18810806 TZCA Dar es Salaam

IN ~HE COURT OF APPEi~ OF TANZANIA AT DAR ES SALAAM ...! ·(CORAM: Mustafa, JoAo • Makame 1 JoAo, and _Kisanga 2 J A 0 0 CRIMINAL .APPEAL NOo_._ 5 OF 1981 BETWEEN-<. PIU-S--.JOSEPH &- JON/-.THAN Jo KAAYA o . .,_ ~ o o o o o ., o o APPELLANTS AN o·· .-r-·· THE• REPUBLIC O O • 0 o __o.-· -,; 0 0 0 0 0 0 0 0 0 0 0 0 0 RESPONDENT >--__ (Appeal from the conviction and sentence of the High Court of Tanzania at Arusha) (Mnzavas, Jo) dated the 30th day of January, 1981, I in Criminal Sessions Case Noo 28 of 1977 JUDGMENT OF. THE COURT MUSTAFA, JoAo: During the night of 9th January, 1976, a gang of f~ur people ! went into ti"1e house of P.W.,1 Mselu at Arusha unde:::· the guise of _ police officers allegedly in search of "M~shi",. b1Jt i..n fact to robo Two persons went into the room an5i--£wo r~mained outside the room on guard., One of them was taking away a radio and as they were ,/ _, leaving one of the.pers6ns fired a shotgun and killed the decease~, / a young son of Pow ✓~ aged about nine years., / Two persons were eventually arrested, charged and convicted - of murder. Appellant 1 is Pius Joseph and Appellant 2 is Jonathan Kaayao ·The whole issue at the triai as in the appeal isi.identificationo It was in evidence that there were koroboi lamps in the house burning that night, at least two large koroboi lamps. One witness PoWo6, Neyeiyo the wife of P.Wo1, allege~ that there was also a lfntern in the roomo There was bright moonlight.. The intruders sp,ent some time in the house, the two who .wer:t into the room r:.~arched it \ and. then came out with a radioo Two stood on guard outside the 'room, one of them in possession of a shotguno It was alleged th.3\ the onz \ "': 0 ':J" ,>/2 \ 2 in possession of the shotgun was Appellant 1o It would seem that both P.Wo1 and PoWo6 were under the guard of Appellant 1 and another person and both would have had opportunities of ~eeing those two _persons o'n guardo It is difficult to say how long the intrude·rs were there; the trial judge estimated that they were there for 40 mi.nuteso We however do not th.ink it was that long, we think tnat the incident might have .-~lasted 15 to 20 minuteso A few days later PoW•1 saw a person riding a bicycle in Arusha and managed with the help of bystanders to arrest him. That was '· Appellant 1o On a description given by PoW.1, the police arrested Appellant 2, and on an identification parade PoWo1 picked Appellant 2 as a member of the gang. P.Wo1 made a statement to the policeo In it he described the features of some of the gang members. _He had described the one· who had the gun as having thick blac~ lips, light skinned, a wrinkled face and about medium buildo PoW.6, the wife also made.a statement to the policeo She described the one with the gun as havi~g. thick. black lips, of light complexion and somewhat shorto. In.~ourt. P.Wo1 said he had no difficulty in identifying Appellant 1.when be.saw him on the bicycleo P.,W.1 said he identified Appellant 1 because of his swollen cheek on the right sideo He said he had told the police soo . P.Wol in court did not mention the lips an9 so ono However, in the statement to the police produced.in court, there was no mention of th~ swollen cheek referred to by P.Wo1o P~Wo1 however, stated_that the statement was not read back to himo However, at tJ:ie trial 9 it was noticed that Appellant 1 had a swollen right cheek, thick _black lips and was of a light complexiono He was short to medium in heighto The thick black lips were certainly unusualo He appeared at the appeal, and we have had sight of his unusual lipso •ooo/3 3 P.W.1 "lnd PoWo6 said that th.-=re was sufficient light for them to identify Appellant 1, especially as he was one of the two standing on .guardo In fact PoWo6 was stopped when she tried to get ou~ by Appellant 1, who demanded from P.W.6, "Where are you going, where are you going". The trial judge found that P.W.1 was a truthful witness. We ourselves believe that P.W.1 was truthful. He had had reasonable opportunities of seeing ahd identifying Appellant 1, the one with a gun; the lighting was adequate. Appellant 1 had unusual facial features which P.W.1 clearly had noted. We do not think that the omission of the swollen cheek dereription of Appellant 1 in P.W.1 1 s police statement is of any material significance. But we ar~ satisfied that PoW.1 had clearly and accurately noted the features of Appellant 1, and Appellant 1 did ~ubstantially answer the description given of him both by P.W.1 and PoWo6, in.their statements to the policeo PoW.1 was positive in his identification, and ~.W.6 in court also had no difficulty at all in identifying Appellant 1. We ijd- not- thilllc" that either of them was mistaken, in view of the unusual physical character- istics of Appellant 1. Appellant 1 attempted to put foi:ward a plea of alibi; it was obviously untrue and the trial judge quite rightly rejected it as untenable and falseo As regards Appeilant 2, only P.Wo1 identifi~d him without hesitation at an identification parade. However, Appellant 2 had no special characteristics. In court PoW.6 at first failed to identify him, but later she did. Anyway, a dock identification is not a satis-• factory identification. We can give very little weight to P.W.6's identification of Appellant 2 as one of the gang memberso We think F.W.1 1 s evidence of identification by itself would not be able to sustain a cooviction; in this case a sole identification witness, ,in the circumstances, should be corroboratedo We do not find. any satisfactory corroborative evidenc·e in respect of Appellant 2. In our view it would be unsafe to uphold his conviction. ooooo/4 ,.t. ) .,. 'I. •• I f - 4 - • However, as regards Appellant 1, we are satisfied ~hat the trial judge ·was right to have convicted him of murder, as he was properly identified both by p ..,w .. 1 and PoW.6., He has unusual physical characteristics which gre~tly facilitate identification, and he was in proximate contact with PoWo1 and P.W.6 while he (Appellant 1) was on guard .. We allow the appeal of Appellant 2 Jonathan Kaaya, qu~sh the ., conviction of murder and set aside the sentence of death passed on him and order that he be set bt liberty forthwith unless other- wise lawfully detained. We dismiss the appeal of App~llant 1 Pius Jos~ph ... DATED at DAR ES SALAAM this 6th day of August, 1981., A. MUSTAFA JUSTICE OF APPEAL Lo M. MAK/\.ME JUSTICE OF APPEAL A. MUSTAFA JUSTICE OF APPEAL