20190925 TZHC Mwanza

, .... IJI IN THE HIGH COURT OF TANZANIA IN HE DISTRICT REGISTRY AT MWANZA HC. CRIMINAL APPEAL NO. 204 OF 2018 ( Originating from Criminal Case No. 103 of 2017 of the District Court of Magu District at Magu) JOSEPH LUCAS@ KOMANGILIA .................... ,~········APPELLANT VERSUS THE REPUBLIC ..................................... · NT JUDGE· ... 14.8 & 25.9.2019 .., ~', '·';.:.~'.~ ·;_ . MADEHA, J; .. ·:,: ~"'*f\ . . Before the District ~ o f ~agu [n M~nza, the appellant Joseph ,:\ ~-~:- ~, <1~~ ~;'.) Lukas @ Koma.:~il~ ft.1~ ~~a,e y Joseph Madeleke who was acquitted by ~ r ~ ~ J a n t was charged. with and convicted of the ~ff~~~c,:~~g~O,Pb~ry Contrary to section 287 (A) and 287 (C) Jj~~·&:th. e P~,:-~J:.o~p '-.'°'" 16 of:the Revised . Edition, 2002 (hereinafter . .. >· '!,'~ V ··J~ I ' referre \ t ~ n a l Code) He was sentenced to serve the mandatory of a mini~fE(rlfce of the 30 years fot the first count. for the second count the· appellant was· charged with the offence ·of grievous harm C/S 225 of the Penal Code Cap 16 (R. E 2002). I I. I '1 I I At the end of the trial the first accused Joseph Madeleke was I acquitted in respect of all counts. ,However, the conviction was entered against the appellant who is still at large with gang armed robbery and he I was sentenced to serve thirty years in prison. As regards to the count of Grievous harm there is no explanation if the first a~~llant was convicted . or not. The appellant being dissati~ed by t~t1di~~ t~ Court has come to this Court on appe~I. 1 ' . ~. \,. . '-' ·, 'V ;!7~ \~;· ·-,,~-, . ~ '·" ~~'6 01 :00 hours she heard the_ . tx3r b~~i~i:heifetond accused entered in the room, who be~et_nd as~eci,,h,~ his father, and there was ·~ X ~~__..,,., another baridit who oi:qke~ d~or ot"~lile ~oom of .her parents, sh.e was took f~~' :investigator who draw the sketch map of the· scene. PWS":a clini<2al1 officer tendered a PF3 of the PW2 who stated that he ~~- . ~ . . . feels pain but there are no wounds.I In defe.nce case the appellant denied . all the evidences alleged by the prosecution side. I The memorandum of appeal: filed by_ the appellant raised ten substantive grounds ·of complaints. 'I hereby consolidate them into two. !2 , , One is on the question of the visual identification and the identification of the appellant. Two, the evidence of the prosecution side is not strong to ground the conviction. At the hearing of appeal before me on 14.8.2019, the appellant appeared in person, unrepresented. Ms. Rehem~_ buya the Learned Senior State Attorney represented the resp~nd~,~~ .A The senior state Attorney ~ a t ~ ~~._Dee of the identification was insufficient t~~~t _the prosecution ~'S'1~ evidence was not enough<f_.xi:2sustarn~~~-cTh10_·)1ietion of the appellant. The ,:-r republic/ responden~~ ·~,t~e ground raised that there is no clear i d , ~ ~ i o ~ ~ ' th~y did not state the source of light used to iGl~ntify }1e appell:9nt. . · ,~J_J~i~i~ilit~,, ~ . ·;;~\_ .-~--~;.~> . ~\y ,-,~~-~~ With t~k~ foreg"0ing fesponse of the senior state attorney the ' ~\' appella 't.had no~iilg in rejoinder. . I ~- ,V AI:~ '2_, ~;; - • . . In or er~for the prosecution side to prove the offence of · gang armed robbery that have been taken to the appellant the ·prosecution may prove, first robbery have been tak.en place, secondly is that the items · should be tak~n from the victim during· the course of. a robbery, third ' 3 !. property should be taken from against the will or force or threat or force by violence (by using offensive weapons), which involves assault and theft. If the evidences show that the force or coercion was not used in committing . . . crime, a charge of stealing can be brought about instead of armed robbery. The offence of gang armed robbery h~s to be comffiitted by two or more persons to establish the common intent.ion. enough to properly identify the accused ·as well as the distance between the PWl and PW2 was not enough to correctly view each other. On the issue of· the identification of the appellant the Learned State Attorney 4 ) pointed out that the identification was not clear and she supported the appeal. Further still, there was no identification parade, -which was conducted which could have corroborated the dock identification of the appellants that was made by the PW2. It cannot be gainsaid that v~tification is of the ~e-akest kind and ~ourt is ~rder~d t~. en~trat befy~ing _a conv1ct1on on the basis of visual 1d~1flca csn 1aent1f1cat1on ,s watertight In the celebrated ca ~!ll!lt.... ~~:·~~a~• v~. ;:O) TLR 250 . . ~ r:~.- t·..t;.._r held: ··..::-.> A number of factors were enumerated in the above case which are to be taken into account by a cqurt in order to ~atisfy itself on whether or .not . . . . such evjdence is waterti"ght. These factors include: the time the ·witness 5 ' I i• I. ) had the accused under observation, the distance at which he observed him, the conditions in which the observation occurred, for instance, whether it was day or night- time, \fl!hether there was good or poor lightinQ . . at the scene; and further whether the witness knew or had seen the accused before. There is no dearth of authorities restatin~~ri_:~~i~wn iii Waziri Amani on visual identification,;,~h,~~Yf?n'cis vs ~ of 1994, Issa Mgare@ s '~-~~~\) ... v,-.~~~.€.·~.-.r~. ~.m.ira.I Appeal No. 220 Republic (19~4) TLR 100 Jaribu,·A·-~.•.a ir -~ ~ . ·huka"ir->~.,R.·.··cr~.in~l~Ap'peal No. 37 of 2005. ·~~ Said Chally Scania v~'R.., Crim~al ~~~No. 69 of 2005 Kulwa I ·.·N9, 35- of 2005 (all unreported), In Mwakaja_pe v. . . ~-.. ~~P.e.-.a. JaribuAbda~~>· ·' ~-~-~~' . _ \ '".(·•.:,·' 1 ~'\, .-:::---fn,m.·.a.·. t:tet:S ofidey;tification it is not enough merely to :_'l<??k at'~Jr factors favouring accurate - identification. E'!itltilly.Jni)ortant ~ is the credibility of. witnesses. The . conditions of identification might appear ideal but that is no guarantee against untruthful evidence.... ✓, 6 ) In the present case credibility of the witnesses was highly doubted. There were several contradictions in the testimonies of the witnesses. For example, while the key witness (PWl) said that the bandits . . entered into the house on 01:00 hours she was at home sleeping, she saw them by using torch light, another witness (PW2) testified mat she ·identified the Coming to the evidences of Dock ide~tification, as the prosecution witness identified the appellant on the dock in Court. In the case of Rashid Ally a~d Other. V R Criminal Appeal No. 40. Of 2001 (CAT) Tanga (Unreported) concerning Dock identificatiqn 7 . ' "PW 1 did not know the second appellant before/ he could only describe the man who was in front of others as huge/ but it was conceded that the 2nd appellant was not the only bulky person in Tanga. The victim [PW 11 wife/ [PW a.t Bomba hospital. When she saw ,, court✓ she answered to the descfljpft ~,~,.,,, 't,;;:t~l, is termed as dock identi · ptable in . '. ~!!!\'.··:, \ law. The fo//owin : -~tJ/!ltdentifying ... , general. !~}~ "O 1. Time The above considerati9ns suffice to cfispose of this appeal and there • is no need for me to engage on the other complaints raised in the . memorand_um of appeal·. 8 . ,. In the result, I find the appeal ot Joseph Lukas Kamangila to have been filed with good cause. I accordingly allow it. Conviction entered against the appellant is quashed. and sentences imposed on them are set. aside. The appellant is to be set at liberty forthwith unless otherwise held in connection to lawful cause. Order accordingly. 9