20110928 TZHC DODOMA

,·,······ .., ... , . . . ·; ,.,.t.......... ·' /:·. ,, . :~. IN THE HIGH:c;ouRT OFTANZANIA · AT DODOf\JIA _·.( · , · ·· (DC) CRIMINAL APPEAL NUMBE:f{, 78 'O'F 2oi1 ·. •..;·· .. ft·. , (ORIGINAL CRIMINAL CASE NUMBER 350_0F1~98 t-JF,TfiE:t,1STRICT COURT OF DODOMA AT DorioMi4J :'.:· : _ · i: · - ·. , MANENO SALUM-----------------------------;.~~- ...~~ APPELLANT

VERSUS THE REPUBLIC------------------------------------------- RESPONDENT

JUDGMENT 18-07-2011 & 28-09-2011 S. S.MWANGESI J.: The appellant herein with others, that is, Swedi Mkongoje @ Mtoro and Kibiriti Shabani, stood charged at the District Court of Dodoma with two counts that is, first robbery with violence contrary to section 285 and 286 of the Penal Code Cap 16 Volume 1 of the Laws Revised. It was the case for the proseCution that, on the 12th December 1998 at about 2030 hours, at Bahi Sokoni village 1 .,- ••-.',"": :-n,..,.,: '7,!f , •· I -~ ~-----~/./·•---.4 ~;•T ~ ~ . . . : . ~ ~ - - - - - - - - ~ - - .. -'C._ ·~-T-----.:. -'~--.: ' - ~ - - - -- - - ~ -- ·- - __,!. ---~-11~ - - - - within Dodoma Rural District and· R~gi-on of Qodoma, the accused did jointly and' . . ,.···... together . steal· cash TZs. 7,000/=- and. -~ ·._ . Sesko . watch valued at TZs. 5,000/=, all total valued at TI~. ::12,oob/= the property of one Mussa Mohamed, and immediately before· sod1 t_i_rhe ofstealing, ~hey did use actual violence to wit: they cut him with a bus.ti knife,. (pariga). bnhis . head and chest in order to steal ·and/or retain ' . the stolen property. In the second count, all accused stood arraigned with the offence of wounding contrary to section 228 {1) of the- Penal Code Cap 16 yolume 1 of the Laws Revised. The particulars of the offence were that, on the 1th day of December 1998 at about 2030 hours at BahiSokoni village within Dodoma Rural District

in the Region of Dodoma, the accused did jointly and together wou.nd one Mwanne Said using a bush_ knife {panga) on her shoulder and her hand and thereby causing her to suffer serious cut wound. · After the charge had been denied by all accused persons, in its endeavour to establish the commission of the offence by all, the prosecution did summon six witnesses. And when the accused were invited to enter their defences, each did ·do so on-·affirmatien and.the.sec_q[ld a~cused did in addition, summon one . ·- - - - - - witness to assist in building up his defence. Thereafter, upon the learned frfar · Magistrate evaluating the evidence that was placed before him was of the view that~ the case had not been sufficiently made against the third accused. The same was thus acquitted and set free under the provisions of section 235 of the Criminal Procedure Act Cap 20. 2 On the other hand, the learned Magis~-ra.te___ was convinced-· beyond -~oubt • I• • that, the commission of both offences by the du~-, had been . .· , es.tabii'~hed. Both - .· .' ';- were accordingly convicted as charged. And supseqye.nt tothe·,convictit)n, each of . ··- ' . . ... , ,;: them was sentenced to concurrent sentences of thirt/ (30) ye~rs imprisonment . and one year (1) imprisonment respectively. The~, e~ch-accu~ed w~s ordered to compensate the victim (PWl) and PWS an amoucit·,~f rzs. 10,000/= being th~ value

of the robbed properties and the injuries suffei:ed. On the 09 th June 1999, the appellants started to serve their jail sentences. The decision of the trial Court and the sentences imposed, did_ aggrieve the appellant at hand who has decided to challenge it by this. appeal. In his memorandum of appeal, the appellant has raised mainly one ground of appeal which is to the effect that, the evidence of identification that was relied upon by the trial Court to found conviction on him was insufficient to justify conviction. It has been the view of the appellant that, the contention by the prosecution f witnesses to the effect that they identified him with the aid of light that did come from the burning kerosene lamp, could not have, enabled them to adequately identify him. According to the appellant's opinion, if the witnesses could _have perfectly identified him at the scene of the incident on the fateful night, they could have named him instantly to the people who rushed to the same after had been raised 3 1 -.---1;./,-1/;~ __ a_n__ a-,a--rm~ 7 .. -,-a--n_d_a--s--a-re-s-u_l_t~j-.t-h-e-y_c_o_u_ld--ch~av~~.e-.-~-be_i~_n:_t~ra~c-e-d--r-ig_h_tf_r_o_m_t_h_e_n__H_o~w-.~~-~r-1~:- , • th~t:.was_ not the case. The tracing of the ba'ndits started in the m<irning by :, ,: •.:. , . . .. ·:. ·, . .· following tti~tr·fqotprints wh.ich is an· indication that they had no idea of the . ;

'·. -... =,,.· .· ·:..;:__ . 1.'·. . .. bandits who had· robbed and inj'ured the victims: Still on the que.$tiofrof identification, the appellant has also challenged the identification alleged· to have been made· by PWS through the voice of the bandits. It has been the assertion of the appellant that, such identification could not be relied upon because it is very unreliable bearing in mind the fact tha~ in certain instances people imitate others' voices. The respondent in this appe~I was represented by Ms Luwongo learned State Attorney. On her part, she did not support the conviction that was entered against the appellant by the trial Court. It has been the opinion of the learned State Attorney that, bearing in mind the fact that the commission of the offence in :r the matter occurred during night, and the testimony by the victim was to the effect that they got invaded by about twenty (20) bandits, the light from the burning lamp, could not have sufficiently enabled them to identify the appellant only from the many. Furthermor~, there was nothing hinted regarding the intensity of the light from the said burning ke.rosene lamp. Additionally, the learned State Attorney did opine that, there was contradiction between the version of PWl and PW2 as regards where the 4 ,.I 14 ·1 , Q~;osene lamp had been. pla~ed. While .l'Wl told the Court t~pt it had. been placed at the back . yard

of their house, the version . '.. . bf PW2 was. to the effect that it ... • . had been at the kitchen. Under the circumst~-n~~s,,the Court was' nevet,'J~r-ihto a . • • ~ ' -. .... • • • •• , < dear position as to which between the two was;the.versioi'.l . . . . . t~... ~~ r~Hed\1pbn: ,.. . . ,. ~. ,, The learned State Attorney did submit furthefr tqth~ effect that, _there wer~ some flaws made by the trial Court in admitting the PF:.3 that was tendered as exhibit in Court. ·it was argued that while doing so, the pro.visions of section 240 (3) of the Criminal Procedure Act was not complied with. Furthermore, even when -> the document was being tendered as .exhibit, the appellant was never asked if he had any objection to its being tendered. Such act by the trial Court, did deny the . appellant his right and therefore, the content of the said document ought not to have been considered. Lastly, the learned State Attorney has pointed out another anomaly that was made by the trial Magistrate in recording the evidence of the prosecution witnesses. It has been her view that, in recording the evidence of PWl Mwanne Said and PW2 Aziza Hassani, did infringe the provision of section 198. (1) that demands that, all prosecution witnesses, have to give their evidence on oath and/or affirmation. However, the two witnesses did give their testimonies without complying with the said requirement.

On the bases of the above pointed out anomalies, the learned State Attorney has requested this Court to find merit - in the appeal by the appellant. 0 5 . . .. . . .. ..· .. . --+-,, 0 --------------~ As _pointed out by the appellant and the leaq,ed State Attorney above, the evidence that did constitute the basis for the conviction of the appellant in this· case was that of identification. The question thus which this Court has _to resolve, is as to whether the evidence of identification tendered in this case did meet the necessary requirements for i ~eing relied upo·n. On the bases of the well detailed submission of the learned State Attorney as to the shortfalls ·on the evidence of identification, as well as t~e other procedural flaws pointed out, this Court is inclined to associate itself with such observation. And without.any ado, holds that the appeal by the appellant is meritorious and fit to be allow_ed. It is accordingly allowea. To that end, the decision of the trial'Court wherein the appellant was found to be culpable to the charged offences of armed robbery and that ~f wounding is· hereby quashed, and the sentences of thirty years imprisonment and one year imprisonment which had been imposed by the trial Court are as well set aside. In lieu thereof, it is ordered that the appellant be set at liberty forthwith unless lawfully held for any other justifiable cause. Order accordingly. 6