbors who followed the footsteps that led them to the appellant's house. It was further stated that at the scene of the crime Magreth John Runga was sodomized by the appellant the act which was witnessed by her young child one Jeremiah Michael(12) who identified Anthony Maganga doing the bad act of buggery to her mother. Based on those facts, the appellant was convicted and sentenced to serve a custodial sentence of thirty years in jail for each count, the sentence which was set to run concurrently. Aggrieved by both conviction and sentence, he appealed to this Court listing three grounds of appeal namely: - 1. That the prosecution case was not proved against the appellant beyond reasonable doubt as required by the law. 2. That, the learned trial Magistrate erred in fact and law to find and hold that the appellant was positively identified at the scene of the crime by PW1 and PW2 without regard to the following facts:- (a) Both PW1 and PW2 did not describe the brightness of the torch light. 2 (b) Both witnesses did not describe how long they had the appellant under observation. (c) PWl & PW2 did not describe the appellant in terms of attire and/or appearance. 3. That the learned trial magistrate erred in fact and law for failure to consider the defence of the appellant, especially the conduct of the appellant immediately after the incident of following through in tracing the suspect which conduct is synonymous with the conduct of an innocent person. When the appeal was called up for hearing, Ms. Alice Thomas learned State Attorney appeared for the Republic while the appellant appeared in person unrepresented. Opposing the appeal Ms. Alice submitted only on the first ground to show how the prosecution proved its case beyond a reasonable doubt. She submitted that the appellant was identified by the victim when he entered the room because the victim had a torch that the appellant forced her to switch off. She added that the victim managed to see the appellant holding a knife and she managed to identify him because she knew him and his parents even before the event. It was Ms. Alice's further submission that at the scene the appellant wanted to rape the victim after he missed money but the victim told him that she was on her menstrual days instead the appellant opted to sodomize her. It was also submitted that after 3 completing the act the appellant took a solar panel, peanuts, and TZSl,000/= and went away. On his part the appellant stated how he was apprehended by Sungusungu at his homeplace, the Sungusungu took him to a nearby village to compare his feet to the alleged bandit's footprints but did not match. I have painstakingly read the record of the case and the submissions made by the appellant and the respondent, the question for determination is whether this appeal has merit. Starting with the first ground of appeal, PW1 stated that on a fateful night she managed to identify the appellant under the aid of a torch and after the incident, she immediately informed her neighbor one Mwana Abdallah that she had been invaded by Maganga. Mwajuma's adult son went to the wedding ceremony to inform people(sungusungu) and when they came, the victim narrated the story that she was invaded and raped by Maganga. It is PWl'sevidence that Sungusungu followed footprints that led them to the appellant's place with is about 38 minutes walking distance. The question of doubt that emerges from the story above is why the Sungusungu decided to follow footprints while the victim had already told them the identity of the person who committed the crime. Also, the evidence of PW1 contradicts the evidence adduced by PW3 one Shigella Mabula Shija who identified himself as a 4 Sungusungu Commander, in his testimony nowhere he stated that they followed footprints that led them to the appellant's place. As to the third ground of appeal, that the trial magistrate failed to consider the defence of the appellant, On page 33 of the trial court's typed proceedings the appellant stated that, I quote in verbatim: - "I. was ordered to remove my shirt and started being assaulted, forced to admit the offence which I did not know. I was taken for swimming in the dirty water, accused of being a thief some of the sungusungu people seven in member(sic) grouped themselves at the next place where I was taken for interrogation and beatings" He continued to state that: - "Others stated that I was wasting their time as thieves are becoming trouble in their place others started preparing firewood and put over my legs and lightening them with grasses. I was afraid of being killed there is where I was forced to admit what they wanted." If you read the above two quotations in line with the evidence of PW4 one Agness Chiro Rwiga who is a Hamlet chairman of I puli Hamlet, at page 20 of the trial Court's typed proceedings she stated that, I quote: - 5 "Then I heard the youths from Isakala Village apprehended the said Maganga Anthony. They went under the tree where we appointed to conduct the sungusungu meetings. They took that Maganga at the swam for swimming as a punishment for admitting the crime" PW4's evidence reveals that, after he was arrested the appellant received heavy punishment from Sungusungu which is why he decided to admit the allegations to save his life, had the trial magistrate ever considered the appellants defence he could have come to a different decision rather than convicting him on a confession that was induced by torture as it is evident that, the appellants confession was obtained after sustaining heavy punishment from Sungusungu. Back to the second ground of appeal, the appellant complains that he was not identified at the scene of the Crime. In the case of Waziri Amani vs R [1980] T.L.R 280 it was stated that:- "The first point we wish to make is an elementary one and this is that evidence of visual identification, as Courts in East Africa and England have 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 6 Court is fully satisfied that the evidence before it is absolutely watertight" This Court has carefully gone through the trial court's record as alluded by PW1 and PW2 on how the identification of the appellant has not proved in line with the principles highlighted herein above. It is in the evidence of both PW1 and PW2 that they managed to identify the appellant through the torch light but none of the witnesses ever stated the intensity of the torchlight during that particular time and for how long the appellant stayed in their observation. Lacking the two, I am inclined to hold that the evidence of visual identification was wrongly relied on by the trial court. Having said this, and for the reasons set above, I allow the appeal, quash the conviction and sentence meted against the appellant. I further order that the appellant be released from prison unless lawfully held for other reasons. Order accordingly. A. BAHATI SALEMA JUDGE 15/12/2022 7 Date: 15/12/2022 Coram: Hon. G. P. Ngaeje, Ag DR Appellant: Present Respondent: Tunosye John Luketa, State Attorney B/C: Gracce Mkemwa, RMA Ms. Tunosye: The matter comes for judgment. We are ready for that. Appellant: I am also ready. Court: Judgment delivered in presence of the appellant and Ms. Tunosye State Attorney for the respondent. G. P. NGAEJE AG. DEPUTY REGISTRAR 15/12/2022 Court: Right of appeal fully explained. G. P. NGAEJE AG. DEPUTY REGISTRAR 15/12/2022 8