LUTOBEKA JUDGMENT

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM CRIMINAL APPEAL NO. 13001 OF 2024 (Originating from the District Court Temeke at Temeke in Criminal Case No. 1368 of 2022 before Hon. Millanzi- PRM) JAFARI JUMANNE LUTOBEKA………....………….........................APPELLANT VERSUS REPUBLIC………………….........................................................RESPONDENT JUDGMENT 19th February& 12th March,2025 MWANGA, J. In the District Court of Temeke at Temeke, the appellant, Jafari Jumanne Lutobeka, was charged with stealing contrary to sections 258 (1) and 265 of the penal code Cap. 16 R.E 2019. It was alleged by the prosecution that, on the 21st day of February 2022 at Mbagala Police Station within Temeke District in Dar es Salaam region, the appellant stole a motorcycle with registration Number MC775 DDZ make TVS valued at Tanzania shillings two million four hundred fifty thousand [TZS 2,450,000/=] only the property of one Rehema Festo Nyato. The facts giving rise to the arguments and ultimate conviction of the appellant can be briefly stated as follows: On 21/02/2022 at 00:00 hrs, PW1, a bodaboda rider, was faced by one soldier/appellant alleging that 1 PW1 motorcycle was involved in stealing a handbag of his sister/soldier’s sister. The appellant demanded to take the motorcycle to JWTZ camp, but PW2 suggested they take it to the Mbagala police station. Without being aware of the appellant's ill motive, PW1, PW2, and the appellant went to the Mbagala police station with the said motorcycle. The appellant reported the incident, pretending he was waiting for her sister to bring RB. After some time, PW1 found that his motorcycle was missing at the police station, only to be informed by PW10, the police gateman, that the motorcycle had been taken away by the soldier/appellant. According to PW1, he did not recognize the soldier as he wore a red mask and JWTZ cap. Though it is not explained how the appellant was arrested, the record suggests that PW8 conducted an identification parade, during which PW2 managed to identify the appellant. During the trial, the appellant pleaded not guilty to the charge he stood trial on. The prosecution had 10 witnesses and four exhibits while the appellant fended for himself. After a full trial, the trial magistrate was convinced that the prosecution had proved its case beyond reasonable doubt. Consequently, the appellant was convicted and sentenced to serve 4 years imprisonment. 2 Aggrieved with the conviction and sentence, the appellant has preferred the instant appeal equipped with six grounds of appeal going thus; 1. That the learned trial magistrate erred in law and fact in convicting the appellant when the key witness who instituted the case did not testify in court to prove the facts in issue. 2. That the learned trial magistrate erred in law and fact in convicting the appellant when the appellant’s apprehension in connection with the current case was never established beyond all reasonable doubt, as no arresting officer was called to testify in court and explain the reasons for the appellant’s arrest. 3. That the learned trial magistrate erred in law and fact in convicting the appellant when wrongly disregarded and/or rejected the strong defense evidence produced by the appellant, which raised a reasonable doubt in the prosecution case regarding the reasons for his apprehension. 4. That the learned trial magistrate erred in law and fact in convicting the appellant based on unsatisfactory identification/recognition evidence to link him with the case at hand; hence, the identification parade was mounted contrary to 3 the instructions of P.G.O No.232 (2) which governs the procedures and the appellant’s rights before the identification parade is conducted. 5. That the learned trial magistrate erred in law and fact in failing to observe and consider that the prosecution evidence adduced in court was barely a fabrication against the appellant as there was nothing linked him (appellant) with the charged offense. 6. That the learned trial magistrate erred in law and fact in convicting the appellant in a case where the prosecution did not prove its charge against the appellant beyond all reasonable doubts as required by law. Based on the above grounds of appeal, the appellant implores the court to allow the appeal, hence quash the appellant’s conviction, set aside the sentence, and release him from Prison. The hearing took the form of written submission as the appellant was unrepresented while M.s Phoibe Maghiri represented the respondent. In support of the appeal, the appellant submitted his grounds of appeal as raised. Per contra, noting ground four's significance, Ms. Maghiri chose to argue the ground alone, opting to abandon other grounds of appeal. 4 The ground, which I will also determine first, and if need be, I will revert to the remaining grounds. Submitting in respect of the 4th ground, appellant contended that legally, a complete and satisfactory elimination of possibilities of mistaken identity in the evidence of an identification witness entails a proper account of numerous factors as per the court’s land mark case of Waziri Amani Versus The Republic [1980] 250, which includes an appropriate account of the identifying witness of the following factors; one, the source of the light which assisted the witness to identify the suspect; two, the brightness or intensity of the light from the mentioned source; three, the size of the premises illuminated; four, the distance or proximity between the identifying witness and the suspect at the time of the observation; five, the duration or the time frame that was spent by the witness while observing the suspect; and six, whether or not the suspect was familiar to the witness previous to the observation day, and if he was; for how long had the witness known the suspect or how frequent had he been meeting the suspect. He argued that PW1, whose evidence was received contrary to section 198 (1) requirement of the CPA, fatally affected the evidential value, as the same fell short of the threshold conditions of an accurate 5 visual identification. He said PW1 was not credible because he did not directly recognize the soldier as he wore a cap and a reddish barakoa. And there is no point in time that PW1 said that; the soldier removed the JWTZ Cape and a reddish barakoa for him to see his face, He added that PW1 did not state the source and the brightness of light, which might have assisted him in identifying the appellant. He did not mention the distance from him to the appellant and the time he spent observing him before he was to board the motorcycle. He was insistent that there is no point in time PW1 makes any reference not only to any light source but also that there was any light at all. He did not mention any of the factors necessary for accurately identifying the appellant, nor did he state that he knew the appellant before the material time. To him, the conditions for proper identification were not met. Concerning the identification parade in exhibit P4, he said the same could not add any value because, as already shown above, the witness did not see the appellant before or at the crime scene. He believed the witness's credibility was questionable as he alleged to identify a person they had never seen before. Thus, based on the above discussion on visual identification, it was his submission that the appellant was not identified. 6 On the other hand, Ms. Maghiri, as intimated earlier, supported the appeal. It was her submission that the issue of identification, in this case, is based on a witness who saw the appellant for the first time on the date the incident is said to have occurred; thus, an identification parade is of paramount importance under such circumstances. In addition, she said, it is the stance of law that a witness needs to describe a suspect prior to the identification parade. She cited the case of Abdul Farjala and Another VR, Criminal Appeal No. 99 of 2008, where the court stated that the importance of the witness to identify the culprit after having given the suspect’s description prior to the identification parade is to lend assurance to the court that of the witness dock identification of the suspect. She stresses further that, in this appeal, PW10, who allegedly saw the appellant leaving with the said motorcycle, only identified the appellant on the dock, despite it being his first time to see him. No identification parade was conducted on his side to ensure assurance of what was alleged. She went on to submit that, as per the evidence of PW8, PW2 identified the accused in the identification parade. However, PW2 neither stated the same in his testimony nor described the accused prior to the parade. Moreover, when the theft incident occurred, PW2 was 7 not there but PW10; hence, the proper person to connect the appellant was PW10, thus he was the one identification parade had to be done. Ms. Maghiri added that the evidence does not disclose how the appellant was linked to the offense, how they arrested him, and how the police were able to find him, considering that he was not a person known to any of the witnesses and none of the witnesses testified to that effect. Based on that, the issue of identification falls short of the legal criteria and, hence, does not eliminate all mistakes in identification to ensure proper identification of the appellant. She maintained that she supports the appeal. I have scrutinized the lower court record and keenly considered the parties' submissions. The main issue to be determined here is whether the perpetrator of the offense in this appeal was identified, as it is apparent that the appellant's conviction was based on his identification at the crime scene. Indisputably, the test for reliable visual identification evidence is explained in the case of Waziri Amani vs Republic (1980) TLR 250. The same has been revisited and refined by the court in many cases including the case of Musa Mbagwa vs R, Criminal Appeal No. 39 of 2013, Omari Iddi Mbezi and Three Others vs. Republic, Criminal 8 Appeal No 227 of 2009 CAT- unreported, that the witness must make full disclosure of the source of light and its intensity, explanation of the proximity to the culprit and the witness and the time he spent on the encounter, description of the culprit in terms of body build, complexion, size, and attire. Additionally, the witness must mention any peculiar features, which should be repeated at his first report to the police on the crime, who would, in turn, testify to that effect to lend credence to such witness evidence of identification parade and during the trial to test the witness memory. There are a plethora of cases supporting this stance including the case of Kulwa s/o Makwajape & Two Others V. Republic, Criminal Appeal No. 35 of 2005, Saidi Chally Scania V. Republic, Criminal Appeal No. 69 of 2005, and Issa Mgara @ Shuka V. Republic, Criminal Appeal No. 37 of 2005, Demeritus John @ Kajuli & Others vs. Republic, CAT-Criminal Appeal No. 155 of 2013 (all unreported). The Court of Appeal of Tanzania, in the latter case, had this to say: “In a string of decisions, the Court has stated that evidence of visual identification is not only of the weakest kind, but it is also most unreliable, and a Court should not act on it unless all possibilities of mistaken identity are eliminated and it is satisfied that the evidence before it is absolutely water-tight (See, Waziri Amani v. R. (1980) 9 TLR 250; Raymond Francis v. R. (1994) T.L.R. 100; R.V. Eria Sebatwo (1960) EA 174; Igola Iguna and Noni @ Dindai Mabina v. R., Criminal Appeal No. 34 of 2001, (CAT, unreported). Eye witness identification, even when wholly honest, may lead to the conviction of the innocent (R. v. Forbes, (2001) 1 ALL ER 686). It is most essential for the court to examine closely whether or not the conditions of identification are favorable and to exclude all possibilities of mistaken identification.” [Emphasis is added] In the instant appeal, the testimony on which the trial court relied to ground a conviction had all the hallmarks of an unreliable and weak testimony. It is undisputed that the alleged incident occurred at 00:00 pm, as per PW1, he admits to having not identified the appellant as it was the first time he saw him and was wearing a mask and JWTZ cap. As per the evidence of PW8, PW2 identified the appellant in the identification parade. However, PW2 never stated that in his evidence, and he never explained any description that helped him to identify the appellant in the identification parade. That aside, PW2 never noted the source of light, which enabled him to identify the appellant he had seen for the first time. It is also not stated whether, at some point, the appellant removed his mask and cap. 10 The above deficiencies apply to PW10, the guide who claims to have seen the appellant entering and leaving the police station with the stolen motorcycle from the police. He also admits that it was the first time he had seen the appellant and had not interrogated him. On his side, no ID parade was conducted, he did not explain how he managed to identify the culprit, nothing on the intensity of the light was stated in his testimony, nor a distance between the witnesses and the assailants. Moreover, the entire evidence is barren on how the accused was arrested and linked to the present case. All the above questions dent the prosecution case, supporting the appellant’s submission that his conviction was based on a prosecution case that was not proved to the hilt. Thus, there was no evidence that the appellant's conviction could validly be grounded. It is the law that once the court finds evidence tendered by the prosecution is doubtful, such doubts must be resolved in the accused's favor, which course I hereby take and proceed to see that the appellant’s conviction was wrongly arrived at. Having so found, I find no need to address the remaining grounds of appeal as that will remain an academic exercise in which this court is unprepared and has no time to indulge. 11 Ultimately, I allow the appeal, quash and set aside the conviction and sentence, and order that the appellant be immediately released from custody unless he is held on some other lawful grounds. It is so ordered accordingly. H.R. MWANGA JUDGE 12/03/2025 COURT: Judgment delivered at Dar es Salaam this 12th March 2025 in the appellant's presence in person and Ramadhani Kalinga, learned Senior State Attorney for the Respondent. H.R. MWANGA JUDGE 12/03/2025 12