19771230 TZHC Mwanza5

I f IN THE HIGH COUTIT OF· T~;NZJiNI;l i\T MW;,NZ.h · J;PPELkiTE JURISDICTlON HIGH COURT ,CR IJ:,iIN!i L liPP:·~.:,L NO. 149 OF 1977 . CF. ca .J)PP. 234/77, 31 7 /71 & .162/77 (.Originnl Criniin~l C:se No. 459 of 1976 of the District Court of Wrnsorn.'.:! District nt fus.oma ·_ Before L. ;;. L. foGONJ,i, Eaq., n:istri6t M3gistrnte) ·/ KJiznirnr s/o [,if,NYL111J Mb IRi, & 3 OTI-1.8,rn •••••••••••••••• ·• .......... liPP.i!JL1,1NTS versus . THE REPUBLrc·••••••• . . . . . . . . . . . . . . . . . . . . e • ·• • • • • • • • ·• • • • · • • • • :. ·• ·• -• • ·• RESPONDLNT .. · J UD G lt1 E.: N T MFiiLILA, .J.: These four nppe;:ils were for convenience consolid-.tcd, '.:!nd they nre . ali ag~i~st convictions for the offence of'robb0ry with .~iolance contr~ry to sec.tions 285 <ind 286 .of the Pon<Jl Code. E!lch of the four appelbrits W/ls· sentiriccd to seven yq1rs imprisonment. In the district court the·· appell,rnt's were dcsignnted "s follows: the appcllc1nt r.L~FIGi; @ MJ; IR.A ·S/0 NYM1ITEtiifi w,:1s<the 1st c!ccused, KW;;Nt, s/o MGi;Yl, - the 2nd,2ccuscd, ISV1J,IL s/o Ilii,BERE 3rd ~ccusod. :rnd CASil'1IR .S/0 TII1;NYlJl!li the 4th accused. In this · judgmen't ;~. .v. ' t w.ill keep thes.e design:::tions. 11.t the trfol .the complain:c:nt PJUL:)JY:iK]ISONi;i. (P.W·.1) said th"t it w~s the four app.elbnts who hc::d ,11ss;:;ulted .him with krii'(es and after r~ndering hi~. uriconsc iou.3, ·took from hirr1: Shs. 740/= which he b.qd 8~rlfor retained from. '.:;he pockets of his drunken uncle r.'i'i\KilKUR,'; KISUMO (P. ~'l.-2) for •· srif~ keeping. The problem in this c,se ce.ntrcd on the identity of ·the t:i.s~2il2nts.; I will therefore ex.::mine the evidence of ,iJ . mtific''.tion··to see ·v,hether the .1.11pellGnts. were idantified beyond dispute;. !iccording to the compl3in,rit~ he h~d baen ~ta pombe shop drinking•· when l~tar his uncle Iklrnkura also 2rriv.:::d but he w::,s so drunk th::,t he soon f,311 r:sleep. ~11 the appell~nts were ~lso nt this powbe ~hop cnd wer~ sitting no2r his uncle. · The{n he saw :the 1st ::ind _3rd ;.:ccus0d p~rsons -::s the ~:H:igistrste p·ut it irtqmpering with his {Uncle'.s) pock-3t~:" Sceing.th8t•;, he .marched closar to his unc18 ,rnd serirc.hdd his .Po.ckets cind found. Shs. 740/= in ohe• of the p·ockets. He took this ·mon·ey for s6fe keeping. 1,t 10 p.m. scid the compla inarit, he left tne pombe pl.::i:~e ,:u:id started wn lking home. The'i-1 according to him ns he w:3.lked· horoe, he overte~k the 1st accusedv on the ·\,;ay and greeted him as he passed" ThG 1st accused diu. not .respond, he therefore .. walked on. The next sequence of events is so important"that I want to repro?,,uc~ it" as recorded by the .tri.al .1V1agistratoo .1;fter going pass0d the ,1:§t . accusea.; the complainant went on: 11 f;fter a short while I heard shouts from behind me saying "ua, ua" (kill, kill) and on looking behind I saw a group of people coming.• I then saw accused Noel who rushed ahead. of others and stabb0d ·. me with a knife twice on my back and once on my thigh. I fell down unconscious~ Before· he stabbe..d:_ ....... me, I heard acct.i~ed No.l call out the name~ ~':f .tl~e ' ' other accused persons and giving them instructions on how to attack me. When I fell do;.m the monoy was in my pocket. tccusod No.I fumbled about in my pockGt and took out the money." Thus according to the complainant, he identified the 1st nccused 2s he overtook him when walking home, and the rest of tha appellants when the 1st accused called th\::Jm out individu3lly by nar,1as as he directed them on the method of att3ck. I will start with the identification of accused No.2 to 4• First of all I do not think it is realistic to say the 1st accused called out the names of his colleagues. He c8nnot b~ expected to have done such a foolish thing, for by calling out his colleagues by name, that would be the most certain way of destroyinc th0 advantage of operating under cover of darkness, hence I think that this pi0ca of -=viu,rnce was . add8d by the complainant for eff0ct. 3econdly if th8re was such calling ,. ?. out of naraes, Vi:;DUSTUS i\,US,,lJGO (P • .J.]J-"wfc-··c1aim0d to hav:3 h0ard the complainant m0ntion t_he 1st acc_us.ed. b'y. nnr11e, would have h-:iard. Thirdly, if the sequence of events as narrat~d by the cornpldjnnpt i~ acce~ted then the accus8d ~)ersons_ could not have le_ft the pop1be shop together• The . seq_u_en9e ~., of :~vel1_ts mu_s.t ,l:1_avu .1;)0en. a.s f,oll.o~rn.,. that the ,1st_ c\CCUs,..:li L:if't the pombe si1op first, followoJ. lat0r by thG complai.. ant who overtook nnd ~)assed h;i.~1.•.. .,-J.e. ?-P. PP.t. f-)1,0Jrl, p,t, WP.{l:t. point in time the J?est. of the acq-used,- p0rsons left tha pombe shop and the dir-::ction which they took. In the ctrcwnstances and as accordinG to tb:e complainant, the shouts of kill, kill, took place a short while aft0r passing the 1st accused it was no~ cLiaF. to me how tl1e· ·l's't· a·ccusetl: ·cb'uld havb· khb\m' tho· prEl°s'-'!hce· of· 'the other accused persons and cell out their mimes. [,11 those circumstances comp.:,l me to hold that the complainant . .a:~cl.ed thi..s .evidence for eff0cto r.ir. r:iagongo who appeared for the republi.i:, was of the same view and he declined to. support the convictions of these accused l)er sons. But he ·su;>-~r·tc.d:.\he ..:. . conviction of the 1st accused saying first that they had been togeth6r at t·he pombe shop and secondly ·tha_t' he had greete'd hirn as h·e over took him on the way~ These s·ubmissions are alri 6ht ns 'far a·s they f;o but I think that they were rE:Jstod on a false :;remise namelf.; . that the complainant correctly established the identity of the r~rson he 6~er took. I say this is a false premisr.; b~cause the circumstances were very unfavourable. B.Y tho complainant's bwn admission, it was·a dark night so thnt he c,--uld not see anybody·, how ·then did he identify the 1st a-c0usetl a.s· he allegedly went passed him? P.W.3 told the court that he heard the:• compbimmt cry out ment ioninG' the 1st accused by .rn=ime, but the compb in°rnt himself never s:,id suc~1 thing.· The danger in this case which was not appreciated by the trial Mai:i.strate, ·is thi::t· i.t was more likely th.:m::11ot fo"r the_ complainant to h;.~ve made the_·-identification by associ3tion, narnely associatint; h;.);l· ·, assai1ahts witt the cv~mts or that· evening at the pombe si1op wher'ebY:the appellants or some o_f-' therri; had seen hir,1 take out the money from his drunken uncle· and. keep it. This··danger is re:=il and 1vhen look(~d at together·, with the unfavollr::11Jle ci:r°ci.i-inst,mces of identifying anyone,_ it assumes important prop6rtions~. .(~. .. . ·· .. , · ,· - . For all these re;:~sons· "I think that the id.ent·i ty of aJ:l the appellants was not established'· beyond reasonable doubt and tha·t any dou.b_ts aS ·r have trie•d ~t> detnonstrat~ ih. ·the causa· of this jutlgmo11t 1ntis·t be~· t·¥"~ resolved in: thefr···fav'Dur •. •1iccortlingly the appeals ·o·f all' the ai,'.;:)eJ.ii:fnts are allowed, theii convicticins· qu,a'.sh'ed and se"ntence-· 'set aside,, They ·: should all be· re lea sea· fron(.prisoli. ~le s's t~1ey nre: otherwise :I.awfully· de tc1 ihed. · :., ~ ~: ·:>'-):· · · · J; ' . . .. Delivered in Court at Nwanza th°ii 30th d".1y of Decem'ber, 1977. Iv1Wi1NZi, 30TH DBCEr:,BER, 1977 • . • IJ t •.::