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. v /. . .., ·IN THE COURT OF.APP.EAL OF TANZANIA ATMBEYA .. / . (CORAM: MROSO, J.A., NSEKELA, J.A., And MSOFFE, J.A.). · CRIMINAL APPEAL NO. ~6 ·0f= 2003 . . .· ~ . ·.BETWEEN··. · sADw1N Ko MBA@ sAtto~ ....... : .... .-..... .. . . . AND· . . uo~ .................... ~ ..... APPEL~NT · (Appeal f~om the Judgment of the High .·. :. Court of Tanzania at Mbing.a) , (Manento, J;) .· .· · datedthe 10th day of Septemb.er, 2002. · . ·in . Criminal Sessions Case No. 16 of 2001 JUDGMENT OF THE COURT NSEKELA, J.A.: The appellant, Badwin s/o Komba @·Bal lo was charged_ with and convicted of the murder of one Maria d/o .Ndunguru. He was sentenced to the .statqtory death sentence · by the High Court · . . . (M~nento, J.) sitting at. Mbinga. Aggrieved by both conviction and sentence, the appellant has lodged an :appeal_ to this Court. The appellant was represer;ited by .Mr. /. . M.T. Mbise, . . learned advocate, . . . _while Mr. L.K.N. l<aduri, learned Principal· State Attorney, appeared •, for.the respondent Republic. ~ ~ ,. , ·.-.... . . . . . · _.Briefly, the facts of the case were as foHoyvs: On the 8.9.99, . _PWl's parents were hotat home, ·:only . childr~n V\fere ·preseht. -__ At _. about 8.00 p~lil., the appellanfenter~d their house through_ a yvindbw - and opened ~he door ·of the house from inside.·._ ·The appella_nt to9i<. -· .grassJrom the house,_ and l,itthe grass but the lightwent off. atthe .. -_ sitting room. The appellant went to the room occupied by PWl and PW2 and asked who else was inlhe house. PW2 _replied that they· . :, · were with their uncle, whereuponthe appeliant said that. they were _-_·. -· . - . . . . . all going to face death.· lje then attacked them but both PWl and - PW2 managed to escape to_ a neighbour's house. -All had sustain~d . . . . .· . . severe injuries. The deceased 'died on the way whjle being taken to hospital. .. The appellant,· through Mr.•- Mb.ise, ·filed five grounds of appeal, _namely that-'- 1. - - The appellant .was I ·._ not properly identified at the scene of crime as . . L;· . conditions · were not favourable for I. correct identification . ., . . 2·.: · The . . trial Court improperly relied . . o~ . the . _. . alleged appellants identification by voi~e.': . . ·. . . . .· ·. as a ground of conviction.-; · . . . . . 3. . The trial court gave undue ·weight to the ...•. · alleged dying declaration to found a conviction. A. ·. Thetrial court ought to have taken th·e · '· · testimony of PW4 Damian . Nombo with . . ··- caution· as he· was an accomplice or' at . least, . a witness ·with an· interest to ·serve. The trial court erred in its evaluation of the evidence on record and this led to a . wrong conclusion. The first two grounds of appeal revolved around the visual and voice . identification of· the appellant by· PW1 SaiHs Kinunda and PW2, Castori Ndunguru. The-'thrust . of Mr. Mbise's submissions . was to the effect that the. conditions for an accurate identification of the ·. appellant were not favourable. The house in which the alleged ,. ·/ + .l ' .r 4 murder took place had·n~Ught. The purported.light,.ifany, was from, · burning grass· 1it by the . bandit himself which :burnt" off. quickly._ ·The . .. . . voice ,identification· .. . ·. .by PWl · and :pw2 w~s . equal!/_ . .. . wanting .. in its . . . . .. authenticity. . There was . no . satisfactory . . -evidence . . -. :. as regards . . the_: '• familiarity of the appellant's. voice by. PWl and . . Pw2: ·The. . third . . -. . ground of appeal took issue with the dyin_g declaratio_n the d~ceased ·. · · made to PW3/ Godfrey Kinunda. · Again -. it was Mr; Mbise'scontention . .· . . . . ·. . . . . . . . . .. ·. . ... - . . . . . ,.·. ·. that the· purported dying declaration was of insignificant evidentiary . .. . value . si.nce . the conditions _for . . the identification ' . . . of the appellant. were , ·- •: . . far from favourable .. Lastly, Mr: Mbise submitted thattlie evidence of . PW4, Damic;1n .Nombo was questionable since, in his considered view, · PW4 was an accomplice. Mr, Kaduri, learned Principal ·State Attorney, forcefully coun.tered Mr. . . Mbise/s arguments. He was of the firm view that the · . . ·. . . light emanating from burning grass provided sufficient light that enabled . P\f\/1 to ideptify · the appellant. As . regards voice . ./ identification, Mr .. Kaduri submitted that PWl and PW2 had known the app_ellant since 1995 . and so they were able to identify him · . .. through his voice. He added that the deceased had also mentioned . . . . . . . . .. ·. . the a·ppellant: ·-as the_· person who had :inflicted injuries _upon her ... · Lastly, Mr. Kaduri submitted that PW4 was not an .accomp!ice sinc:e. none of the witnesses mentioned him and did. not take· part in the ... crime. In fact PW4 claimed to have been told by the appellant wh~re · the stolen articles we_re hidden in the bush. · . . . .. . . . ·. . . . . . . . . : The identification. of the appellant was based on the testimony . . .- . . . . · of PWl and PW2. PWl testified thatwhen the· appellant entereq the . ~- - . . . . . . f .· house through the window and opened the door from inside, it: was · J.. night time, 8.00 p.m. PWl stated - "He took grass from the. house and lit the grass and came with the burning grass to the room.. The fire .got extinguished just at the sitting .room (barazani) .. Then he came to the door of the room we slept."_ If we pause he~for a moment,· how. did PWl see the appellant · . take the grass? It was night time and we are not told that there Vy_as some other source of light in the house. By what means did the , ,,. l rr- .1 ! l 6 .. . I appellant caus.e the gra~s to burn and thus provide the necessary light in the ·. house? . . PWl stated that '.'the fire got .. ,. . . extinguished ·. . . . . just . at. : the sitting room".: How bright was this "fire" and. for how )ong did \t .. · . last? . These are important considerations to take· into account . j.n ' . . . . , . . . . . . ... : . . . . . -·· assE=ssirig wh.ether: or. rlQt the conditions were favourable. ih~re is .· .. . .. . _-.. . :. _·.--. .: ·. . : ·_ . . ·· .- -_. .: . . · _- . also the testimony of PW2; Castori Ndunguru who testified t:hat :. .'. .·. · · , "While we had just ·gone to bed, we saw the ·. broken w.indow, fir~ lighting at . the sitting . . . . . . . . . ·- .· .... room ... · W.e saw Balla, the ac~used who , . 4· was/is a rogue ... He had lighted some grass, . whi~h:. blew.·.· The. . . grass . . were from the house . .· · •. . . . .• . . . as it w.as thirched (sic) with grass". · . PWl and PW2 wer~ the prosec·ution witnesses _who Claimed to have identified the appellant as· the person who entered the house· · and viciously .attacked them. Both testified that .it .was. light from. ·.. . . . . . . . . . -: . . . . . . : . . . . burning grass which th<= appellant had set on fire that faciHtated their identification. The q·uestion to be considered and determined is whether or not the conditions then obtaining during that fateful night we~e favourable for the identification of the appellant to the exclusion 7 . . . . . of .any possibility of mist~ken identity. In Amani Waziri v. R (1980) J.LR·250 at page ?52 this Court enunciated guid~lines, which though · not intended to be exhaustive, should be closely examined as·regards.. · . ~ . . . . . . .. . -the circumstances:in which the identification by each w·itness came . . . . . . . . . . . . . . . : . . :. .. tp i •·· . / .. be .made. These guideHnes included (i) how long did the witness f6{t~ 0 . have the . appellant under observation; (ii) at what distance; .(iH) in . . . . ~ . . . -t--D •· what ligh.t; (iv) had the witness .seen the.appell~nt .before;: how often, .IAkflflP:teM) . . . . . , and · if only occasionally, had .the witness any special· reason for remembering the· appellant The only source of light was the burning . . . . . ' ·.· grass. There. is no evidence either from PWl or PW2 on the brightness of that light.· There is also no indication_ on the duration of that light before it fizzled out at the sitting room. PWl however stated that by the time the appellant reached the sitting room, there_ . . was no more burni_ng grass. This means that the house was plunged . into darkness and that, that light did not last long. Another consideration to be taken into account ·is that the bandit who .entered the .house had a pUrpose . I for so doing. PWl and PW2 did not testify . as· to how long the bandit stayed and was observed by these two witnesses. What we can gather from their testimony is that on being: /, 8 . attacked:they ran.to a n~ighbour's house for 5-afety. AILtheseJactors . . tend ·to show. that t~e ,ider1tification of ~he appellant. was not free from difficulty. .The quality. of the identification was, ,Jn. our view,·.· . ·. poor; · . ·- . . . . . · Apart fr~m visual identification, the learned trial Judge .relied. as . . . . . . . . well, on voice identification. ·He stated thus - · "PWl Salais (sic.) and PW2 Castori al) saidthat . they identified the accused's voice. .He \Nas a · le-, vi Ilager .and .they ·had known him · for ·a. long. time sinc::e 1995. ·The· accused .· had · demonstrated in court on how_ he used· to shout when selling his pork soup, and that · had b.een on many occasions wfrh school children, who .included . the· prosecution witnesses PWl and PW2. PWl was the only. witness who testified to· have been able to - . . 1' . . ' . . . . . . . . -· identify the appellant by voice as well. PW2 stated that he knew the appellant since 1995. We have no problem with the .fclct that PWl and PW2 heard the appellant "shouting" while selling soup! It is our .. . considered view that what . . . is required ·in voice identification is w.here _ . . . . . the witness is very ·familiar with the voice in question as being the same voice of a pers9n at the scene of crime., We entertain serious doubts that the voice of·a person selling ''so"up"_ ·to school childr~n _ . vyould. ·be the same voice of the same person committing a·- heihous crime. The learned trial j~dge relied on the case of Kanganja Ally . · ·_ "and Juma Ally v. R. (1980) TLR 270 which he said was on ~II four-~· . , with· the present case. In this case, .the visual identification and the • . ' . . . . .. . v9ice identification was notin doubt.· The appellants _were nephews·. of the deceased and the identification vVas made ·by the deceased's wife and daughter.. In other words, the appellants WE=re not strangers to the _witnesses. · As we have hopefully amply_ explained above, both the visual .and voice identification of the appellant, were · -·made in unfavourable conditions-- which have not eliminated the possibility of mistaken· identity. We now come to th.e dying declaration. This was testified to by / . PWl and PW2 when allegedly the appellant attacked them in the _ house. PW3, Godfr~y Kinunda, who was not present when the attack· · io took place, found tbe. d~~~as~d, PW1 and PW2 at Edmund Kapinga'$ · .· house. PW3 testified that the deceased was cut on the shoulde;s .. ·· .· and she died . . on the·_ .way to hospital. Before her.<death, PW3 s9id ·· 'that the deceased told him that .the appeHant had wounded . . . . her. . . . . . . PWl, PW2 and the deceased w.ere all in the same house-when the · · ' ' ' ' ' ' appellant alleg·ecliy attacked them, fatally wounding· her. We have · already expressed our graye doubts that the conditions at the time . . . ·. .. , . . were not. favourabl:e to a proper identification of the· appellant. In \ other words, the testimony of PWl and PW2 having been dis~redited, .· .. t- ·. and so .the ·.testirnony . ·of. PW3 cannot stand alone to found.· a ~ . · conviction ofthe appel,lant .· This takes us to the fourth ground of appeal. Mr. Mbise took issue with the evidence. ofPW4, Damian Nombo. The appellant and. PW4 were relatives .an9 at the material time, were living together in PW4's house. PW4 testified that the appeHant had told him. that there were certain articles , hidden .in the bush. ' These articles / apparently .belonged. to PW3 · and were allegedly stolen .by the appellant from PW3's house. where the crime was committed in hi$ .. 11 - absence. ..PW4. ·. _te~tified : further that the appellant's .. . . ·, , . clothes on. the. _:g_g·_gs were '~smeared with blood stains. as •. if he came from . slaughterin~JTf. · ·We have·· found considerable. difficulty·. v-,,ith ·this- . , . . evidence. PW4. . . and the appellant were iiving together in.. his house. . .. . . . . . . Despite being informed by. the appellant that there were articles \ . . . . . . . . . . . . \ \ .. . . . . . j I .. I • hidden_ in the.bush, PW4 di~ not report this fact tp the authorities. . \ •· Instead, he led_ the police to the bush where stol.en articles were , retrieved. The appellant was not in hiding at all. · No efforts were .· . taken.,,to . tender in · evidence the blood-stained trousers of. the. appellant.·· . The appellant·was arrested . . . in .the shamba, but. .there is no . . . . mention ·- . of his trousers . .• ·being blood-stained . . as alleged .by. PW4. ... We . . . .. therefore find it difficult to believe PW4's evidence.• Its authenticity is very _doubtful indeeq. Before we :end, there is a matter which arose during the trial on which we would like to briefly comment upon. ·After the close of the prosecution case, .Mr .. , Waryuba, then. learned. advocate for . the . I accused/appellant, . requested the trial court to adjourn the · proceedings in terms of section 220 (1) of the Criminal Procedure ,.., 12 .Act, 1985 since apparently the evidence. adduced .seemed to suggest .· th.atthe appellant was _in_san~\ The learned trial Judg:e ~ejected the · . prayer in.these words ~. "It really do.es not· appear to me tliat the· .accused . was . .insane at · the time . of the· . . . . commission of the offence· to · make me . adjourn the- .prqceedinQs so · ttiat he is , medically examined . first."· . .We ·would like to observe. that -if doubts arise as .to· the I :·, . , ,~.,.J7...... (· ·. •' · soundne_ss· of the accused's rnind after the triar has commenced,. it is 1 i. I advisable to adjourn the proceeding·s and -order that the accused· i person be referred to a mental hospital for medical examination under section 220 (1). This will eliminate any .lingering doubts on ·the insanity _or otherwise of the accused person. The·. cornerstone of the prosecution cc1se .was based on the ;, / visual and voice identification of the appellant in ·conjunction with the dying declaration of the deceased. All these pieces of evidence have · I .crumbled. The burden of proof was upon the prosecution to prove . t .· .13 t~e case against the appellant beyond all reasonable doubt. It is our settled view· that thi.5 burden was. nor discharged. We ther~fore .. · .allow the appeal,· qDash ·.the :convictio~. and. set· aside the sentence'. · . . . . . . . . The appellant is to be released .forthwith unless otherwise lawfully < M •• : held. DATED at DAR ES SALAAM this. 10th day of June, 2001. . J J.A. MROSO JUSTICE OF APPEAL H.R. NSEKELA • · . JUSTICE OF APPEAL J.H. MSOFFE · JUSTICE OF APPEAL I certify that this is a true c~py of the .original. I ,. (S.A.~RA) SENIOR DEPUTY REGISTRAR .,...,, < J: •