20110819 TZHC Mwanza

N THE HIGH COURT OF. THE UNITED REPUBLIC OF TANZANIA IN THE OISTRICT REGISTRY AT-MWANZA (APPELLATE JURISDICTION) CRIMINAL APPEAL NO 39 OF 2010 . . (Original Criminal Case No. 239 of 2002 District Court of Tarime) WAMBURA MARWA WAMBURA ...................APPELLANT : 1 ,i., .' Versus ! ,· I :•- •l l . I I_\\ •I, J · \ ' · ! . 1 ,I :1 il!il .JUDGMENT. ·23161&19/08/2011 SUMARI, J The appellant was charged with and convicted of Robbery with I violence c/s 285 and 286 of the Penal Code .Cap. 16. He was • sentenced to 1~ years in prison with 12 strokes o~!Tr c~t: :, :ffitil ·. 1 •• ~ It is from this decision that the appellant -~~s preferredi ;1th!e ' . present appeal. . . At the hearing of the appeal the appellant appeared· in person and in addition to his filed grounds ~peal he contended that PW1 told . ...,: ... . 1 ., II ·]: , •"l;o. 11 the ·court that he identified him as his co-businessman and that PW2, - identified only the 7th accused. He prayed his appeal be allowed. The Republic was represented by Mr. Sarige, learned State Attorney who supported the conviction on reasons that: I • As for the 1st ground that his plea of not guilty amo~rnts. ~o· :h:i~ ) .: ) ; innocence is unfounded. According to Mr. Sarige, ple.:i l,iki~b 1n lal,\f;jfj!li is a procedure to be followed when hearing of evidend~)c~~r+ien~e~J,\(i! ' . • ' I! l, • ~ . As for the 2nd ground that identification by torch light by PWl is · not sufficient;. learned State· Attorney submitted that this ground lacks meri.t because PW2 specified how·he managed to identify three culprits f~om the scene of crime and that torch light is proper for identification as held in the case of Shigi v· Republic ·Criminal Appeal No. 71/2004 (Mwanza Registry) unreported by CAT, l that there was enough light from wick lamp and torch .. '. \ I . , .! i · · , , •. :· · ·i-1· I . . I , I · 1 ·\:1 ,1,1: ,· ! As for the third ground that PWl's evidence is. a:tdJcei~ihg! . . . .... 1 ,,i; ;I '·I . ;dh~Jl:!l\11 I · ; ' 'I •'1 , ,:I:\' I, !I: • I, •~! • • + • '. ' + I the learned Stat_e Attorney claimed that this ground is unfounded too · · !i · because PWl 's evidence is clear that he knew the appellant prior, · I I only that he did not know his name. As for the 4th ground the I ~ ~tate Attorney submitted that 2 ..... ;: I ,· • I . . I ' i .i I·.: . ; . I:. : .I J ii ·' ~'. ' - ·.- ' i. ,, there is no evidence that the bandits left behind the items claimed t~/ i.e. panga, sime & torch. · . . . On the 5th ground, he was of the view that, despite the facts that PWl said the appellant came by back, it is when they reached him that is when he identified them. ; " '! ! ri )i:i ! i . ;: ,• :: 1 •. : : • . As for the 6th ground that Sungusungu arrest~~;Jhe a~Je11abtjJ~i ·; m · i· ~i • .;:-: : the bar, it is. submitted that there was no need for the ·people from the. bar to testify as nothing caught with the appellant to force any need for them to testify. As for the last ground that there was no search warrant produced in evidence, the State Attorney submitted that arrest\ng people do not have in their possession search warrants and it is not true that there were no village leaders. The truth is that the village leaders ' ' were there but did not testify. He concluded by praying this appeal ,· ·1 I! '·1 ! ;:: ..+i •i1,I ;,l!ii 1-· to be dismissed. } 1' I · 'I I : ·•!! ::li!I I : ,1·; : :, : ,,i; I ', ·! '"! ' . The main ·issues to be determined in this appeal are identification and doctrine of recent possession. From the brief facts of the case we are told that it was on 23 rd December 2001 around 5:00 a.m. where PWl had just disembarked lik- I 3 I•. :i . a bus from sirari customs office to Tarime and was walking towards his home. Upon reaching a place called Magamaga seven people appeared from behind with torches aimed· at him· and ordered him to . . . stop. He refused and started to run away. They chased after him and rounded him, finally he was apprehended 6y the ·culpr:its. The culprits . . . ! ,. . ' :·· l' assaulted him with a piece of heavy metal and b'roke .his ,'I~½ leg. They got away wi_th _money TSh.5,500/= Ks~~lto,i~~=,;i :1,n~:~r J~g · that had clothes r_n rt. PWl managed to rdentr,fy ·~hree out:· of the seven culprits from the light of their torches. One being. the appellant in this case as he was familiar to him by face. PWl used to see the appellant at Tarime and Kichangani Mwanza where he was fishing but doesn't know whe·re the appellant resides.· To start with, PWl did not clearly elaborated on how ·he managed to determine that there were seven robbers coming from behind him, he claimed to have managed to identify the appellant fr~:Hn the , •' :. I , . i 1-:!-1 . light from their torches which was aimed at him, wHich iii my\i~.w'i is ,:, 1• l I ; ' I . . ' ·•1 '!I'll one of the weakest evidence to rely upon·. i1::: 1 I ·l : ,.· Hi.!:!1: , ·. • .; 1; ' ' • ~ •: ~~: : I The learned state attorney cited the case of Lukubi Shigi v . - Republic Criminal Appeal No 71 of 2004 (Mwanza Registry) unreported CAT, stating that it was decided in this case torch light is proper for identification. 4 i . \ With . due respect .to the learned State Attorney, the cited. case is distinguishable -.... . to the· case at hand. .In the .cited case . there were three sources of light, that is, full moonlight, wick lamp and torch light. Also the witnesses were familiar with the accused as they were bloody related. In our case at hand there was only torich l_ight frqrn the culprits and PW1 claimed to know the appe!JJ.9t ~y;f~Ce ?~;i~ I' was used _to see him at Tarime and at Kichangani /:0 •~w~h,*a'. :: I. 1 1 • ,U\ ,:l!\.\1 ·r . - .• ' PWl who · was the only .eye witness did not give a detailed -: description of the culprits as it was held in the case of BUSHIRI :· AMIRI v REPUBLIC 1992 TLR 65 that witnesses ought to have given a detailed description of the :appellant to the persons to whom they first reported about the theft before they had a chance of seeing the appellant after he was arrested; the description would be . . i on say appearance, colour, height and on any pecunar mark of . ; . 1,, ;i i I identity. But not only that this is a fit case where identificati.o·h ·t. i ' . parade ought to be conducted. :;},:j !I;,,;\_. ·rtf]l'i ·i!:\·l :\ ;! I "!: i fl ):I PW1 in his evidence stated that he gave the Sungusungu and Police descriptions of the people he ,. has identified but he did not _ disclose what kind of description taking into consideration he did not know the name of the appellant. It is on PW3's evidence that he mentioned the details which were given by PWl, this evidence becomes weak as it is hearsay. 5 . ' On the issue of the doctrine of recent possession it was said by PW3, a member of Sungusungu group that in the· early morning of . ·• rd 23 December 2011 they got information that there, were culprits . : ', . 1·· '' - ~ho invaded one business man. They traced ai:,ctHfot!Jnd :P.w.1ij:Who • . .' . 1 told them he was robbed . a brown bag with .sOm~!,J1bt~~JiJh,ici~;~~·ij~b !,:::1- I ~ ' I l ,I. 'I': I. :~,1 ,.. !~ ·. ; . • . . ~ ·~; i : : .• ' ! ~ at .. one kodry trouser, a cut trouser with no legs and''O'~e :tratk ' . . sliit/:$~frt . .. with long sleeves and bicycle drawings. PWl told them he managed to identify three out of the robbers by face,· one was brown in colour with sizable body weight, the second was black with an ordinary figpre and the last was thin, brown and not very ta IL It is from this description that PW3 together with fellow Sungusungu members managed to apprehend the appellant and two others at mweisiko bar on the same date. After interrogation,. the . . : !; .. i' ;:: ; i appellant and the .2 others took P~3 to the hou~,~Jf ~arr?? ~~;,a 1 • Rosana where they found the alleged stolen c1~r1es1t~geth~~M~h ' !• • · I . I .I . · some few new clothes in which they were told were bought using the money stolen from PWl. Looking at this aspect, the alleged stolen properties/items were found in the house of one Samson Marwa Rosana in which it was alleged the three suspects stayed together, · there was no independent witness who was called to testify about this allegation ~ - ., i ,,. ! ,': ··:;i : ,.,. f·-~ '' ·,;' r'.:1•.. , :t, 'I I ' like the owner of the house Samson Marwa Rosana, nelghb.ours or even ten cell leaders. · We ·are also told that the alleged stolen clothe's1. .'_were ' tak~n ; ' to- ·,1 • the Sungusungu office where PW2 who is PW.;t_,:s~wjfe~;i~~~ti ~\f~;lllth~ · ,l,:,\Le ,\ i.i \ .,,. IJJ\ j~ I 1 clothes to be that of her husband, as she was!,\ttfji:e qne wlr\b lp,a:~*e~ 1 ' , ' \ !ij·r, •I I ~ '. , I .. ~ : I • .,1 ..... ,. I j ~: t' '."! 1 them and PWl was also shown the stolen clothes and identified them to be the ones stolen early that day. The procedure used therefore was wrong. The proper procedure for the identification of the property in court would be the witnesses, Pwl and 2 to first describe the items before were shown to them, so that it can be . . clear. to the court when the items eventually tendered whether or not the witnesses were able to identify them. 'I In the case of Nasor<> Mohamed v. Rep. {i967) H.C.D .'no. • . I· I · l,.'f ·: -~·11·' . I l I . I ., j ' . ,., • ' 445 the court held inter alia that :- " The pr;~p~r P,rosedu~e, {o~_i\;lthe '1 · ;j:)\· ,ti: ; l 1: I I I~ ill I- . l . 1 11 : IJ l identification of the property in court is that the c/aima1~ shf?uld descripe(fhe • I 'I ·, • It • i ' item before it is shown to him/ so that it can be clear to the court when the item is eventually tendered whether or not he was able to identify it"~ r, As we can see this was not the case in our case at hand PW1 and PW2 · had- a chance to see· the alleged stolen clothes at the Sungusungu office before the same were tendered as exhibits· in court ~ 7 ; ..,. .. ..~ •· ,,. ! ;1::;_,::::_:_·,·:'·~/~?i'. "TJ That. being the position, the a_ppellant's appe·a1 is meritorious and thus I allow it. .... AN.M. SuVIA.CIYt I t1J) c;:; 6 -.J Delivered in presence of the appellant and Miss Nchalla, learned ;; I ,., j ' i:;,J' .8 I • t '" ... ·!'.