19841201 TZCA Mwanza3

IN THE COURT OF ALAL OF TANZANIA AT MWANZA (CORAM: Jya1ali, C. J., Mastafa, J. A. and KisanJ.) CRIMINAL APPEAL NO. 55 OF 1983 B E T W E E N MTAKWENDA BAGOKA ....... . .. . • . APPELLANT A ND THE REPUTBLIC .............. . . . . RESPONDENT (Appeal from the conviction of the High Court of Tanzania at Bukoba) (Bahati, J. dated the 29th day of September,1983 JUDGMENT OF THE COURT MUSTAFA, J,A A gang of robbers broke into the house of a husband and his wife, and in the coarse of the robbery killed both of them. The appellant was the only person alleged to have been identified as one of the robbers. He was convicted of murder as charged and is now appealing against his conviction and the sentence of death passed on him. The only identifying witness in this case was P.W.l, a boy of about 14 years of age at the time of the robbery. The robbery took place at around mid—night on or about 4th February, 1980, at Kishanda village, in the District of Muleba in the Kagera Region, P,W.1 was asleep ? and was awakened when the robbers entered the house through a tunnel they had dug. He said: "When they entered I made noise. I saw two people. One of them cut my grandfather, and the other cut my grandmother. ... I recognised one of the robbers. I recognised Mtakwenda. After cutting them he Came to my bed. That is why I recognised him. He asked me about money ...,". From this it would seem that ?.W.l first identified the appellant when the appellant came to P. W.l and spoke to him. It 2 - Then P.W.l also said: ?I knew him very well, and I saw him out my grandperents. And again:_ saw the accused at the first time when he cut my grand1a3ther.' This would seem to indicate that P.W.l first identified the appellant before the appellant came to P.W.l on P..l's bed. It is not clear when P..l first allegedly identified the appellant. . .1 also seid: "The thieves saw me right at the start that I was inside also. They heard me make noise and they stopped me from making noise. They ordered me to cover myself. But I covered myself with my blanket so that I could see them. I was on my bed. They came to me after they had out the grandparents.... I was very frightened. I never left my room until the robbers left. I waited until it was dawn and then I came out and made noise .... From this it could be inferrAd that immediately the robbers broke into the house they prevented P.'v.l from raising an alarth and ordered P. W.l to cover himself with a blanket, which was done and P.W.l remained in his room until the following morning. It was in evidence that the deceased persons were in another, though opposite, room. There was also evidence that P.W.l was under the guard of one of the robbers during the robbery, and that torches were used by the robbers when looking for money. However, P.W.l did not say that he identified the appellant by means of the torch light. It was clear that the incident took place in the dead of night, that P. W.l was suddenly awakened from sleep and threatened and covered himself with a blanket and confined to his room in bed. P.W.l was very frightened during the incident. /3. - 3 - Were the circanistances favourable for identification? PW.l had stated that he knew the appellant well before the incident as he was a naighbour and P. W. 1 could recognise and ide.nt ify him0 But, or as pointed out above, he was not clear as to/at what stage he successfully identified the appellant. Could F. .l have been confused by the violent events which were taking, place in his presence? P. S. 1 was only about 14 years old at that time, and he was under great strain, and such strain might have impaired his powers of observation. The judge in his judgment stated: He (P.W01) could recognise one of the thieve.s by means of the torch lights which were on and which were being flashed about by •the thieves0 This was the accused in the docktf. However P. .1, did not say so. The judge also stated: had been able to witness his grandfather and cranchnother being cut with pangas. That is when he was able to •see the accused for the first time. However, in his testimony P.W.l was not as definite as that; he had also stated that he recognised the appellant after his grandparente had been out and when the appellant approached him on his bed and spoke to him. Bo -fh the assessors advised a verdict of not guilty. They were not satisfied with P0W.1's identification as they thought that P,TS.1 could not have seen what was happening from the room in which he was confined. They believed that P..W .1 was very frightened and his evidence could have been mistaken and confused. The trial judge stated, inter alia: IL 4- "The circumstances for identification were not all that unfavourable as to make it impossible to identify a person whom someone already knew before ... The fact that P. W. 1 was very frightened does not san that he was incapable of recognising even a familiar person whom he knew before. P.W.l did not inform P.4.2, a ten—cell leader and, a number of other co—villagers who answered the alarm P.W.l raised the following morning of the identity of the appellant as one of t.he robbers.. It was about three hours later when the villagechairman arrived that F.W.l informed the villagers that the appellant was one of the robbers. On this point the trial judge stated: "There was therefore no real significance in the failure to disclose the culprit at once because the evidence which we have and which I believe to be true is that P.W.l was not asked and because he was not asked at once he did not disclose at once .... Indeed P.W.2 Pantaleo would not even enter the house where the dead bodies were before the chairman came. One can see how cautious P. . 2 was • . He wou1d.not do anything in the absence of the chairman, not even to look at those who had, been killed. Here the judge misdirected himself. P. W.2 stated in evidence We entered the house. We saw the deceased". The judge was satisfied that P. W.l spoke the truth and that he was not mistaken. He convicted on the evidence of identification of a sole witness. In our view, from the circumstances we have mentioned, P,W.l's evidence is not that clear cut, unambiguous and straightforward that it would be cogent and reliable enough to ground a conviction. A conviction can be based on a sole identifying witness, but not in the circumstances as in this case. It would be unsafe' to convict on the evidence of unless it was corrobcrated. There is 0••• /5 - 5 - no corroboration. We are not satisfied that P. W. 1 could not have been confused or mistaken. - ie think it will be unsafe to uphold the conviction. We allow the appeal, quash the conviction, set aside the sentence of death imposed, ,nd.odt-hat the appellant be released forthwith unles thoriselawfu1\1y detained. \•V D4TLD at I9' ZAtbs1st daf December,1984. N fr\ - < ) :?:• 'i. I - F. L. NYILALI CHILF JUSTICE A. 1'1USTAFA JUSTICE OF MPEAL R. H. KISANGA JLJSTICEOF APPEAL I certify that this is a true copy of the original s L. KYANDO ) ' REGISTRAR