19880927 TZHC Mtwara1

IN THE:.. HIGH COUh.T Or THNL.1-,.NIA . HIGH C0UkT CKiiHJ~,~.l., nd1 J:.,,.,L NOo 82 OF 1988 CON.:.:,OLIUi..TtD ChIJUN,,L ,-u,i?J:,,,L NOo84 OF 198t:i' Original criminal case No. 130 of 1987 of the District court of Songea District at Songea Befcre: G ■ M~ Nkwera Esq. 1 Resident Magistrate Versus THJ:; kt,PUBLIC O O O O O O O O O O O O O O O o, 0 0 0 hL.Si?ONDENT J U D G ME N T KnZIMOTO, J. In these cc,nsc,lidated a 1J!--leds the: apµelLmts Vi<lnery G2.mo. and Mc:.s_haka Mhctiki whc,m I will ·rt:::fer tc, us the 1st c1.nd 2nd ap~ellcnts were chdrged with four oth~rs fer th8 offence of burgl~ry anu theft c/ss 294(1) anu 265 res~ectively of the i:l-=:nal Code. The □ J!µellunts were ccnvicted und sentt:nced accordingly. The re~tJ.were c.oquittu~,. .Th~. ap,p!i.LLants. having been aggrieved by the decision Gf the trial C(Urt have now a~JeGled t0 this court against b0th c0nviction and sentence. In this case there was evidence th~t on the night of· 30.5.87 ~Wl secured the do0rs anu windc,ws of her house before she went to sleeµ, only to be awah,neu duriny the night when . she heard someone ordering her "Don•t come-outside. Otherwise you will be killE::d 11 o i:irudence tuught ht::r to heed the comm2.nd o According to her evidence thieves hc.d --ilready entered h!i.!r house anu when tranquility prev,.iil ed she found a radio, a bicycle, a table watch, q SiJt.=dker ,md scores of k:i. tch2n Wu.re were stclen. A report hjving been made to the police two buckets were: seized from Titus Gc:ima who was the 5th c.1ccusccl z~t the trial o 11ccc-rding tc, 1)W3 Cµl o Siloji, T:.tus Gama told him that he had bought th~ two buckets from som~body he could not remembt:=r., Both di,Ji.Jell ants denied th-1t they went to break into th(! house of Pwlo They also dt:nied th,it they ~tole the pro 1Jerti1;;;S of iWlo Titus Gama told the court at the trial th~t he h~d \ bought two buckt:,ts from one Juma il/gulilil<:i fc,r sho 500/= in oooo/2 2 the presence of Eva HctUlt: ( DvJ 3) o rt is of imf)ortanct: to note thnt the appellants wt:re not f0und with anything in th~ir possessiono The learned trial resident m~gistrdte convicted the a 1Jr>ellc.nts on the i(.!entificatj_c.;,n 8VidE:nce of PWl., Th1= Re~ublic have declined to su~port the conviction~ The issue of identification eviaence has been discussed in a number c,f cc1ses ond there is no dcubt as to tht.: legnl µosition. In vJaziri Amani v R (1980) TU< the court of Appc--u said at ~age 251. The first point we wish to muke is an elemt:ntary one und this is thut evidence of-visual identi- fication, ciS courts in E0st 11frica and England have warned in a number of ccses, is the weakest kind ond most unreolibleo rt follows therefore, that no cc,urt.should act on evidence of visaal identification unlt:ss all µc.;,ssibiliti~s of mistaken iuentity are elimin.:..it~d <1nd the court is fully satisfied that the evidence before it is i:lbsc.,lutely waterlight. The e'(idence in the pr1..::sent cdSE:: cc.ul<..I not have:_p,a.ssed. tbistitest hud th.-.: trial c0urt h<1d warni::d himst.:lf of the dangers inherent in cas~s where.th~ identificuti0n t~k~s ~l0c~ at night. PWl told th~ court in he~ own words: Luter on I saw µe0µl~ running awayo .I opened the window. I saw th~ first accused ~nd 6th accused persGn und oth~r peo~le. I mdndged to identify the 1st and 6th uccused µers0ns. because the~e wus a strong ~lcctric light outsidea outside my house I put two bulbs 0f electric (sic) and dectricity Wu.S liyhting tht.; whole niyht .. The first ,.md 6th dCCUSl:d i:JuSsed through thut .light. The 1st ~ccuseJ hud bicycle in his hand, th~ 6th accused had a cooking pot (sufuria) in his hunuso I did not manQge to identify other jJOct,ile becc1use th~y c..iid not t,i2ss thro1gh th.::it light. 3 She did not say how long she obs~rved th~ ap~cllJnts under the electric light. one thing is cle,;r from the evidence, The peo~le who went to brE::uk into her house ran awayc . She could not huve seen them running JWQY before she o~ened the Windowo They ran away as .1.YvJl h~1d opens:d the Window. If this is correct then certainly th~ 1st could not heive remainc:d under the:: bright electric light so as t0 enuble·~Wl to identify themo Even a raw thief would not do what ~Wl had tried to show in her evidence. Besid8s,shG gave on,·,, d~scriptions of what clothes th~ a~;-1ellants h3d put on. rt is not even shown on rtcord how tht:: u;-1;Jellctnts were arre- stE:::do Titus Guffii:1 5th accused with whe,m the two buck1.:tts were found never Sdid th~t they_ were sold to him by the aµ~0ll~nt. The result is thctt the identification evidence by ~Wl is so w1;ak th..:.t no court should have uctE::d UiJC,n ·itc I concur with th~ submi~sions of the learned State uttorhey that the □JJ~llcnts were wrongly c0nvict~d on th~ evidence 0£ ~Wlo Consequt=ntly I allow tht::: iJ.p;Jeal, qu 8 sh. conviction i.,nd set aside the sentenceo I order that the av~ellants be rel~ased from prison forthwith unless otherwise lnwfully heldo Judge