Tumaini s/o Shungu vs Republic (DC Criminal Appeal No 143 of 1997) [1998] TZHC 2293 (10 July 1998)

• IN TEfl HIGJ- COURT CF TANZANIA

• / ~ / c 6s4 ~ v,,zwt AT MBEYA (DC) CRIMINAL APPEAL NO. 143 OF 1997 (From the decision of the Distrièt Court of Mbeya District at Mbeya in Criminal Case 'No. 280 of 1997 Before: S. Bongole - ResidentMagistrate) TUMAINI S/C) SI{UNGU • APPELLANT Versus THE REPUBLIC RESPONDENT JUDGMENT The district court of Mbeya sentenced the appellant, Tumaini Shungu to fifteen years.imprisonient consequent upon being convicted of the offence of Robbery with vio1ece, contrary to sections 285 and 286 of the Penal Code. He felt aggrieved, hence this appeal which was resisted before me by the learned state attorney for the i-epub1ic, Mr0 Boniface,.in the absence of the appellant, who had opted not to enter an appearance in court, Msafiri Mwakyusa PW1 was a . meat roaster at Mwantu bar in Mwanjelwa are within Mbeya I'Tuzicipality. The bar. belongs to Xavery Mganga PW3. On 30.3.97 at 4.00 pm PW3 sent PW1 to collect beer, PW1 decided to take that opportunity to take hia three pots and three knives home. He also had cash shs.62 1 0001 with him. On the way he came across three youngmen whose names he did not know who attaked him and took away the pots, the knives and the money. H raised ari alarm and returned to the bar. He was bleeding from mouth and facc and told PW3 that he was attacked by three young persons he did not name. PW3 immediately reported the incident to their cell leader l Nzala Mwa1rosi PW2O Accordg to P2, PW3 told him that HThrna for Tumaniel (appellant) had attacked his worker PW1. But according..to PW3, he told PW2 that PW1 wa assalted 'and, robbed by some. youngmen and. P 142 then told him he knew one of 1' youn.gn who robbed PW1 and said he would look for him and arrest him. Shortly thereafter PW2 arrested the appellant and sent him to the bar. ' a

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-2- He had threatened PW2 with a knife (Ext P2) and PW2 and PW3 took the appellant to the police station where PW1 allegedly identified the appellant by face, and the knife (Ext P2) as one of his stolen knives. PW1 sustained mouth and facial injuries (PF3, Ext P1). •PW2 knew the appellant as neighbour and one of persons under his cell. The appellant denied having taken part in the assault and theft in his defence at the trial. He! had just come from a Video show and as he passed near Mwantu bar PW2 called him and arrested him and told him he had assaulted and robbed PWI. He denied having been found with.the knife (Ext P2). The two issues upon which this appeal must stand or fail centre on the identification evidence of the appellant and the knife (Ext P2). With respect to the learned state attorney, it does not occur to me that the appellant and the knife were properly identified. First, the appellant. It was in broad daylight. But the incident was sudden. PW1 had not prepared for it. He was taken by surprise. The encounter was brief. He had not seen then before. It was difficult in those circumstances for PW1 to have priperly seen and identify, the three youngmen. The attack was by all three, thus making it even more difficult for PW1 to have concentrated his attention on any one of them. Besides, PW1 did not give any description of the appellant which could have given weight to his assertion that he identified the appellant. PW2 di'd not witness the incident. He: had not seen PW1. How then could he have known th the.appellant was involved as repo±'ted by PW3? PW1 did nt mention any name to PW3 That was what PW3 told the tria].i court. How come then that PW2 claimed PW3 named the appellant to him' It is obvious that PW2 was not a reliable witness. He had quite obviously pinned the matter on the appellant on account of some other unfavourable matter he knew about him as his cell leader. I am satisfied that the evidence of identification of the appellant a: the scene of crime was most unsatisfactory. $econdly, the knife. It was, likewise, not properly identified. It i item of comthn manufactue. It did not have special marks or featUres 0 0O ..../ 3

-3-- distinguishing it from other such items, and PWI did not point out any. There was no note on the record as to how PW1 had made the identification. It seems he identified the knife by merely saying that it was one of his stolen ones. But such bare assertion could not have been sufficient to identify such common article which could be bought from the shops by anyone. Part of the case against the appellant was that he was found in recent possession of an article which had been stolen in a course of a robbery. It was for the prosecution to prove beyond reasonable doubt that the article found with the appellant was that of the owner. This burden was not in the least discharged here. For all the foregoing reasons, I allow the appeal, quash the conviction, set aside the sentence l and hereby order the immediate release of the appellant from prison unless otherwise lawfully held. -.-

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/ B.P. xOSHI '_:•• JIJDGW

• 1 10 July 1998.
• For Appellant Absent.
• For Republic: Mr. IIangela, SA.