Amiri Mussa v. Republic Cr app no 172 of 2003 (robbery with violence)

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

(CORAM:             LUBUVA, J. A., KAJI, J, A. , KILEO, J, A.)

CRIMINAL APPEAL NO. 172 OF 2003

AMIRI MUSSA…………………………………………………………...APPELLANT

VERSUS

THE REPUBLIC…………………………………………………..….RESPONDENT

(Appeal from the decision of the High Court of Tanzania

at Dar es  Salaam)

Ihema J.

Dated 8^th day of September, 2003

in

criminal Appeal No. 94 of 2002

……………………………………

5^th December, 2006 &

JUDGMENT OF THE COURT

KAJI, J, A.:

        In the District Court of Temeke, in criminal case No. 448 of 2000, the appellant, Amiri Musa, together with one Bakari Hamisi Mchapanya, were jointly charged with and convicted of the offence of robbery with violence contrary to sections 285 and 286 of the penal code. They were each sentenced to 15 years imprisonment.

        The facts of the case may briefly be stated as follows:-

        On 2/2/2000, at about 7 p.m, PW1 Victor Mango, by then schooling at Forodhani Secondary School in Form IV, was on his way home coming from attending tuition. He had his school bag containing some exercise books and some school equipments. Suddenly two youths emerged and grabbed the school bag. PW1 resisted, whereby one of the two youths who was armed with a bush knife cut him on his right elbow. PW1 released the bag. The assailants opened the bag and found nothing useful to them. They threw it back to him. PW1 claimed to have identified the appellant to be one of the assailants through the light of a moving motor vehicle. A witness PW2, Gamba Machumu, claimed to have witnessed the assault.

The appellant denied to have been involved. He was however convicted and sentenced as above. Aggrieved he appealed to the High Court where, on first appeal Ihema, J, dismissed the appeal on the ground that, the appellant was properly identified at the scene of crime.

        Still dissatisfied the appellant lodged this second appeal. In his memorandum of appeal he preferred two grounds of appeal which basically boil down to only one ground, that is, identification.

        Before us he appeared in person. The respondent Republic, was represented by Ms Kabisa, learned Principal State Attorney. The appellant vigorously contended that, PW1 and PW2 did not explain how bright the light was which enabled them to identify him. He pointed out that in order to clear out any doubt about his identification, an identification parade ought to have been conducted especially because PW1 never knew him before.

        On the other hand, Ms Kabisa, learned Principal State Attorney, contended that, the appellant was properly identified by PW1 and

PW2 through the light of the moving motor vehicle and road electric light, and that PW2 knew him before as they were neighbours.

        There is no doubt that the crucial issue in this case is that of identification, that is, whether the appellant was properly identified at the scene of crime. Both PW1 and PW2 claimed to have identified the appellant through the light of a passing motor vehicle. But none of them explained how powerful or bright the light was, and whether it was beaming in the appellant’s face, and whether the motor vehicle was moving fast or slowly. With these questions unanswered, in our view, it would be unsafe to hold with certainty that the appellant was properly identified, especially by PW1 who said he never    knew the appellant before the incident. PW2 claimed there was also electric light by the road side which however was not mentioned by PW1. Even then, there was no description given as to how bright it was. It is in the record that PW2 knew the appellant before the event as they were neighbours. But it is our view that, where there is not sufficient light, it may not be so easy to identify a person even if he is a neighbour. Where an offence

is committed at night, description of light is very crucial to determine whether or not the conditions of identification were favourable for a proper identification. There was none in this case. In that respect it would be unsafe to hold that the appellant was properly identified. The benefit of doubt must be resolved in favour of the appellant.

We note from the record that on first appeal Mr. Mlipano, learned Senior State Attorney, had not supported the conviction on the ground of doubtful identification. This, we think, on the evidence was the proper course to take in which, as shown earlier, Ms Kabisa, learned Principal State Attorney, took a different view.

        Before concluding this judgment we wish to make one observation. The offence was alleged to have been committed by more than one person, armed with a panga. Under section 5 (a) (ii) of the Minimum Sentences Act. Cap 90 E. R. 2002, had the conviction been sound, the sentence ought to have been not less than thirty (30) years imprisonment. Section 5 (a) (ii) provides as follows:-

If the offender is armed with any dangerous or offensive weapon or instrument or is in company with one or more persons, or if at or immediately before or immediately after the time of robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to imprisonment to a term of not less than thirty years.

However, as observed earlier, as the evidence on identification of the appellant was not watertight the conviction cannot be sustained. Therefore it becomes unnecessary to well any further on the propriety of the sentence that should have been imposed.

Accordingly we allow the appeal, quash the conviction and set aside the sentence. The appellant is to be released forthwith unless otherwise lawfully held.   

DATED at DAR ES SALAAM this 27 day of December, 2006.

D. Z. LUBUVA

JUSTICE OF APPEAL

S. N. KAJI

JUSTICE OF APPEAL

A.   KILEO

JUSTICE OF APPEAL

  

I certify that this is a true copy of the original.

S.M. RUMANYIKA

DEPUTY REGISTRAR

View other posts for your benefit...