wambura marwa wambura vs the republic 2011 tzhc 2103 19 august 2011

In t h e h i g h c o u r t o f t h e UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY AT MWANZA (APPELLATE JURISDICTION) CRIMINAL APPEAL NO 39 OF 2010 (Original Criminal Case No. 239 o f2002 District Court of Tarime ) WAMBURA MARWA WAMBURA................. APPELLANT Versus THE REPUBLIC .................................. RESPONDENT JUDGMENT. 23/6/ & 19/08/2011 SUMARI. 3 The appellant was charged with and convicted of Robbery with violence c/s 285 and 286 of the Penal Code Cap 16. He was sentenced to 15 years in prison with 12 strokes of the cane. It is from this decision that the appellant has preferred1 the present appeal. At the hearing of the appeal the appellant appeared in person and in addition to his filed grounds of appeal he contended that PW1 told l 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: As for the 1st ground that his plea of not guilty amounts to his^ innocence is unfounded. According to Mr. Sarige, plea taking jn law is a procedure to be followed when hearing of evidence commences As for the 2nd ground that identification by torch light by PW1 is t not sufficient, Tne learned State Attorney submitted that this ground lacks merit because PW2 specified how he managed to identify three culprits from 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, that there was enough light from wick lamp and torch. As for the third ground that PW l's evidence is a deceiving one, t. the learned State Attorney claimed that this ground is unfounded too because PW l's evidence is clear that he knew the appellant prior, only that he did not know his name. . As for the 4th ground the learned State Attorney submitted that 2 there is no evidence that the bandits left behind the items claimed i.e. panga, sime & torch. On the 5th ground, he was of the view that, despite the facts that PW1 said the appellant came by back, it is when they reached him that is when he identified them. As for the 6th ground that Sungusungu arrested| the 'appellant^ . ! •* 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 arresting 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 to be dismissed. 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 23rd December 2001 around 5:00 a.m. where PW1 had just disembarked 3 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 by the culprits. The culprits assaulted him with a piece of heavy metal and broke .his left leg. They got away with money Tsh.5,500/= Kshs 70,000/= artd | i bag that had clothes in it. PW1 managed to identify three 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. PW1 used to see the appellant at Tarime and Kichangani Mwanza where he was fishing but doesn't know where the appellant resides.- To start with, PW1 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 from the i light from their torches which was aimed at him, which in my view is one of the weakest evidence to rely upon. 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 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 torch light from the culprits and PW1 claimed to know the appellant by,face asj he was used to see him at Tarime and at Kichangani inj Mwanza. PW1 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 on say appearance, colour, height and on any peculiar mark of i identity. But not only that this is a fit case where identification parade ought to be conducted. 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 PW1, 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 23rd December 2011 they got information that there were culprits who invaded one business man. They traced and-found RWli.who one kodry trouser, a cut trouser with no legs and one track suit shirt with long sleeves and bicycle drawings. PW1 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 figure and the last was thin, brown and not very tall. 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' ' appellant and the 2 others took PW3 to the house of Samson Marwa Rosana where they found the alleged stolen clothes toqether with some few new clothes in which they were told were bought using the money stolen from PW1. 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 6 like the owner of the house Samson Marwa Rosana, neighbours or even ten cell leaders. We are also told that the alleged stolen clothes were taken to the Sungusungu office where PW2 who is PW l'siw ife identified;*the t i : ■ iiiMiiii clothes to be that of her husband, as she was! the one who1packed - 5, ' i‘! them and PW l 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, Pw l 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. In the case of Nasoro Mohamed v. Rep. (1967) H.C.D no. aaa the court held inter alia that " The proper procedure forcthe identification o f the property in court is that the claimant should describe\ the item before it is shown to him, so that it can be dear to the court when the item is eventually tendered whether or not he was able to identify it" 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 That being the position, the appellant's appeal is meritorious and thus I allow it. Appellant's conviction and sentence is hereby quashed and set I aside. Appellant is to be set free forthwith unless otherwise helbjipn lawful causes. A N.M. Sum flya Delivered in presence of the appellant and Miss Nchalla, learned Y&M- - . » State Attorney for respondent/republic. AtM w anza... ?$& ■ '} i'-s ■ ;-l| p 2 0 1 1 8