IN THE COURT OF APPEAL OF
AT
DAR ES SALAAM
(CORAM:
MUNUO, J, A. KAJI, J, A. AND KILEO J,A.)
CRIMINAL
APPEAL NO. 113 OF 2002
ALLY HAMISI
AMANI
SAIDI………………………………………………APPELLANT
AND
THE REPUBLIC………………………………………….RESPONDENT
(Appeal
from the decision of the High Court of Tanzania
at Dar es Salaam
(Ihema,
J.)
Dated
the 20th day of August, 2001
In
Criminal Appeal No. 22 of
2001
--------------------------------
JUDGMENT OF THE COURT:
8 & 12 December,
2006
MUNUO, J, A.:
In
Criminal Case No. 421 of 1999 in the District Court at Temeke within Dar es Salaam Dar es
Salaam
Testifying
as P.W.1, Emmanuel Jerome, the complainant deposed that on the material night,
he was awaken from sleep by gun fire. He
then heard bandits breaking the gate of his back yard and in no time they broke
and stormed into his room. Electric
light was on so he identified Amani Saidi, now the 2nd appellant,
and Ally Hamisi, the 1st appellant as the invaders, persons he knew
since 1996 because they reside at the same street. Upon raising an alarm, neighbours converged
at the scene of crime but by then the appellants had looted a radio cassette,
cash Sh. 500,000/= and assorted clothing.
The matter was reported to the police who proceeded to the scene of
crime but found the appellants had vanished with the loot they stole from the
house of the complainant. Amani Saidi
also inflicted panga cuts on P.W.1’s head and arms as well as on the wife of
P.W.1. The said wife deposed as
P.W.3. She corroborated the evidence of
P.W.3. She too was familiar with the 1st
appellant so she had no difficulty identifying him in the electrically lit
room. PW3, Joyce w/o Emmanuel stated
that Amani Saidi inflicted panga cuts on her hand and shoulder.
In
this 2nd appeal, the appellants filed a joint memorandum of appeal
contending that they were not properly identified by the complainant and that
the prosecution evidence did not establish their guilt beyond all reasonable
doubt.
Ms
Maganga, learned State Attorney, supported the conviction and sentence on the
strong evidence adduced by the prosecution.
She contended that the identification evidence of PW1 and PW3 was water
tight because the room was lit with electricity and the appellants were familiar
persons who lived in the same area. She therefore
urged the Court to dismiss the appeal, citing the case of Waziri Amani versus R
(1980) TLR 250 in which the Court held that: -
Evidence
of visual identification is of the weakest kind and most unreliable. No
Court
We
are satisfied that the identification evidence of P.W.1 and P.W.3 is watertight. One, the room was lit with electricity so
visibility was good and the conditions of identification were favourable. Second, the appellants were familiar to the
complainant because he had known them since 1996 as co-residents at the
area. P.W.3 identified the 1st
appellant because he resided in the same area and he was the person who
inflicted panga cuts on P.W.1 and P.W.3.
That being the position, the learned judge properly dismissed the appeal
for lack of merit.
In
view of the strong identification evidence on record, we find no merit in this
appeal. We accordingly dismiss the
appeal.
DATED
at DAR ES SALAAM this 12th day of December, 2006.
E.
N. MUNUO
JUSTICE
OF APPEAL
S.
N. KAJI
JUSTICE
OF APPEAL
E.
A. KILEO
JUSTICE
OF APPEAL
I certify that this is a true copy of
the original.
S.
M. RUMANYIKA
DEPUTY
REGISTRAR
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