Augusti Laurent vs Republic (High Court Criminal Appeal No. 186 of 1989) [1990] TZHC 497 (31 December 1990)

f:.· .' ; '' fk _.·, r J ,' .,, ., ' ( IN THE HIGH COURT OF TANZANIA AT .ARUSHA. APPELLATE JURISDICTION HIGH CCIDT C:UMINAL APPEAL NO. 186 OF 1989 C/F CR. APP. NO. 220/89 . ORIGINAL CRIMINAL· C.SE NO'. )91 OF 1988 _ OF THE DIS'r:1.ICT COURT OF MOSHI DIST 1 UCT i1.T MOSHli. BEFORE N.L. M.4S•1WE, Esq, PR,INCIPA_L ⇒ !STRICT Mi\GISTR,1TE •. :.: ..... 1-i . AUGUST! UUlENT .. ~ .. -· ...... • .. . J\PPELUNT Versus ............... rmsPCNDENT, . - . SUDGMENTi Mtrnuc, J. This is an apeal from Moshi District Court Cdmin,eil cse No. 'I 391 of 1988 wherein the ac.cused ,,ugust Laurf'nt ,,,as chal'.'1;e 4 ·,.,1th h,o 6 otints: Count ,1: Count ·2: Robbery with violence c/s 285 nd 28 of the penal.code. It is alleged that on the 20/9/19<39_ at about 11.00 hours,.. . " at thf' Kilimanjaro National- .-Park:.within the Moshi Rllral District in Kilimanjaro Region 1 • :·the .ac·cused seized one . ' ... ; . i camera valued at shs. 10,·500/, ·one rac·k sack valued at shs. 2 1 600/c, one handbag valued at shs, i, 500/-=, a'!:wtbhl . vall.ed at shs. 5,600, total valued at ·shs~ 20,-200/c the property of Zander Ernest: ,Ufred and imrhdiately bfore •:"" the robbery the accused used aqtuai viblerice to the said ' ., . ~ . . ~ ._ Zap:if'r Ernest Ufred. causing him to suffer' a fractured .. right:ilg, a cu wound on· thi lft side of his. head and swelling on the left leg.ih orrtt t6 obtain and retain Grievous harm c/s 25 of. the :1;¥jnal code in that on the same date, time and pla<::.e the ··Accused _assault@d thf' said .. ·- . ' . . . ' . . : . · Zen,ler Ernest by using a ston ci_nd stb\ing him with a ' · .. ·:·· · dagge_r causing him to s uff'E>r cut wcunns on his hea1, leg . . ,;: .r. swellings on his b!)dy to wit grfe.vcus harm. The trial· magistrate struck of count.2 ~~r 1uplicity. He convicted t;he acctlsed on count 1 :as charged thereby sentencing· the the said accused tc 30 years impris_ohment. _The accused wa·s slso o ' c:,. '~. : . >, - ,,l,. : • • • : H .- > ; ; : • • ~ .-~ '. ~ ~ ... < I •· 0 'I> \ j :. ,• £ . ' " . ~- ~ ~-; ~ ~ ••. ~ ... . /2 •..•

'. ,.. __ . ·,. :, r- - \ .' " ordered to' pay shs. 20, 200/a. corpp'p:nsat icn :to Mr. Zender Ernest 1Hfred for the robbed .PrO!)erty •. e~~vi;tic,n. 1he acousd i-appealing aginst the On· 'the l/9/1988 a German ca1ied Zender Ernest /llfred and two -- 4 . ' ': ' other tourists started climbing Mt. Kilimanjaro .from the Kilimanjaro ~ ,:; National Par,,. PWl Herman Ero.min· was Mr Zender 's guide. Mr. Zender ( .·, :·: ,Ml(L!l9tnli1itmb ;t;urdhH s0 he stcppen. at Hcrombo hut. On the 20/g/88;Pwlr. OcTC'k, 1 :iat'lrctb rr.-oo a.m. the ·a9cused ambushed the~, threat6ned f .. :f. the guide· with a sword and seiep: Mr •. ZendPr 's mountainlc'ering rack I sack contiining the property listed in the charge sheet. PWl rushed j to the Kilimanjaro National ·pa·rk 'gte• to report h robbe.ry whereupon/ the prk off·ier, PW2 Charles Mmari desp;;tche<l an armed· rescue tl'am f of psrk warrkns including PW 3 a'nd PW 4. They found Mr. Zender lying on the ground wou,ded on the head and with a fractured right leg. The victim was a<lmittE'd at the KCMC where PW 5 Asst. Insp. Rampdhani Mkumbi rPcor<led his statt?me-nt Exhibit 1H Owing to his dt>teriorating conditi6ri.t: Mr Zenrl;•r ·-w,s_ fl_ol-ih to Germany fr further me:iic;:il treatment- Since PWl ide.nt ifH•-:1 the robber by· n;:imf',• PW 3 P +. ..:i +. ..:i h' +. ,,, k t.h d 1 +. t.h· . b . and W 4 .race11 and arres.e,1 1m a •. ara a , fpe ;:iys a.Pr • ere y 6harging him with the reent offence, Mr. Kinabo, lerne aivoc.':lte'subroi.tte-i thAt the BeJ"ti-f'iotif'ln· of the accused was not without doub.t, t_ht no,ssibilities of mistaken idE·ntity NA:ilsl'ed bE'Cause the su.spect·· hsd se!:lred his +'ace with red , soil to hide his id'entity and that the le,:irned ·trial ma3istrate theref'ore errE.·d in ocnvi-ctine the accusE'd on the uncorroboratc>d evidence of the single eye witness, PW l. He pointed out that PW 2 ·,i who first received the.report of the robbty from PW l gave the name of the suspect as Lau.rent Mella wi:ille· the accused's name is tu.gust! '-, Lurent, a different -name altogether 'which further confirms the misidntification oi the suspect. i Mr. Lundu, learned State Attorney supported the conviction o~ the ground that the identification of.the Sppellant was watertihi. He obser.ved that PW 1 knew the a·c:cused frcm bf:,f ore ,;ind that he ., . i ' identified him by voice, face and name thereby ebabling the park'.warc ,.: to trace and arrest him three dys later after .searching for him inte-nsivly. The r.tepublic urge>n the co11rt. to' uphold the conviction,: - sentence and compenstion order • • . . . . . . . . . . . , •• /3 ··ftt. a',:,.,;1:. ••••

..... 3 ...... There is no rlisoute that an bandit at'mei 1,1ith ~ S'·•trd .rimbuhe-' Mr. Zender and PWl as they were returnine to the Kilimanje.r.n N-tionl Park Gate from the Horombo hut on the 20/9/1988 at P.bout 11.00 a,m. There is also no dispute that Mr. Zender was wounded on his hea~, and his right leg was ractured when the armed bandit Bttaoked and robbed Mr. Zend1:-·r 's rack sack when the guide rushed to report the robbery at the Kilimanjaro National Park gate. There is furthermore no dispute that the armed robber seized thi property listd in the charge sheet from the victim, Mr. Zendc'r• The \only issue is whether PWl properly identified the ace used, Two factors marred the identification of the accused in this easel One, his face was smeared with red soil commonly known as "Lukaria 11 to hide his real idPntity; two, PW2 Charles Mmari, the Park Officer who first receiVEd the robbery report from thP Single eye witness Herman Eromin stated that the lnter. named the ~~r.S'!Ec>~ as Laurent Mel-la. There is no evidf"nce on the record of the trial court to show _that .Laurent Mella is the same person as the accused August Laurent~ There ·/ is n9 '3lternativ~ but to res0lve these discrepancies in i~ ~~vour of the accused because without watertight identi~ication his guilt cannc.t · be said to h:we been establishe•d beyonri c1ll re3srnabli:> oubt, UniiPr thE' circumst.,,mc€·S the apr,eal is c:1llc-1-•e1. The accused is to be set at liberty "'crth,;,ith unless he is otherwise held for other lawful caps. It is so Ordered. E. N. MUNUO, J U D G E. · 31/12/1990. At Arusha this 31/12/1990. Appellant: Mr. Kinabb, advocate for Republic: Mr. Kimomogoro, State Attorneyo ENM/v111 E.M:. MUNUO, JUDGE. 31/12/1990.·