20151116 TZHC Dodoma

IN THE RESIDENT MAGISTRATE COURT OF DODOMA AT DODOMA EXTENDED JURISDICTION PRM.CRIMINAL APPEAL NO. 22 OF 2015 (DC Criminal Appeal No. 71/2013) (Original Criminal Case No. 102 of 2002 of Mpwapwa District Court at Mpwapwa) GABRIEL BANDARI Versus THE REPUBLIC JUDGMENT 10/11/2015 &16/1 1/2015 R.I.RUTTA, PRM.(EXT.JURISDICTION) On 1.10.2012, the appellant one GABRIEL BANDARI was produced before Mpwapwa District Court arraigned of unnatural offence C/s. 154 (1) (a) of the Penal Code Cap. 16. Vol. 1 RE 2002. The Public prosecutor alleged that on 26.9.2012 at about 04.00hrs at Mkanana village within Mpwapwa District in Dodoma Region, the appellant did have carnal knowledge of one ROBSON Sb LANGALIA a boy aged 1 2yrs against the order of nature. At the end of full trial the trial Court Convicted and sentenced the appellant to serve 30 years term in jail. Still protesting his innocence the appellant ledged the instant appeal. The memorandum of appeal contains a number of 6 grounds. Having gone through the said grounds I found that they can be summarized as follows. - That The appellant was not properly identified. - That the evidence of the prosecution side was not corroborated. - That he was convicted basing on the weak defence. The appellant was present when the matter came for hearing. The Republic was fully represented by Ms. Magiri, learned State Attorney. The brief back ground was that on 26/9/2012, according to PW2 at night hours, PW2 was asleep together with others including PW4. That the appellant went calling one Kambwile. That he wanted to buy a dog. Then the appellant went away later on went again. This time sodomised PW2 said that the appellant at first 2 attempted to sodomise one Alden but failed. PW4 and PW2 said that through the influence of the fire wood light (Kijinga cha moto) they saw and identified the appellant. In his argument the appellant said that it was not easy to be identified by the influence of the fire wood light. That even the intensity of fire was not proper. In reply the leaned State Attorney said that PW2 knew the appellant before the incident. That PW4 whom the appellant had attempted to sodomise witnessed PW2 being sodomised by the appellant. That PW2 having been sodomisëd reported the matter to Pw1. In the instant matter it was said and not disputed that PW2 and the appellant knew each other before the incident. The trial court said that PW2 saw and identified the appellant through the influence of fire light. At this issue I wish to be guided by the case of Issa Mgara @ Shuka V.R. Cr. App No. 37 of 2005. (TCA) It was said that even in recognition cases where such evidence may be more reliable than identification of stranger clear evidence on sources of light and its intensity is of paramount importance. This is because as occasionally held even when the witness is puporting to recognize someone 3 whom he knows as was the case here, mistakes in recognition of close relatives and friends are often made. In the instant case the incident occurred at the aged hours of the night. We are told that the source of light was fire wood light. We are not told where it was positioned and what the distance from the scene of Crime was. We all know the fire light. It's intensity and illumination is not so clear. The trial court who had the opportunity to see and assess the witness PW2 and PW4 said that they appeared reliable and worth of saying the truth. However the trial court did not say much on the identification. PW2 and PW4 simply said that they saw the appellant. No one gave the details even about the attire of the appellant. Having gone through the submissions and the proceedings and the judgment of the trial court I am of the settled view that there was no proper identification. That is enough to dispose of the all matter. The conviction is hereby quashed, the sentence set aside. The appellant be released unless held on other good cause. ri I p Appeal allowed. (R. I. RUTTA) PRM.EXTENDED JURISDICTION 16/11/2015 Delivered in the presence of appellant and Ms. Taji State Attorney for the Republic. Right of appeal explained. (R. I. RUTTA) PRM.EXTENDED JURISDICTION 16/11/2015 eby cef that thc LrL