Boniface s/o Siwinga vs Republic (HC Criminal Appeal No. 9 of 1998) [1999] TZHC 355 (10 September 1999)

,. /· A'l 1 hBli,"IA mmr Cvfft·/i .cnrt·;INAL APPEAL NO.· 9 OF 1998 ( Crigial Criminal Case No. 37 of 1997 of t 1 1e District Court of lj.bozi District at Vwawa Before J .L. Lupenza - Senior D/Magistrate) BONlFAC}!; s/o ShJINm-iA ()0Q(Jl)OOt,:O:. ),}0 APPELLANT ·: Versus THE EPUBLIC I?ESPONDENT JUDGl-tEi'JT 'i 1 he appellan, Bq.niface Siwingwa, ar1d five other persons, Jacob Harko, Stiv_en Ledso~, Alfred Mwaikulia, Emmanuel Simoni, and ifosi Yatilinga, were jointl:Y:3/'raigned before the district court of lbozi dist::ci'ct at Vwawa as • the Ki:S.t_3.-S, ;s.cfl.Ch _-t;}1}..<!, .f.O.½!:.t1l, _fi_f_E}~ and s..:>e.t_ accused persns respectivelya on a chc1Fge of .Armed robbery, rontrary to section_s 285 and_ 286 of. the Penal Code. They all ple.aded not guilty to the charge and a trial ensued. 'l 1 he third, foUJ.th, fifth . and 1;dxth accuseds were found to have no case to ans'ler and acquitted under section 230 of the Criminal F-ocedure fi.ct 1985. The appellant and the second accused, Jae.ob Marko, were. convicted as charged and each sentenced to the.statutoryrninimum.imprisonrnent term of thirty ··1.·.: ' years. ·rhe conviction. and. sentence. a 6 5rieved the appelio.nt, · .hence this ' # •• appeal VJQ.i'ch is urmesisted by the .Ri).Ul;>lic, and in which the appellant entered an, appearance and told .tJ1i:9 court tht h,e abided by the contente . of his rnemorandUiil of appeal. T.he a:9pellant· was a. ver.y familiar person at the household of Luchoma ... ~ Kungu ( F.,J7) o He was knovm by appearance and name o He had worked as a herdsmall at the. ho.use of PW7 for a very long time. PW7 said the appellant . .,.~~""'..'.., . ._., -, -.. . & . grew up: at his house o • . 1'h ..P,wting, however, had not been pleasant to the appellant. 'l'ne appell·ant wante.d a cow a.s a parti:r;ig gift but he _was given a bull instead. 'l'his did not please h:j_m. But after the parting; the appellant continμed to: make frequent visits to the house of PW?. He wa.s a fell~w 0000fl000C:000 /2 I

2 - villager. 'the son and neighbour o.f PW?, 1'helathin Luchoma (PW1), said he used, and continued, to walk and drink with the appellanto . During the night of 23o3o97 at about 9.00 pm the male children of PW? Wf?re having their evening meal outside the houseo · 'l'hey included Nyungu Luchoma (P'J2), i.\Jasanja Luchoma (PW3), and--Msusa Luchoma (hJ6). 'I'he then herdsman, Le•mq;d Tenson (PW5) 1 was also thereo Sleeping in the house with a sick child was the daughter of PW?, Sai Luchoma ( PW4) o F;J1 was asleep in his house o PW7 was away at Mshasha Village attending a funeral. Outside the house there was moonlight and a burning lampo Suddertly a group of thugs holdiitg a gun, pangas and clubs appeared. PW2, .PW3, Pw5' and, Fl-16 saw and .re·cognized the thug hoid.ing the gun as the appellanto The appellant fired some shots in the air • I and asked PW2, PW3, PW5 and PW6 to raise'up their hands. 'l'he appellant held them under.guard threatening to use the gun while the rest of the thugs broke into the house to steal. The gun shots awakened PW1 1;1ho we·nt there and saw the appellant with the guri. PW4 was also awalcell.ed and saw the appellant outside tl1e house with the guno The thugs made' away with an assortment of properties of PW7 valued at shs.804,000/=• '.l'he incident was promptly repor.ted to the . . ' Village Executive Officer to whom the appellant was nained with the result that t:pe appellant was arrested by militiamen the following day who took him to Kamsamba Police Station. In his defence the appellant_clairned that he was sick and asleep at his house,p,.t the material time of the offence. However he surnmoned a witness, 'r'iarl<Q 'l~adeo (D\13), who told the trial court that he had been drinking pombe witμ the appellant on the .-11aterial day (23._3.97) at the J.ocal pombe shop from 12. 00 noon to cL 30 pm '..vhen they parted. ·,. 'l'he evidence implicating the a},pellant with the offence was entirely •Of visual identification 2..nd the law requires such evidence to be absolutely (1980) TLR 250 (C.A.). 'i'he learned state .attorney, Mr. Boniface, declined to "' support the conviction of the appellant on the sole ground that the identification evidence lacked details such as the despri:ption of the appellant, /3

..... l 3 his attire, end so fortho The trial Ma.,;istrate was fully aware of this aspect (1982) 'l'Ll-1 122, \•,hereby it was held that it was u:1safe to support the co!wiction of the accused where the eye witnesses:· id.entification was not accompanied by detailso In that case there was moonlight and illuminating fire a.11.d the iclenti~ fying witnesses had seen the c::cccusecl walking a•;;ay from tl1e scene . . . of crune wi tn his back side turned to them. The circumstances in this case were, however, different~ 'l'here was moonlight and glowing lamp• The six identifying witnesses were very well' known to the appellant with whom they had lived for a long time. '.i:he appellant was unmaskd ~ and the witnesses came face to fac with hii,1o Apparently the appellant was the leader of the group, and he talked to the witnesseso F'our of the identifying witnesses stayed with, and. were under the custody of, the appellant at the scene of crime for a considerable time. In all the circumstances, therefore, the identifying witnesses had a good opportunity to properly identify the appelle.nt o 'l'he defence was certainly a 1ieo The appellant 1 s owi1 witness (DvJ3) indicated that the defence was a lie. It was properly rejectef.1 by ,he trial courto With respect to the learned state attorney, I am satisfied, as was the.trial court, that the evidence of visual identification at the scene was absolutely watertight and that it left no AT ;, .. .... f,. t. . .. · ~ ~ ,!>· ... \ ... ~~ . I'·iBEF~it, "-. For i,ppellant; Present o :?or :Uepublic: \vlro Boniface, S.A. JUDGE I~~-.. J+i .... /< DIG'I'RI C'l'· . RE'GIST:?JIR. ,. '. . .,,. ,'Y· _I ~ • .;·