Nchillu s/o Mapenga & Another vs Republic (Criminal Appeal No 25 of 1999) [1999] TZHC 243 (14 September 1999)

LL CCTH :

IN THE HIGH COU OP TANZANIA AT IEYA CRIMINAL APPEAL NO 25 OF 1999 (From M•b-a1i D/Cotirt Criminal Case 7/98)

1. NCHILLU s/o laAPENGO AP4L4NT 2, PAWA s/o LUHNDE ) Versus THE REPUBLIC .... ...,.. RESPONDENT JUDGFA€NT WAMBURA,P1(EJ,): The appellants in this cae Nchiliu Mapenga and Pawa Luhende being aggrieved by th judgeiient of MbaráliDisirict Court have filed an appeal to this court on the following grounds:- That the learned trilagistrate erred in the process of: e'aluation of videñceon record iniat he did not consider the material cdn'àdictions in the testimonies of the prosecution witness, in that what was stated in court is different to the statments made to the poiic .. The alleged. stDlerl cattle were not identified by P1.1 to be his property as no c{scription were iiiade by the witnesses. There was no enO'tih evidence to show that the appellants were actually found driving the stolen cattle.. In arguing the appeal 'bn behalf:. of the appellants Mr. Mbise, Advocate, alleged that the court did not e'aluate the evidence properly for other- wise it would have acciuitted the accused as there was no evideice to clearly show that the àppe'llbnts.were the ones who tole:.these. .attle S apart from the evidence of PW,2 and FW.3 which the court relied upon. It was : is argument that it was not enough for the two witnesses :llad to merely. .•. , iat they saw the two appellants driving the cattle. in the early morning hours of 28/11/97 at Majenje village, for early morning Iours could still be closer to properly identify the persons .' V the . cattle. Iviore because they did not say at what distance were
2. , •i while talking and interogating. the accused who later ran away. / forest and whether they were in the iihway or places whieh are crucial 'oro.er identification, H' further argued that the lst appellant was àrrested.yfrom spmeone's house ....t the owner or people whoere.around during hith arrest were. ; -. iiot summone'dto state why the accused was there. The 1t appellant said he had gone to visit his rl'b±e ançi was not chaéd•nor arrested

I —2-- with the stolen cattle. Mr. Mbise further argued that the statement of P 1 4.2 and PW,3 at the Police Station and in court were very contradictory and thus could not be taken to be true but false. He did not understand why if at all the two witnesses identified all the two appellants, was the appellant arrested one 'month later with no ev"idence that he had ran away or was hiding somewhere. He thus urged that the evidence of his identification alonewas too week to warrant a conviction of him citing the cases of RASHID ALLY VP (1987) TLP 97 and WAZIPI. AML VR (1980) TLR 250 praying for, the appeal to be allowed. '' "• Mr. Mulokozi whc ràia,tod the appeal on behalf of the Republic, supported the conviction by saying the appellants were properly ient'ifie'd as' it was during morning hours and so it could not be dark more because "the'' knew the accused before the theft occured who later ran away for failing to prodice a permit allowing theth..to drive,the aid cattle from point A tp point B. Since they knew the appellants earlier Mr. Mulokozi argued that there was no need to give specific descriptions. He agreed that there were discrepancies in the statements of PW2 and PW3 but said true did so as only one appellant was arrested andt}at it the... mistake of the one takng the' statement nàre beaise the evidence was well evaluated, Mr 1 Mulokozi said there was no need f6rPW1 to identify the cattle for there no dispute that the cattle was iiot his even the appellants did not claia to the cattle He 'thus prayed that the appc1 be dismissed and the conviction and séntonbe be 'sustained for the appellaits were properly identifiod 4 In his reply Mr. Mbise argued that it is the duty of the prosecution to prove it case beyond 'easonable doubt and so there was a need for the prosecuti' to ellaborate on the*act time when they met:theappeliants.and the c'dition for in the village people start walking very èàrly ihen'attimes its 'still very dark, He raised doubt as to the fact that the witnesses knew the appellants earlier for they live iri different villages and they' did not ellaborate whê they came.. to know them. He said had they known them' they could havementioned them immediately, Mr. Mbise further alleged that" it is not the duty of the coirt to decided ' cases on mere allegations but ,on tight 'evidence. Since there.is great doubt on the identification then the benefit of doubt'should"be grant'tolthe appellants praying that the appeal be allowed, From the above arguments its abvious that the main isCues for and against the appeal are dyer the identification of the appellants and the contradictorj statements of the witnesses. Mr. Mulokozi has admitted that there was a discrepancy in the Ctatements of the witnesses :cluring..the hearing of the matter

-3- and at the police station0 ThisI believe is a very vital fact in reaching an decision. One could not be more acqurate then immediately after the event has taken place what will be said two or three months after could be an omission of what was stated ea'rlie:: but its not expected to be different0 This is more-. likely 'to be an after thought or made up story o What I want' to say here is that in such a: situation one has to be very careful before convicting a person while relying on 'such statements0 al].edged As to the issue of identification, it has beer i).... that the witnesses knew the appellants before the offence took place why then they did not mention them and have all the 'two of them arrested immediately and had the 2nd appellant arrested a month after 7 They saw the 2nd appellant ran away why did the two fail and arrest the 1st appellant. For a case where the conviction relies w}'olly descruption on identification I believe specific of the appellants was crucial and it was not enough, to xp1y say ty :n&: them earlier without stating how. I believe its the duty oi the prosecution to prove its case beyond reasonable doubt and not to rely on the weekness of the defence case. Where there is any doubt then that benefit is 'usually granted to the accused person. The doubt raised on the identification and the statements makes me at the end of the day to accordingly grant the appellants that benefit and accordingly allow the' appeal. The convictionand sentenc. are quashed and set aside. The appellaflts to be released from prison immediately unless they are lawfully held for another reason. It is so ordered. S.A C N. WAMBtIRA PRINCIPAL RESIDENT MAGISTRATE (E.J.) 1+/9/99 Appellants present in person - Mr 0 Mbise for appellants present. For respondents Mr. Boniface present. SA 0 N, WAMBURA PRINCIPAL RESIDENT MAGISTRATE ,(E.J6) 1+09D99