20160421 TZCA Mbeya 3

IN THE COURT OF APPEAL

AT MBEYA k :AN:')__ \_ "' {CORAM: KIMARO, J.A .. MUGASHA, J.A., And MZIRAY, J.A.) CRIMINAL APPEAL NO. 578 OF 2015 MSAFIRI HASSAN MASIMBA ........................................... APPELLANT

VERSUS TH.E REPUBLIC •••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mbeya) (Lyamuya, Senior Resident Magistrate - Extended Jurisdiction) dated the 2 nd day of October, 2013 in Criminal Appeal No. 12 of 2013 ••••••••••••••••••

JUDGMENT OF THE COURT 18th & 22 nd April, 2016 MZIRAY, J. A.: Msafiri Hassani Masimba, the herein appellant, now serving an imprisonment term of thirty years, was charged in the District Court of Iringa at Iringa with two counts. The first count is armed robbery c/s 265 and 286 and the second count is arson c/s 319(a), both of the Penal Code Cap 16 R.E.

2002. He was found guilty of having committed the offence of armed robbery. Upon conviction, he was sentenced to the term of imprisonment stated above. This is his second appeal. His first appeal was dismissed by the Resident Magistrate's Court of Mbeya presided over by a Senior Resident Magistrate with extended jurisdiction. 1 cassete tapes, a microphone, receipts of radio and a bicycle. All of the items were the one stolen from PWl. In his defence, the appellant denied having committed the offence. He stated that he was arrested at Ikengeza village but he denied to have been in possession of the gun and other items purportedly to have been stolen from PWl. The appellant's memorandum of appeal raised seven grounds of appeal which mainly hinged on the issues of visual and voice identification; the prosecution's failure to tender the complainant's PF3 to prove that the latter was truly shot with a gun; the prosecution's failure to call the Ballistic expert to prove that the gun and cartridges were the ones used during the incident; the trial court's reliance on PW7, PW8 and PW9 evidence which was allegedly hearsay; improper search procedure and that he was restrained at police station for nine days. Before us, while the appellant appeared in person and unrepresented, the respondent/Republic had the services of Mr. Basillius Namkambe assisted by Mwajabu Tengeneza, learned State

Attorneys. At the commencement of the hearing of the appeal, the appellant successfully prayed to add more grounds of appeal which touched on the prosecution's failure to organize and conduct the identification parade and that the receipt allegedly found in his possession bears the name of Ali Mtwanga who had nothing to do with the charged offence. He then opted for Republic to begin, then to submit later on, if necessary. 3 Ms. Mwajabu Tangeneza, learned State Attorney at the outset supported the conviction and the sentence imposed. Submitting on the issue of identification, the learned State Attorney argued that PWl, PW2 and PW3 identified the appellant visually and by voice. It will be recalled in their evidence that PWl, PW2 and PW3 testified in common that they identified the appellant through moonlight and the light from the burning house set on fire by the appellant. They also said that they were familiar with the appellant who was their relative as they stayed in the same locality. PW2 on her part went further stating that the appellant even used to take meals at their home which evidence was supported by PW7. It is the contention of the learned State Attorney that the fact that PWl, PW2, PW3 and PWS were relatives of the appellant and were staying together in the same village was an assurance that they did not mistaken his voice. To buttress her argument, the learned

State Attorney referred this Court to the decision in the case of Gozbert Henerico vs. R, Criminal Appeal No. 114 of 2015 (unreported). She dismissed the assertion by the appellant that the evidence of PW7, PW8 and PW9 was hearsay. Submitting on the prosecution's failure to tender the complainant's PF3 and on failure to call the Ballistic expert to prove whether the gun and ammunitions were the ones used during the incident, the learned State Attorney readily conceded to those facts. She admitted that the PF3 was not tendered to prove whether or not the complainant was shot with the gun and that the Ballistic expert was also not called to testify in Court. She further conceded that the search and seizure of the items purportedly to be owned by PWl was improperly conducted thereby contravening the provisions of 4 section 38(3) of the Criminal Procedure Act, as there · was no receipt acknowledging seizure of the purported items and that the appellant did not sign the respective document. On that basis therefore the learned State Attorney urged the Court and correctly in our view to ignore the evidence on record at page 13 and that of search and seizure. She prayed the said evidence be expunged from the record, as we hereby do. All the same, despite the shortfalls in the prosecution case, the learned State Attorney quickly pointed out that though the PF3 was not tendered in court

and the other evidence remains expunged, that does not mean that the incident did not occur. The other evidence on record including that of the victim should be accorded due weight. In this regard she made reference to the case of Bernard Masumbuko Shio and Charles Widman v. R, Criminal Appeal No. 213 of 2009 (unreported) where the Court held that even if PF3 was not tendered that was not a ground to disregard the evidence of the victim. As to the complaint by the appellant on failure to conduct the identification parade and on unreliability of the visual identification evidence, it is the appellant's complaints that the identification parade was not conducted and the evidence of visual identification is unreliable. The learned State Attorney responded and correctly in our view that since PW1, PW2, PW3 and PWS had already identified the appellant because they were related and resided in the same village then it would have served no purpose for the police to conduct an identification parade. Having closely examined the evidence on record, it is our considered view that the evidence of PW1, PW2, PW3 and PWS on visual identification 5 is central to the determination of this appeal. To mention few decisions, the Court has stated that the evidence of visual identification is not only of the weakest kind, but is also most unreliable and a court should not act on it unless all

possibilities of mistaken identity are eliminated and it is satisfied that the evidence before it is absolutely watertight; (See; Waziri Amani V R, [1980] TLR 250, Raymond Francis V. R, [1994] TLR 100, RV. Sebwato [1960] EA 174. Based on that, it is most essential for the court to examine closely whether or not the conditions of identification are favourable and to exclude all possibilities of mistaken identity. In our case at hand the evidence revealed that on 7th April, 1995 at about 10.00 p.m. PWl and PW2 were in bed asleep. They heard two gunshots and someone ordered them to come out of their grass thatched house. They claimed to have recognized the voice as that of the appellant. They also heard the third gun shot. Sensing danger, PWl got out of the house running for hide. There he met PW3 and he informed him that the appellant had shot him on his left hand. Since the appellant was shooting at random the two took cover into the maize farm and saw the appellant setting ablaze the house of PWl. While there, with the aid of moon light and the light which came from the house set ablaze, they identified and recognized the appellant. Basing on this evidence we have no flicker of doubt that the appellant was properly identified by the witnesses at the scene of the crime. The evidence of these witnesses excluded all the possibilities of mistaken identity. We find no reason to fault the findings of the High Court and the court below. 6 Accordingly we find that this appeal is arid of merit and is dismissed in its entirety. DATED at MBEYA this 21 st day of April 2016. N. P. KIMARO

JUSTICE OF APPEAL S. E.A. MUGASHA

JUSTICE OF APPEAL R. E. MZIRAY

JUSTICE OF APPEAL I certify that this is a true copy of the original. . p---~ .--.~( ~ . R 7