Festo Sylvester Mbangala vs Republic (Criminal Appeal No. 76 of 1999) [2000] TZHC 488 (23 October 2000)

Kl§ 2 ~ .. .. IN THE filGH COURT OF TAf\JZA...f\JIA AT MT'l.-/ARA -17-.,,,,,._ I APPELLA'I1E JTJRISDIC 1 :I1ION CRIMIN.AL i\TPEAL NOo '76 OF 1999 ORI GII:AL CRIMINAL ,CASE NO o 364- OF 1998 01? 'l'EE DISTRICT· COURT OF MTW.::.RA AT ViTWAHlt BE1?0P-E: SoJ" AWASI, ESQ .. , SoRo MAGISTRATE FESTO SYLVESTER MBA.rt GALA., o ., ., ., a APPELLANT versus:. TEE REPUBLIC., o.,,, .. o ~ d., o "o".,,, o o .. RESPOtIDEN•I' JUDGMENT' ae.::w-.-.c..-:-,.,.._,.-.r.-.- The appellant Y£?r_r:9_Sp:J_v:,E§.i.J:@1\li9: was charged vri th armed robbery c/s 285 and 286 of the Penal Code Cap 160 He denied the charge., However .:;1.t th end of the day he was found guilty as cha:cged and was convicted accordingly,. He was sentenced to 30 years imprisonment and 12 strokes. He was a.lso ordered to refund the shs, 1,500,000/ ... he was alleged to have robbed from Shang&."'1.i BP Petrol Statione At the trial the urosecution adduced evidence to the

• . effect that on 6/10/1998, at about 8.,30 pm, when Shangani BP Petrol Station was about to close, it was invaded by two men .. One had. a gun and. was wearing either shoes or boots, a blue jean a white T-shirt and sunglasses.. The other one 1-.ras wearing a hood . ., The;y rounded up the two watchmen who were there on duty and bundled them into the of'fice of the· said Pet.rol Station -where there were ·other employees of that Petrol Station.. Those tv10 watch111e11 and the other eml)loyees were all ordered to lie face down to what they dido The one w:i. th a gun approached the accountant PWL@.Dli1:fil2!,. J0_?.J:l_g,1);;!1),Q and grabbed about 1 9 500,000/- from a table drawer. After that drama? the said tvio :t·obbers left with their loot heading towards Msanga Mkuuo The police were informed -.-;ho visited the scene and d±ew a sketch plan of the scene I Exh P1. They also sat-, some shoe marks on th ground heading towards Msanga f1kuu. Investigation by the Police threw some suspecion on the appellant who was arrested on 10/40/1998 at his home. His oooe/200•

~ .. 2 ,;,. house was searched a.'1d the followings i terns taken therefrom, that is? two jeans 9 a white T-shirt~ a pair of shoes and a hoodo .An Identification parade we.s cohduc.ted whereby those employees of the said BP Petrol Ste::tion who sei.d they were ordered to lie down, were called to identify the appellant whether he was among them .. Out of the six~ only ene PW1 AMINA d/o. LICHINGA said she identified him to be the one ,~ .... .,....., ·=-•-.,- . .,., . .,,,.<o.-,•.--.::..b-a---.=.:,•.-•-..t.::.:•-c..,, , who had a gun and was wearing sun glasses and a blue jeani She also sai.d she identified one of: the jeans taken frotn the appellant's home to be the very one the appellant was wearing. The other five said they could not identify the appellant to be among the two robbers., However some of them identified the I jean, shoes, hooc_ and the T-shirt t? be those t-1hich· the said robbers had put on.. The appellant wa.s charged with armed robberyo In his defence the appella.rtt who had denied the charge ; told the Court as to his whereabouts on the material day., He seid he left his l1ome at Raha Leo a~ about 5~30 pm for New Happy Baro While there at about 8000 pm he was joined by .Q;fNJ.iJ~..UQ$.lll, Inspector Y,ilangi and 1Ji5?~~§9.1§ fti_Q.§,f:lli]l At e.bout '10000 111 they left for .CHAMA UPENDO B.AR where they stayed till closing :nour .. On 10.,10'1998 he we.s arrested on suspecion of the said robbery and his house: searched whereby the aboYe acticles were found and taken He said they ere all his and that he used the I hood for protection against cold B.J.7.Q.. mosquitoes when he was employed by Mtvrn.ra. Port as an amd.li ar·;/ o I " After evaluating the evid.ence the learned trial Senior Resident Magistrate found the appellant guilty as charged and convicted him and sentenced him as above., The appellant was aggrieved .. Hence this appeal., In his grounds of appeal he said he was not properly identified by H-J''1 ilmina who had based her identification on the sun glasses supplied.. He also _said, his properties which were taken from his house were also not properly identified as the identifying witnesses contradicted themselves on this~ He also challenged the propriety of the fderitification parade where he was alleged -bo have been identii~ed by PW1 ,;:uninao The learned State ... '.i.ttorney Mr,, Masaju who represented the Republic at the hearing of this appeal did not support the ,I 0000/3•0••

3 conviction mainly on the following grounds:- Firstly., that the appellant was not properly identified at the scene a.s those who were present said they only saw what he was "v{earing and not his appearanceo He said the said garments t shoes and sun glasses are common articles not only here at Mtwara but throughout Tanzanie..s Secondly 9 tha.t the event its elf was so terrifying and it took so short a time the.tit was almost impossible for those who vrere there to identify the culprits~ Thirdly, that since the appellant was alleged to ha.ve put on sun glasses, it wns not easy to identify himo Fourthly 9 that PW1 "'imina did not say anywhere in her testimony that she identified the appellant at the sceneo Fifthly 7 that the prosecution ¼ri. tnesses contra.dieted themselves on many aspects as mentioned by the appellant in his grounds of appealo Sixthly 9 that fil'l.sJl7'HTJli£N -~~E. was a suspect and therefore he had some interest in the case and his evidence on the Identification Parade bad to be watched carefully especially that it (iae his evidence) was not corroborated by some other competent evidenceo Seventhly ~ that tho trie.l r1agist:r:-ate did not direct I himself properly on the defence of JUiIBI o He said a defence of 1iliIBI is enough where it raises some reasonable doubt in the mind of the Court.. 1 .rhe appellant ha9- called some policemen as his witnesseso Those policemen confirmed to have been with him although not at the time when the oi.'fence was alleged to have be,~n cormni ttedo Eightly, that the appellant was formerly a policeman and the police knei•r him very well., This. being the case the learned State .Attorney woundered as to why it took them so long to arrest him if he had really been suspected. I have carefully considered. the evidence on record, the appellant's grounds of appeal and the reply thereat by the lea--i::-ned State .Attorney, together with the overall circw..1stances surrounding this case .. The reply by the lee . .rned State. l..~torney has been so exhaustive that I find myself -w-:i..th very little to addo I entirely 0000/4000

Lj. agree with what he saido I would o:ny ,emphasize on the question of identification .. fill those at the scene said they I' could not identify any of the two robbers because they had hidden their identitieso. One.had covered his head with a hood with only small holes on the eyes The other was v,rearing sun goggles, Thus there is no dispu,te that the appellant's facial appearance was not identified: at the sceneo .At the Identification Parade PW1' .111ina could not identify the appellont by his facial appe,'.ll'ance'° She called upon the police to let the appellant weru:: sm-i goggles·., 'I'he police got a pair of sun goggles and. let the appellant w22.r it"' It was at this stage when she said he resembled with the one she had seen at the scGne carrying e. guno It is not clear whether those sun goggles resembled the ones the appellant is alleged f, to have put on at the sce,nco It would, appear Pi'l ,miina had identifj_ed the sun goggles and not -he wearero She e.J.so said she identified the appellant by his short hairo This too was not enougho The conditions prevailing at the material time were not favourable 1:or a proper identification. The event was fast and terri.fy:i.ng., They were ordered to lie facing downward. They only saw wh2,t .the culprits were wearing. This was not enougho. In the case of yli.Z:Uf_{~~~:l_.Y..§ __ :g,J.12§.9.2.!IJJL~ the Court of ..:ippeal of Tanzania held as follows:·- (i) Evidence of visual identification is of the weakest kind and most w1reliable,; I (ii) No Court should act on evidenc'e of visual identi:Cica.tion unless all possibilities of I, mistoken identity are eliminated and the Court :Lo fully satisfied that the evidence before it is absolutely watertighto ..::.Uother piece of evidence which the witnesses said, was that of shoe marks found at the scene which resembled with the shoe sole of the appell.s.nt • s shoeso But there were a lot of contradiction on thiso Some said the one at the scene was wearing black shoeso Otl1ers said he w&.s wearing boots., r Those produced at the Court were s~oeso The hood had also some contradictionso iilmost all of them said the one at the scene had holes on the eyes o But the me tendered at the Court as exhibit had no holes .. Jeans with faint blue colour end white T-shirts are very common almost every1,vhere in t.r.ds ' countryo Therefore thC?y cannot form the basis for a proper • • o/5o e . o

5 identificationo However the appellant's defence of iu.iIBI was properly rejectedo He called. 1.rri tnesses who supported him for being ·with him almost two hours a.fter the alleged crime had been committed~ and the place itself is hardly a mile from where he was with his witnesses., But, al though the d<:=fence of .. UiIBI was properly rejected, yet since there was no proper identi.fication of the appellant·t he should not have been convicted .. It is upon the a.bove reasons.that I do hereby quash the conviction fu"1.c1 set nside the sentence end compensation order. The appellant is to br:: released forthwith unless lawf'ully held :i,.nconnection with another case or cases. I•, /:1 ! ~ I ~···t ... ·i.,-,' So ,:· KAJI JUDGE Corain: ii.oAo Nchirnbi - DR ppellant - present in person Respondent - absent (S o.ilo) Judgment has been delivered this _23rd dey of October, 2000 in the presence of the appellant and in the absence of the Respondento lio ,ilo NCHIMBI DISTRICT PGIS2.1RAR 23o'10o2000a

·;_ . . ) -~ • , .. , f, ' ~t . : ' J ....... ;--,,• .' I I ..,, J J. · ... , ,· . - ; -· :-'i ... t.' ·'

..) i ·"' '' '" . ·"'- ..... .·.;. ! . ··,. .,; · .. ,· .. , ,.,., I~~(<:: . , , ,· ·.'.•' . ··.•. •.· :. •.· .. ::, . ': -~·} .' . •• •~J ... ,· . . ' , .. ,_ J.. .• I· .......... ' . l..

•, I '··:----•·;•. 1 . ,:., f :._.,, .L L-:~~: ~~ ~ .:· ,. ,.· 4;-:'..:... • .,,,), ..,""":i""' • ., \· ~.- . . .: ....... - . . . .. • C ·····-.:";" .ll-. ·,. t· t J . l .•. , l • ,', ·,.::.: . t

1 ·. .·1, 1 · ;. . ., . t ·j 1.._, I• .,.. ' . ..:J. ; ___ ... _ ..,,,. ·,, :, .. , ... .:-.,

r J ,: ( ·• ,' < . ,. ~.:i.. . ... ; ,· r.