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© THE JUDICIARY OFTANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OFTANZANIA AT KIGOMA (CORAM: HON. AUGUSTINE RWIZILE) DC. CRIMINAL APPEAL NO. 000009591 OF 2024 HARUNA S/O YUSUPH COMPLAINANT/ APPELLANT/ APPLICANT/ PLAINTIFF VERSUS REPUBLIC RESPONDENT/ DEFENDANT JUDGMENT Fly Notes Facts Ratio Decidendi 8th of July 2024 Hon. RWIZILE.: This appeal originates from criminal case No. 142 of 2023 of Kibondo District Court. It was alleged at the trial that on the night of the 21st day of June 2023, the appellant broke and entered into the house of Godfrey Joseph for the purpose of stealing therein. It was further stated that having broken into the same accommodation, he managed to steal therefrom multiple articles, worth TZS 1,4000,000.00. He was identified, pursued but could not be caught. Upon his arrest a day after, two counts were preferred to wit burglary contrary to section 294(1 )(2) and stealing contrary to sections 258(1) and 265 of the penal code [CAP 16 R.E. 2022]. The trial court was impressed by the prosecution case. The appellant was found guilty, convicted as charged and sentenced to a current sentence of five years in prison on the I st count and 2 years in the 2nd. This, however, did not please him. He has come to this court protesting his innocence. The appellant has advanced a litany of grounds, ten of them. But upon going through the same, they are only hinging on two points; l . That the prosecution did not prove its case beyond reasonable doubt and, Page. I Hon. AUGUSTINE RWIZILE . . 2. That the conviction solely based on the weakness of the defence case. Before this court, the appellant was not represented. On the other side, Ms. Edna Makala learned State Attorney represented the respondent. Given a chance to present his case, the appellant had nothing to argue, he only pleaded, his appeal be allowed. Ms Makala, on her part, did not support conviction and sentence. When asked to comment, she was plain that the offence was committed at night and the prosecution did not prove that the prosecution witnesses identified the appellant. She argued therefore that, there was no clear evidence to support unmistaken visual identification to support the hypothesis in the famous case of Waziri Amani vs The Republic, [1980] TLR 250. That is to say, no prosecution witness stated, the amount of light present, its intensity, the amount of time spent in observing the appellant and the distance they were positioned to properly identify him. My observation on the evidence at the trial shows, the prosecution called 4 witnesses. Pw4 was an investigator of the case, who materially got information from Pw3, owner of the premises that was invaded. Pw3, did not identify the appellant. He got information from Pwl and Pw2, children aged, 7 and 12 years respectively. They said, at night, when sleeping, the appellant having broken into their house, by using a touch, they identified him and informed Pw3 about the appellant. They said, they used to see him pass by their home. Having pondered the evidence by the prosecution at the trial, it is clear to me, that the learned state attorney is right. This appeal is supportable. It is true, the trial court relied on visual identification to convict the appellant. In Waziri Amani vs R, (supra) as submitted by the learned state attorney, key issues on visual identification that may lead to a conviction were spelt out, to include but not limited to; the amount of light, time spent in observing the suspect and the distance from the suspect to the identifying witnesses. I think, in Waziri Amani vs R, (supra), the court stated some of the things that may at least assist the court to form an opinion that the suspect was properly identified. But still, that might not happen in each case. Each case, therefore, must be decided on its own facts. Things that may, in my view, add-up to those stated in Waziri Arnani, may include naming of the suspect at the earliest which was done in this case, but as well, that there is discovery of stolen goods. The evidence is not clear as to whether, Pwl and Pw2 told their father, Pw3 in that material night the name of the appellant. Pw3 simply said, his child told him that it is the appellant who did it. Pw3 also said, the identification parade was conducted at the police in his presence but did not say anything more about it. Pw4 who investigated the case, did not say anything about the parade done at the police as Pw3 mtimated. He testified to have investigated the case and drew the sketch map of the crime scene and that the door was broken. He did not say anything about the amount of light as Pw3, who said, at his home there are two sport lights even though he did not say, he identified the suspect. In the case of Robert Faida @ Samora vs The Republic, (CAT), Criminal Appeal No. 276 of 2016 on pages 12-13, the Court expounded what was stated in Waziri Aman's case in that, the court has to considered; I. How long did the witness have the accused under his/her observation? 2. What was the estimated distance between the witness and the accused - proximity. Page. 2 Hon. AUGUSTINE RWIZILE 3. If the incident occurred at night, what kind ofsource of light and its intensity enabled the witness to identify the accused. 4. Did the witness know the accused before the incident and for how long? 5. In the course of observation of the accused by the witness, was there any obstruction experienced by the witness. Accordingly, non-of the above was done. It is indeed, correct that the charge was not proved beyond reasonable doubt. The first ground of appeal is merited. It disposes off the appeal. I have no need therefore to deal with the second ground of appeal. In the end, this appeal is allowed. I order immediate release of the appellant, Haruna Yusuph from the prison unless held for some other lawful causes. Lastly, although by passing, when the trial court was passing a sentence on the first count of burglary, it was stated that the maximum sentence for that offence is 14 years imprisonment and proceeded to impose a sentence of seven years. With respect that is not correct. Section 294 of penal code creates two offences. One is house breaking. It is house breaking if committed during the daytime. And it is burglary when the offence/breaking into is done at night, in terms of 294(2) and the sentence is 20 years in the maximum. Dated at KIGOMA ZONE this 8th of July 2024. AUGUSTINE RWIZILE JUDGE OF THE HIGH COURT Page. 3 Hon. AUGUSTINE RWIZILE