20120404 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA AT DODOMA (EXTENDED JURISDICTION) PRM. CRIMINAL APPEAL NO. 29 OF 2011 (DC) CRIM8NAL APPEAL NO 112 OF 2010 (ORIGINAL CRIMINAL CASE NO 295 OF 2009 OF THEDISTRICT COURT OF MANYONI DISTRICT A T MANYON1 N GILIMON GINANAI ................................................ APPELLANTS VERSUS THE REPUBLIC ..II....I..........I.....................O.OU.......RESPONDENT 8/2120 12 & 4/ 4/ 2012 JUDGMENT R.I. RUTATINISIBWA- PRM —EXT. JURISDICTION: The instant appeal has origin from Criminal Case No. 295/2009 of Manyoni District Court. The APPELLANT one NGILIMON GINANAT was charged with Arson c/s. 319 (a) of the penal code cap. 16 vol. RE. 2002. After full trial the appellant was convicted and sent to jail for a period of 7 years and ordered to pay the value of the burnt property. 1 p Aggrieved by the decision he has climbed to this court by way of appeal. He filed the memorandum and another one later which he baptized as additional grounds of appeal. He is protesting his innocence.: And the grounds of appeal contains the following gists. - That there was no proper identification. - That the CAUTION statement was not properly admitted. - That the evidence was not strong enough to warrant the conviction. The respondent was fully represented by Mr. Faraja Nchimbi , Senior State Attorney. He joined with the appellant to challenge the decision of the trial court. The appellant appeared in person and not represented. A part from what he filed he had nothing to add. The spade work was done by the senior State Attorney. The background is that on the aged hours of the night on 14/5/2009 the hurt in which tobacco is stored and the property of PW1, Samson Luchagula was burnt. PW1 alleged to have seen the appellant setting fire to the said hurt. That he saw him and raised alarm. That the member of his family waken up and chased him. They did not apprehend him. That at the scene the appellant left the bed sheet, a shoe, and mobile phone - Nokia. The said 2 property were tendered before the court as exhibit. PW II, Sgt. Jonasi also, tendered the cautioned statement. On the point of identification Mr. Nchimbi argued that although PW1 who said to have known the appellant before and alleged to have seen and identified him at the scene, did not explain on the nature of the light. That PW1 did not tell the trial court about the distance where he stood from the appellant when he was identifying him. He cited the case of Raymond Francis V. R. (1994) TLR 100 CA to support his stance. I perused the proceeding with a kin eye. I agree with the learned senior state attorney. The element of identification was not exhausted. The complainant had to explain the nature and the source of light which influenced the identification. He had also to say about the distance where he stood from the appellant when he made the observation and the time spent. (See Waziri Amani V. R. (1980) TLR. 250). The 1s t ground on identification is substantial and it is allowed. Mr. Nchimbi also addressed on the identification of property. That there was no sufficient evidence' which proved that the properties tendered in court belonged to the appellant and not to any other person. 3 That the appellant said that the prOperties did not belong to him during the trial. Then the prosecutor had to go further and prove that those properties belonged to the appellant and nobody else The evidence of PW1 said that at the scene they found a bed sheet, a shoe, mobile phone - Nokia and picture of the wife and that of the son of the appellant. PW1 said that once was shown those picture by the appellant that the faces were that of his wife and his son. The appellant at the trial he denied the picture and insisted that the faces were not known to him. A part from the evidence of PW1 nobody was called to read the picture and state clearly that those faces were those of the wife and the son of the appellant. I am of the clear mind that it was not proved beyond doubt that the properties belonged to the appellant and nobody else. As it was the position in the case of Fadhili Mohamed V. R. (1974) LRT.n..5 there should be distinct features on the' property which can do away with mistaken identify. Another ground was on the admission of the cautioned statement. Mr. Nchimbi submitted that when PW3, Sgt. Jonasi was tendering the cautioned statement the appellant objected. That the trial court did not 4 • '- -I stop and conduct an inquiry. Instead, the statement was admitted as an exhibit. That the said exhibit can not form abase for a conviction. He cited the case of Paul Maduka and 4 others V. R. Cr. App. No. 110 of 2008 CA. that the Hon. court provided what to do when the cautioned statement is challenged. I perused the proceeding I found that when the appellant objected the admission of the cautioned statement the trial court did not conduct an inquiry. That was wrong. I have already said that the appellant was not properly identified. I have also found that the cautioned statement was wrongly admitted and these two were strong causes which formed the base to ground the conviction. That being the case it is my finding that the grounds of appeal are meritorious. Appeal allowed. The conviction is quashed and the sentence set aside. I did not labour on the issue of sentence for fear of wastage of precious time. The appellant be released forthwith, if not held on other lawful matter. 5 TT (R.I.Z PRM. EXT. JURISDICTION 14/3/2012 Delivered in the presence of Appellant and Mr. Kyando State Attorney for the Respondent. Right of Appeal explained. (R.tA PRM. EXT. JURISDICTION 4/4/2012 pRCL p3DF yj DUDO MA RESDET MAGS1TE CO1WT