Nchillu s/o Mapengo and Another vs Republic (Criminal Appeal No. 25 of 1999) [1999] TZHC 277 (14 September 1999)

.. IN THE HIGH COURr OF Th.N:Z.ANIA AT Iv.J3EYA CRIMINAL AJ?F0.:AL NO. 25 OF 1999 (From Mbarali D/Court Criminal Case ho. 7/98) 1 ~ NCHILLU s/o t.lAPENGO 2. PAWA $/0 LUHiNDE ) ooeoooooeooooo Versus APPELLAWi:S .• THE ffEFUBLIC • o c .• O O <> o O o O O O O o ~ O C O O O O . O O O O RESPONDEI'l'T JUDGZM"S1"JT Wf,MBUHA2 Pt(E:>Jd: 1,.he appell~.rits in this case Nchillu Mac,enga and Pavia Luherio.e being ·• . ggrieved by ths judgement of Mbarali District Court havE: file'd an apj:Yeal' , to this court ori the following grounds: 1o That the learned triul magistrat~ erred in the process of evaluation of evidence on record in ih.D.t he did not consider the material contra(:lictions in the testimonies of the prosecution ·. .. witness, in that what was state.d in court is different to the statements made to the policeo 2. The alleged st·:)len c·att,lf) :wel'<;J :n,bt identified by PW.1 to 'be h1s· · property as. no description w.er1:: made by the witnesses. ·· 3~· • T·here; vi£ no enugh evidence to show that the appellants were . , :i. ac'·euilly ·found driving the stolen cattle. '. :.f/P In arguing the appeal on behalf of the appellants Mr. Mbise, Advocate·, alleged that the court did not evalucl.te the evidence properly fdr-othe:r-- wise it would have acquitted the accused as there was no evidence to clearly show that the appellants were the ones who stole these cattle apart from the evidence of PW o2 and h! •3. which the court relied upono It was - .is argument that it was not enough for the two v1itnesses to metely J,.~~(); 3 l.1at they saw the two appellants driving the cattle- in th; .,early morning hours of 28/11/97 at Najenje village, for early morning hours could still· be closer to properly identify the persons d:Fivin, the said cattle. Hore because they did not say at what distance ., .. -,y were . . · -. while talking and interogating the acc1J,sed who Lotter / \ f § . a,nd ,1hether they i,11ere in the iiighway or ores 9lac:e~- :1hich I ran away. are c·ruial He further argued that the 1st app~llant was arrested from someone's house yet the owner or people viho were around duping his arrest were not summoned to state why the accused was there. The 1st appellant .. $aid he had gone: to visit his relntive a.'1.d was not ch?sed nor arrested . e,. . l : ', coo.oo•/2

• 2 - with the stolen cattle. Mr., Mbise further argued th:J.t the statement of PW .2 and PW.,3 at the Police Station ruid in court were very contradictory a..."'l.d 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, ·-Wa.s the appellant • arrested one month later with no evidence that he had ran away or vfaB hiding somewhere. He thus urged that the evidence of his identification alone was too week to warrant a conviction of him citing the cases of ~~l.12,LX . .VR ( 1987)'fR 97 -- JNI v:g_J.:!.9?0) TLR 250 pray'ing for the appeal to be allowedo Mr. Mulokozi t-1,l:].,; r!IS'j,litcd the app0al on behalf of the Republic, supported the conviction by saying the appellants were properly identified as it was during morning hours and so it could not be dcJ.rk more because they knew the accused before the theft occured who later ran away for failing to produce a permit allowing them to drive the said cnttle from point A to point B._ Since they· knew the nppell&,ts earlier. Mr. Mulokozi argued that there was no need to 6 ive specific descriptions. He agreed that th0re were discrepancies in the statements of PW2 ancf PW3 but said true did so as only one appellant was arrested anc-:. that it was the mistake of the one taking the statement more because the evidence wo.s well evaluated. Mr. Nulokozi said there was no need for PW1 to identify the cattle for there L.-:'.. no dispute that the cattle was not his even- -the: appellants did not clai!:, lai:til'G to the cattle,. He thus prayed the,t the appE:1 be dismissed and-: ... · .--: the con•.riction and senten·ce be sustained for the appellants were properly identifi<)d. L1 his reply Mr. Mbise argued that it is the duty of the prosecution to prove it case beyond reasonable doubt nnd so there WM a need for·the prosecution to ellaborate on the exact time when th'ey met the appellants and the condition I . for in the village people start walking very early when at times rts still very ··-·, He raised doubt as to the fact th,::ct the witnesses knew the apeilants ear .ner for they live in different villages and they did not ellaborate wh they came to know them~ He said had they known th'em they could have mentioned -them immediately,. Mr~ Mbise further alleged that it is not the duty of t}:ie col,rt to decided . great cases on mere allegation.s but on tight evidence. Since .there is ;;l / doubt on the identification thert the benefit of doubt ·should be grantee. to the appell~ts praying that the appeal be allowe'do • From the 2..bove arguments its abvious that the main issues for c:L"'l.d agninst the appeal are over the ident:i.fication of the appellants ~d the contradictory statements of the witnesses. Mr, Mulokozi has admitted that there was a .;;. f. . -, ;. . . " :·.-. - discreponcy in the statements of the witnesses during the 'hearfhg of the matter':!' ,. •' ·. ~;:_.

... 3 - and at the police station. This I believe is a very vital fact in reaching any 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 earli0: but its· not expectd to be differento This is more- likely to be an after thought or made up story. What I want to say here is tat in such a situation one l':J.as to be very cai•eful before convicting a person while relying on such statements o alledged As to the issue of identification~ it has beer: -1). :: that the witnesses knew the appellrui.ts 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? They saw the 2nd appellant ran away why did the two fail and arrest the 1st appellant. l"or a casE: where the conviction relies wrolly . . descruption ~ . on identification I believe specific ·-;•'}1 · L _ J • of the appel.Lants was crucial ·' and it was not enough to simply say r."i-.3j' ;-:~c·,r them earlier without stating how. I believe it.3 the duty 01 the pros-2c.1.tion 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 conviction and sentenc · . are quashed and set aside. The appell2.nts to be released from prison immediately unless they are lawfully held for another reason. It is so orclered. .1 ·, .. :··:_: .. {'"" . ~- s .A.N.. WAttiBURA PHINCIPAL RESIDENT MAGISTRATE ( E.J.) 14/9/99' Appellants present in person - Mro Mbise for appellants presento For respondents Mr. Boniface present. S.AoN• WAMBURA PRINCIPAL RESIDENT MAGISTRATE (E.J e) 1409.,99 •,