19841201 TZCA Dar es Salaam3

.- IN THE COUHT OF Ai:PE.AL OF TANZANIA AT rJIWANZA (CORAI'il: E'ralali 1 C.J., Mustafa, J.A. and Kis2rnc;a 1 J • .A.) CRIMii'foL APFEAL NO-. 58 OF 1983 BETWEEN MT AK'JENTIA BAG OK.A • • • • • • • • • • • APPELLANT A ND . T.HE R.EPUTLIC • • • • • .. . . • • • • • • 0 • RESfONDLNT (App0al from the conviction of ~he High Court of Tanzania at Bukoba) (Bahati, J. dated the 29th day of September 7 1983 JUDGMENT OF TH]; COURT A gang of robbers 'Jroke into the house of a husband ~ind his wife 1 and in the course of the robbery kiiled both of them. The appellant was the only person alleged to h,we been identified as one of the robbers. He was convicted of mu:nder 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 yea.rs of a'-se at the time of the rob,bery. The robbery took pl::ice at around mid-night on or about 4th February 1 1980, at Kishanda village, in the District of Muleba in theiKagera Regiono P.W.l was asleep, and was awakened when the robbers:. entered the house through a tunnel they hGd du.g;. He said: "When they entered I made noise~ I s:1w two people. One of them cut my grandfather, and the other cut my grandmother •••• I recognised one of the robbersr I recogniied Mtakwenda. •. • • • After cutting them he came to my bed. Th3t is why I recognised him. .He asked me about money •••••• "• From this it would seem that P.W~l first identified the appellant when the appellant came to P.W.l and spoke to him. •·• o o o/2. 2 Then P.W.l also said: 19 1 kn<:>,"1 him vr,ry well, and I saw, him cut my grand.parents. 11 And again:- "l saw :;he accused at the first time when he cut my grand.fat her. 11 This would seem to indicate that P.W.l first identified the appellant before the cippellant came to P,.-1-J.l on P.J.l's bed. It is not qlear when P.W.l first allegedly identified the appellant. P. W. 1 a 1 so s ,] i d: "The thieves saw me right at the start that I was inside al so. They heard me make noise and they stopped m~ 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 cut the grandparents •••• ! was very frightnned. I never left my room until the robbers left. I waited until it was dawn 3nd then I came out and made noise ••• ii• From this it could be inferrAd that immediately the robbers .t broke into the house th9y prevented P.W.1 from raising an alarm and ordered P.~.l to cover himself with a b~anket, which was done and P.W.l remained in his room until the following morning. It was in evidence that the deceased persons wer_e in another, though opposite, room. There was also evidence that P. 'd.l 1'!"as under the guard of one of the robbers durin:c: the robbery, and that torches were usGd by the robbers when looking for money. However,. P. W. l did not say that he identified the appellant by means of the torch li~ht. It was clear that the incident took ~lace in the dead of night, that P.W.l was suddenly awakened from sleip and threatened, and covered himself with a blunket and confined to his room in bed~ P. W. l was very fri,<shtened during the incident • ..... 3i:i :i , I Were the circumstances favour13-ble ~)or i!identification? 1 P. W.l had stated that he knew1I' t.h e 3.'IPP~·'11 an t we 11 'oe:i.ore "' +,,ne . . r1... en t 1nc1 . 1 /' i I , 1I : a2 he was a n:::,ighbour and P.H~l cou;ll.d jfrecognise and identify himo But, I I 1 or 2 s 1:,ointed out a.bove, he was hot cleat: as to/ at what sta,c;:e '" I 11 I ··- 11 ,: he successfully identified the appeIT.lalnt. Could P. i.l have j, , Ii been confused by the violent eventsi wb:a.ch were taking Place in his I ' .I ; I I presenca? P. J. l was only abo[lt 14 ;yea!:rs old at that time 1 and he ' 'I I!I, ·1• . w:,s under gre1t strain, and s4ch straih might have impaired his ' II powers of observation. I I; . II I The judge in his Judgmen~I stated: :1 ' II I Ii. 1 )' cou 1 d re;cogn1:::e ·1 H.e (1·, • ··,r I! o f +" h e t 1neves · 1 • I · ~me by me:ws of the tor1 eh 1 ight ~ which were on and which were bein~ fl~shed ,labdut I -....., by the thieves. 1 I I This was the accusqd in t1he ·i[dock 11 • 1 i !' ; ! : . However F. ~l. l did not say so• ~ ~j The judge also stated: I i -- • i. J "F. iJ.l had been ablel1 to wi;t; ne.!ss his grandfather . 11 . and ,~randmother beipg cutl, wilth pangas. Th.1t is 1 when he was able to[see the ~ccused for the first time". 1, ' lj I I However, in his testimony P. W.1 was hot1· as definite as that·, he 1 r 11 l had also stated that he recognised the appellant after his grandp::irentr - 11 ·1 ,, ,' i !J had be~n cut Jnd whPn the appellant app}oached him on his bed and spoke to him. i !' II !j I 1 Both the assessors advised a vejdi0t of not guilty. They were ! 11 ·11 .not satisfied with P. W.l's idenl,tific~tidn as they thouPht that l:'. W.l . I' I, ·1 • I 'I C) could not have seen what was ha 11ppen1ng from the room 1.· n which h"'.· was . !i 1: , confined. They believed thi:lt Pf W. l wbs !Ivery frightened and his !: II I • ' evidence could have been mistak~n ,wdl1 cdlnfused. The trial judge stated, inter al,rr.a) ,, ,. il I! I 1 1. 1 I i Ii 1: i •11 Ii r: 11 !] i _I ,_r· I 4 ( HThe circumstances forij identjification were not all that unfavour~ble ~s ~o make it impossible to identif1 a p~~s6n whom someone • ' :1 ' p ., already knew before • • • The • 'I I fact that • 'i1. l ,I was very frightened dbes no se~n that he ~ 1 wns incapable of recognisin1g (foon a familiar person w:1om he knew b~fore".·1 'I:,i ,I ,I . i I P. W. l did not inform P. ·;;. 2, 1 a ten!,- ' c~ ll leader and a number of 1 i •.1 i other co-villagers who answered ihe al'lpr1 P.W.l raised the following , I , morning of the identity of the appellant lias one of the robbers. ,: I ·I' 11 I !It w,Js about three hours later when th e ~[illage ch::iirman arrived 1 C 11 I', that F. \V. l informed the villagsrk th::itl th~ avpellant was one o.f 11 I, J the robbers. On this point the trial l1!·ualge stated: 1 : • ll II : il 11 There was therefore n~ reall si};nificance in the failure to disclo~e' the • culprit I at once because the evidence ~hich I: we 1 have : and· which I believe to be true is that11 P.1.1 ; was not asked and because he Jas not atked at once he chd not disclose ~t oncJ I ii 'I Indeed. .L. P. W. 2 Pantaleo would not even enter the I • I 11 house where the dead bodies ; I, weTeI before the chairman ciame. One c~n see ho0 cautious P.i,i.2 was •••• I' He woqld;.not · d0'I anything in the absence of the ichairajan~ not even to look at those who had be4n killed: 1 • I' II ·1! I :.1 : I Here the j11dge misdirected :imsel1.1·· -. 'I\P. W. 2 stated in evid0nce 1 • I' . .I ' Vle entered the house. ;le saw tl1e dececised 11 • - : II .i The j11dge was satisfied that, P. W.] stoke the truth c1nd that Ii ~ \ I : he was not mist3.ken. He convicteid on i.he 1ievidence of identification .i ! 1: of a sole witness. i ' ! ; I . 1 In our view, from the circum stance1.ls Je have mentj_oned, P. ~-J.l's !i ' !' evidence is not that clear cut, uhambig10,ls and straightforward that it would be cogent and relia~le enpu~~ to ground a conviction. ui i t i~ying wi t ness. b ut not . t.ion can b e b ase d on a so ll e i· d en convic .t · · 1 I , I! . t 11e in 1• circums . t ances as in . t'. I ni s case. 1 I 1 d b e unsa f' e to [. t wou• · · convict !I j! on the evidence of F.W.l, unless it was cotroborated. There is !I 'I I ..... /5 been confused or mistnken. F. L. NYALALI CHIEF JlJSTICE A. "MUSi:i:AFA JtJS'rICE' OF AFPEAL R. R. KISANGA JUS'rI CE OF Al 1-LAL I Ii I certify that this is a true copyr· ofi the original.. I I t • ., 0 ,. J