19830126 TZHC Tanga1

- 4/c IN THE HIGH C OURT 0. TANZANIA

AT TANGA ApLTE 3TJRIDLtCTI0N I CRIMI](AL ATPEAL NO, 62 OP 19801 1 (Qigi Cii Cape of 198f (Djstrjct Court of Lushoto District at Lushoto) Before p,Z Kagali, Eaq. D/Magistrae SELEMANI MJSSA...S..,.S..SAPPELLANT (Orig4 Accused) - '-. - Ve5u (0rig prosecutor) CHARGEg Robbery wih1Vioience c/s 286 and 28 :± the Penal Code I. JUDGEMEN T. Siaya, J- This appellant was c j niricted of Robbery contrary to section 285of. the Penal Code and hwsstenced to seven years imprisonment under the Minimums Seutences Act, 1972 is now appealing to this .\r Court The only issue for considerationin th1ith appeal jsTtht of identification, There were two identifying witnesses.:. Both being complainants. i - Iie cas.e and full brothrs. The first was Juma Abdalla (p172) a boy aged thirteen years whom the learned trial Magistrate permitted to give evidence.upon affirmation, apparently, bfter being satisfied that he appreciated the piety of an oath or afZaztion' The second was Moharned Abdafla (pV3), aged nine years who gave an uizod statement. The record of proceedings of the trial Court is completely silent as to why this was so. This with respect, -is- improper because in terms of section 127 (2) of the Evidence Act, 1967; I I "Where in any Criminal Causer matter any child of tende±' years called as a witness does not e' in' the opinion of the Court, understand the. nature of an oath s this evidence may be

received though not given upon oath or: .a±'firuation, if in the opinion of the Court, to be recorded 'In the proceedings he is possessed of suffiolent intelligence to utify the receptIon of his evidence, and understand the duty of speaking the truth" (The underscoring is mine) As the positlonstandsin the instant matter it was left by the learned trial Iviagistrate to th±s Court only toassü'mè that the trial Court must have found that pW3 did nott the time e.tepped in the witness box y appreciate' the piety of an oath but at the same time he was poroseased of su,ffic.ent intelligence to..un.,9rstqnd the nature of the proceedings arid the 'duty of speaking the truth This, I hold s was not good enough as the learnedrial - Magistrate was duty—bound under the law to record whatever opinion he had o p'73 as a wi.tness However even without dwélli on this issue any further both PW2 and pW3, the only eye witnesses to the robber* were agreed that the incident took place ,at night; in the dark; and whilst It was raining Admittedly, thero'ore circumstances favouring a correct identification must have' 'been dIfficult It mu st be conceded that both pW2 and pW3 stated in their respective testimonies that they knew the appellant before Neither of theme however, stated in evidence how he identified the appe1lant According to P141, father of Th72 and PW3 1 the' oothplainats reported to him

that they recognised the robbers whom they described as three in number ' However, no £rther description of the said three robbers or any of them was given by fl12 and pW3 p went on to state in his evj.dence at the trial that pW2 aad pV0 Identified the appellant as one of the three robbers a week after the incident and only when the appellant and two others visited him at his, i 1 e. pV.'s house The bicycle, of Phoenix make and black in colour, was never traced and/or recovered J. I I 3 .. The question of identification is a matt6r to which one must always pay the most careful attention because of the dangers of mjetake In the instant matter in view of the difficult circum8ta noes favouring a correct identification which prevailed at the material time I fee], it is dangerous to uphold the conviction For this reason this appeal succeedS The conviction is quashed and the sentence passed thereon is set aside )t is -1- urther dirocto that unless the appellant is being held on some other lawful grounds he should be set at liberty forthwith ff Delivered in open Court. at Tanga this 2th day of January, 1983 (HE.D. Judge