Tumaini s/o Shungu vs Republic (DC Criminal Appeal No. 143 of 1997) [1998] TZHC 2404 (10 July 1998)

r IN THE HIGH COURT CF AT MBEYA TANZANIA C-ff;.) C ~ I Yiu (J (DC) CRifiINAL APPEAL NO. 143 OF 1997 . b•!;A-Lrv1 (From the decision of the District Court of Mbeya District at Mbeya in Criminal Case No. 280 of 1997 Before: s. Bongole - Resident Magistrate) TUM.AINI S/0 SHUNGU APPELLANT Versus -THE REPUBLIC cooc,,,.,. :toaoooeooeeee RESPONDENT JUDGMENT The di.strict court of Mbeya sentenced the appellant, Tuma:ini Shungu, to _f_ifteen years impriom:nent consequent upon being convicted of the offence of Robbery with- violence, 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 He~ublic, Mro Boniface, in the absence of the appellant,, who had opted not to enter an appearance in court9 Msafiri Mwa.kyusa PW1 was a meat roaster at Mwantu bar in Mwanjelwa are-·, within Mbeya Municipality. The bar belongs to Xavery Mganga PW3. On 30.3.9,..., at 4.00 pm PW3 sent PW1 to collect beero PW1 decided to take that opportunity to take hie three pots and three knives home. He also had cash shso62,000/= with him.· - On the way he .came atross three youngmen whose names he did not know who attacked him and took away the pots, the knives and the money. raised an alarm and returned to the bar. He was bleeding from mouth and fact· and told PW3 that he was attacked by three young persons he did not name. PW3 immediately reported the incident to their cell leader, Nzala Mwalcyosi PW2o Accord.ing to PW2, PW3 told him that 11 Tuma: 1 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 PW2 then told. him he knew one of ·r youngmt1n who robbed PW1 and said he would look f'or him and arrest him. Shortly thereafter Ph'2 arrested the appellant and sent him to the bar. l

2 H~ 1:a.d threatened PW2 with. a knife (Ext P2) and PW2 and PW3 took the appellant LO 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 f"•'ial injuries (PF 3 , ·Ext P-,). PW2 knew the appellant as neighbour and one o' porsons under his cello 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 PW1o He denied li..aving 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). W:i.th 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 da;/lighto But the incident was sudd&n. PW1 had not prepared for it.· He was taken by surprise. The encounter was brief. He had not seen them before. It was difficult in those circumstances for PW1 to have pr-,perly seen and ici.entify the three· youngmen. The attack was by all tf'!...ree, thus making ,it even more difficult for PW1 to have concentrated his attention on any one of them. P.esides, PW1 did not give any description of the appellant which could have given weight to his assertion that he identified the appellant. PW2 did not witness the incident. He had not seen PW1o How then could he have known t:-_ the appellant was·· involved as reported by PW3? PW1 did nl"lt mention any name to PW3. That v,as what PW3 told the trial court. How come then that PW2 claimed PW3 named the appEHlant to him"? It is obvious that PW2 was not a :rdiable witnesso He had quite obviously pinned the matter on the appellant en account of some other unfavourable matter he knew a1,)out him as his cell leader. I am satisfied that the evidence of identification of the appellant c,c the scene of crime was most unsatisfactory. Secondly, the knife. It was, likewise, not properly identified. It ,.,- - E 1 item of comm~p·manufacture. It did not have special marks or features o,Jooo'ooo:/ 3

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• 3 - distinguishing it from other such items, and PW1 did not point out anyo There ,,ro.s no note on the record as to how PW1 had made the identification. It seems he identified the k!life °b'J 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 anyoneo Part of the case against the appellant was that he was foW1d 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 foux1d 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., and hereby order the immediate release of the appellant from prison unless otherwise lawfully held. AT !1BEYAo ----·-- ... - .. -- I.": • • ' ;, .. ; ...... ~ ' :-. --~ .. _ \ -/ . .1, .;. ·~ .\·;.:':. -~-,· ... ·: · . :. 10 ~uly 1998. For Appellant: Absent. For Republic: Mr,. Nangela, .SA., JUOOE.

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