20091005 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA

ATMWANZA CONSOLIDATED CRIMINAL APPEAL N0.194, 195 AND 196 OF 2007 • (Original Criminal Case No. 1113 of 2005 of tfle , , 'l, i · District court of Nyamagana at Nyamagana;·· ·' ·' ., , · .. "' , ·: :; 1 : ( 1 KAOMBW _·· . . . E D ENNIS . . }.. ! ::ik:~l ~.t· . · ·. !ilfi:[JI!:, i 111 H!•Htr j 1 /t.··•t:1!1:,1 11 2. STEPHANO SIM BA JUAMA ... ...... A J?El.; .l'tJTS · i :[ :, ,,: , 1 1 3. SIMBA NASSORO MAKARANGA '' ·: THE REPUBLIC ....................................... ~ RESPONDENT

JUDGMENT 19/8/2009 & 5/10/2009 NYANGARIKA, J. The appellants appeared in District Court of Nyamagana at Nyamagana (hereinafter referred to as the trial court) charged with and convicted of Armed Robbery cf s 287A of the Penal Code as · . . . . . I . . .. amended by Act No. 4 of 2004 as rectified by Govera;a,n,ent Notice 269 . . ·I . . . ·•: .:r _: of 2004 and were sentence to a statutory minimu~. f'..· e·•.tnt:rn•~l ?f_ - ~if~_1:· . • (30) years 1mpnsonmen t. . 1' .I I : I :· ·I ·hi! ':· .-:;: · i ! ··_,fl \ii • 1 1 .. , i,r: l .. : r • ~: . i. ; Dissatisfied with both conviction and sentence, the appellants had now preferred the present appeal to this Court. When the appeal came for hearing, the appellants appeared in · person and . had nothing to say or add apart from what toey have stated in their memorcrn.QLJnJ_Qf c:1ppeal. Miss. Fyeregete Mwamini, learned State Attorney, whcY' appeared for the republic, objected the appeal and Sl:lpported the _:.~ . k./L---·---~-~ /,,. findings of the trial court. lj_ . ~ : ,•-, . a,_;_/ ' I ;,!I ·:l1i1 ! 1> l' ,· 1 :;1i1 I ; ,·1 }I 1 ' :; ) ! • ' ;., l • She said that the main ground in the present appeal centres ~n 1 1 the issue of identification and the dates when ·tme o~ente was): committed .. She therefore summarized all the gro~»~} on Iy one, to w1·t·. ::-.·. 1i; 1 .,, ~ :~~p~;i\ t : , I : i .• 1 .- , : .·r • • ·; '~l! \!i 1; , 1 11

·1 , , ; •I ., "The trial court erred both in law and fact'. by holding that the offence facing the appellants was proved beyond reasonable doubt" The learned State Attorney submitted that the appellants were properly and correctly identified by the victim by the help of light from electric, torch and lamp during the night when the offence was committed. She said that the third appellant was easily identified by Pwl. .. I I I I because he was her neighbour. Further, she said thpt Pwl identifiecj:: the secon.d appellant as ~he was familiar with .him at ~he u~e~ :~1~H1ii him passing in the street. · . !4 i r 1 • : -1 ;!: The State Attorney submitted further that the second appellant was also clearly identified by Pw3 when he took her bag and started searching money inside the bag containing clothes. She said that Pw2 and Pw4 identified the 1st appellant by use of light from the lamp and "torch as he was their neighbour. FtJrther, he "i'• - •·· submitted that the second appellant was also identified by Pw2 ,,//. during identifitation parade. ~ - ; - v- i : i I,; . .. ,: ,I ~ · ·I : ii _IJtl 'Ii! ·1 '•I ... I ' : ; 'I :jil . : .: ·::.; ! 2 The learned State Attorney referred me to t~e ~ase 1 qf vya~i_ri , Amani, v. R [1980] TLR 252 (CA) to support h~1· ~ar$u~_ci~t. '1' ,,I ; i;{i~/ir di •I) : "'I l..I 1 ~t appeal.- ·:.. ,., ' I ,. l~ , ·: . ·" 1.i- ·;1 ' ! I~ ,i • ! I!~ :: , • :

I • I I l : '! r:; l I 1 0 Regarding discrepancies on the date of commission of the offence as testified by Pw2 and Pw4, the learned State Attorney said · that there is no such 'discrepancies as alleged by the appellants. She submitted that although Pw4 testified before the trial court - that the offence was committed on 12/10/2005 and Pw3 said that it was committed on 13/10/2005, that, was a very minor lapse taking into. account the age of Pw4. She submitted that that alone cannot, refute the whole evidence in the case. j I ... 1·._J J ! : . ' 1' 11·· , ~ .... ; i:.1, _1:ii·1:. :r11' . I. · " , 1 • : ·,.Ii~' • 1 , r _., I The 'learned State Attorney also . said . ftatl a!t~ou;gti :N~e testimony of PwS show that she was handed o'ver With the .police case file for investigation on 3/10/2005, while the offence was committed on 13/10/2005, that, was a slight error wh.ich cannot dismantle the whole evidence. She referred me to the case of Mohamed Said Matula v. R [1995] TLR 3 (CA) to- support her argument. .; Regarding the testimony of sources of light from electri~; lamp and torch -given by the prosecution witnesses, •the learned. State , . i . i 1 Attorney submitted that there was no any disc~e p;andies becays~/Jhe . light from all those sources were used to identi~' t.rn_; e lpm_• Jnant_~J Ji!I ; . •:y. •~ ·' JI_i'_J'l'l,_,..,+--- J:' I 1 (,, ,, , I-_,_/· . • ' .. · ,' :l: ! : ·

~-;~ ~ 'i::~ 3 ... ·--:-f;-· F ' ' • • • 1' ,. , , i ; : ·;·;' ! In tts jud~ment, the trial c~urt ruled out t~~1_:;:,11~11~: . there is discrepancies on the prosecution witnesses (i.e. _Pw2 and · I 1 :1 g~~;li ~~UI! 1 j 1 r . 1 ) -1. •!1l1 ';_ , Pw4) regarding the dates when the offence was committed during the night on 13/10/2005 at about 02.00 hours. The record shows that Pw4 said that the offence was committed on 12/10/2005 during the night' at about 20.00 hours. The trial court held that these discrepancies were not watertight therefore the prosecution witnesses should ·not be taken literally on their dates and cited the cases of Moham~d Shijh v. · ~ [1939] 6 EACA 97 and Shihobe Seni and another v.- ~ '.[1~92] [TLR; jsdi: . II I ' ' -: : I '' ; ; :1 j,1•111 ! l l! ( CA). - -·· l :;J; .1 -• ·:, · • ' 1·. In this case, only Pw4, (Pascal Alex), a standard 7 .. pupil of Mkuyuni primary school is the only prosecution witness who told the trial court that the offence was committed on 12/10/2005 at about 20.00 hours. The charge sheet and the other prosecution witnesses .said that the offence was committed on 13/10/2005 at about 20.00 hours. Hov,,P.ver, Pw4 is not illiteracv as held in the case of Shihobe • • •• I j Seni (supra) but altogether human recollection is no~ infa.ilible .. · : ' i j , 1 ·:.;' I . ' l . ·l·. i·- : J. ;:111; •1 . 1 : ·1 I . _, ,: :1 i1:/ i ' I ! ' • I

,,l!:I I A witness is not expected to be right in eyery i detail Whetf retelling his story (se~ the case of Evarist Kachembesho a~~ ~ther v. R ,. . / / - [1978] LRT 70. · _- -- ~,,p. -:· '_ c.- - 4 · Therefore in my opinion, on careful review of the whole of the evidence, the· discrepancies relied upon by the.· appellants. were apparent rather than real. ' . . The issue regarding the testimony of Pw5 WP 3269 DC Susana an investigator, who told the trial court that she was handed._over the police file on 3/10/2005 for doing· investigation while the charge sheet . categorically show that the offence was committed on 13/10/2005, was ruled out by the trial magistrate. :. I 1 • • .: : ; .· . I:,: !) ' . Li J; i ! . The trial court overruled the possibility of thi~{~'bridatlon Ori . . . i 'I :ii: I ': ! .. :d :. ' l~~! ground that the appellants had admitted to have been arrested 1 on 13/10/2005 and 14/10/2005, respectively, citing the case of John Causio Desec V. N. Amini [1934] 2 EACA on page 15 and 16 . . According to Dw3, Kaombwe Denis now the 1st appellant he told the trial court that he was arrested on 8/10/2005 at about 10.00 hours on his way home to Makuyuni from Mwaloni where he was interrogated and locked up until on 19/10/2005 when he was .,. > ! 1I charged before the trial court. i . . : i . i : ! - ' " :·:. Surprisingly, when Pw5 was cross examin~tj, jby I t~e~

se~1ri11 . accused now the 2 ·.. nd · appellant she told the trial cb:~~ J~af; ~he . . ! . :d?'.~~ 1 ; not remember the day when the crime was committed . .·· I think this state of affairs raises some doubt on the i prosecution case but I shall come to this point later on in t h i ~ t'<f~ _{/ ·\ ; . ! Judgment. 5 ' ' .-. ii t J-' ,ij:;: , :~: .\' ,\i I ·: is no dear picture of the source and extent of light used to identify the appellants when the offence was committed in that night. Now coming back .to the testimony of PwS which raises doubt as to the dates, I think the totality of her evidence show that she was only handed over with the police case file for purposes of prepari'ng a charge sheet and taking the appellants to the trial court. I I Indeed, there is a big differences in the testinnony .of Pvvt . . "I i :: i .. l .:i; ~ regarding the date when she was handed over th¢ ff li~fI 9af~: fijlt/~~/ ! I i: 3/10/2005 and the date when the offence was: committed: ioh: 13/10/2005. That is a period of 10 days, but, nevertheless, such a difference though beyond the accepted margin, may be regarded as showing fabrication of the charge. I think the prosecution evidence should be read as a whole and not in pieces, therefore, the doubt can be cleared by so' doing. The only doubt is on the source and extent of the light used in ', identification· of the appellants. The evidence of

the prosecution is . . ' . 'I . i ' • .: : I not clear whether the extent of the light from the :laf11P ,and tc>rcp Y"":~i~ ' . · :I· : ~ bright enough for correct and proper identification,, J :I · I ,I 1 1 ·1 · ;; . 1 Ifi :Ill! } "lll1 . . • 1• ' I ii I . The prosecution witnesses told the trial court that they easily . ~ ., ." . .. . .- .. · .. -.•- ide'nt1fied the appellants because they yvere neighbours. I am doubtful on the extent of the source of light which ~~ assisted in identification. 7 ! ;j '.•) ! :I I I f I. The prosecution witnesses . may be very truthfully but mistakenly in identifying the appellants in that night The trial court . did not warn itself whether it was safe to enter a conviction on such ;identification. I am doubtful on this evidence of identificatior1 e~pecially taking ; I , • , I ! , .•1 \, ,into account that the trial magistrate did not warn/ -~~im~elf ;w1~e.tl~:et,:,it 1 1 1 · was safe to enter a conviction in such circumstanc~t '! ·•; : )'[ i!iJ! I will therefore resolve this doubt in favour of the appellants by allowing the appeal, quashing conviction and setting - aside the sentence imposed. I direct that. the appellants be released forthwith · from jail unless they are otherwise lawfully held. Order accordingly. K. M. Nyangarika JUDGE -~ At Mwanza 5/10/2009 8 1:. i,i :j:1 1 ·· :1 itJ l I , . '' .