kaombwe dennis others vs republic 2009 tzhc 51 5 october 2009

IN THE HIGH COURT OF TANZANIA

AT MWANZA CONSOLIDATED CRIMINAL APPEAL NO.194, 195 AND 196 OF 2007 (Original Criminal Case No. 1113 of 2005 of the ' District court of Nyamagana at Nyamagana) 1. KAOMBWE DENNIS 1 2. STEPHANO SIMBA JUAMA L ......... APPELLANT'S 3. SIMBA NASSORO MAKARANGA J 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 c/s 287A of the Penal Code as amended by Act No. 4 of 2004 as rectified by Government Notice 269 of 2004 and were sentence to a statutory minimum sentence of thirty: I' i (30) years imprisonment. 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 they have stated in their memorandum of appeal. Miss. Fyeregete Mwamini, learned State Attorney, who" appeared for the republic, objected the appeal and supported the findings of the trial court. She said that the main ground in the present appeal centres on the issue of identification and the dates when the* offence i' w »* a s1 -! committed. She therefore summarized all the groundjs of appeal;^b] only one, to wit: ' ^ : "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 Pw l because he was her neighbour. Further, she said that Pw l identified the second appellant as she was familiar with him as she, used toisedjijj him passing in the street. 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. Further, he submitted that the second appellant was also identified by Pw2 during identification parade. The learned State Attorney referred me to the case of Waziri Amani v. R [1980] TLR 252 (CA) to Support appeal: 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. !'i ; .3 liji The learned StateAttorney also said that,although the i 1 • 1 ' : • ' i testimony ofPw5 showthat shewashanded over 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 which 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 o f light from electric, lamp and torch given by the prosecution witnesses,-the learned State Attorney submitted that there was no any discrepancies because! the ■1 ' - li II1 . light from all those sources were used to identify the appellants.; j In Its judgment, the trial court ruled out the’ iallegations th'aW i ' i ;■ there is discrepancies on the prosecution witnesses (i.e. Pw2 and 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 Mohamed Shah v. R i‘ i ;, [1939] 6 EACA 97 and Shihobe Seni and another v. R [1992] TLR,330ji i i 1 : i'i-i 4V (CA). ' !; M-t-' 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. However. Pw4 is not illiteracy as held in the case of Shihobe Seni (supra) but altogether human recollection is not infallible.. j i ; 11 i i 'i ! , !: I <•. ■: -I;;* if - ! ; :;i A witness is not expected to be right in every'detail wheri retelling his story (see the case of Evarist Kachembesho aitfd other v. R [1978] LRT 70. 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: The trial court overruled the possibility of this fabrication on the; i '• '* ground that the appellants had admitted to have been arrested 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 charged before the trial court. Surprisingly, when Pw5 was cross examined .by >the seconcjj accused now the 2nd appellant she told the trial coiiirt that she does! not remember the day when the crime was committed. I think this state of affairs raises some doubt on the prosecution case but I shall come to this point later on in this Judgment. Y <r 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 Pw5 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 preparing a charge sheet and taking the appellants to the trial court. Indeed, there is a big differences in the testimony of Pw,5 regarding the date when she was handed over the pplice case 3/10/2005 and the date when the offence was committed' on 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 not clear

whether the extent of the light from the lamp and torch was bright enough for correct and proper iden tification .3 ; f ! The prosecution witnesses told the trial court that they easily identified the appellants because they were neighbours. I am doubtful on the extent of the source of light which assisted in identification. 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 identification especially taking into account that the trial magistrate did not warn, himself whether it ," •' : '1 -ii,; was safe to enter a conviction in such circumstances. : 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