19950904 TZHC Dar es Salaam

IN 1.I'~ u1ru COURT or 1I1.ANZANIA Kr DAR ES SitliAliN APPELLATE JUriI~DIC~ION CRTI,IIlfAL APPEAL NO. 95 OF 1995 (ORIGINAL CRIMINAL CASE NO. 16 OP 1995 OF T.G:E DISTRICT COURT OF ILA.LA DI81l'RICT i.-J: SAlvlORA AVENUE) NASSORO MF.IVIBE &:. 3 OTITERS • 0 • 0 0 0 • • • " ti O • 0 Cl • • • 0 0 • • 0 0 • .• 0 • 0 .. APPELL.ANTS VERSu"S ·' TIIE REPUBLIC •• ti 9 • O O O O e O O O O O • 0 0 0 e O O O O O O O 6 0 0 0 O O O O O O C O O e O RESPONDfl-JT JUDGMENT · lio~·s after midnight of the 10th J·anuary 1-595, specif'ically 0 after. 2cod a:·mo,. the fam ily of NAS~0R0 3/0 AWJJ):3: (PW3) was attacked by a nwnber of bandits estimated to numbe:r no·c less tmin seven and sev~al personal P_;S.~pei-ty and itemc ~e::ce stolen.'• . iJ;l~e PW3, his wife, llMNE BJ.]'JillHIL, (Pt12) and his young brothe.rj liWlJ)i:i s/o IBRiilill\1 (Plf4) · received out wounds at the hands ~-· of t·:·10se bandits wuo were said to have ts~in~d ingress into that house after a la~ge stone baptized by, a name of "Fi..TlJlliIA" was thro'W?l 011- the front door which was forced open, A:t; this time, save for the PW2 and the PW4 who were already asleep, in tha-t house, the PW3 was at the backyard -wa-ter-:-tank wb.er·e_ he was try:ing to fetch water so as to fight water shortageo The bandits demanded frQill these witnesses to hand over money -to them while they were br~dishing some pangas, a gun and a ' 1fatak11 ( explosive) •. These I demands were coupled with cu.t wounds administered on these· witnesses in different turns and ~o establish these two PF3 for the Plf3 and the PW4 a:re marked Elcb.ibits P2 and P.3 respec·~ively., Elccept for tl1e PW3, who said that h0 did not· identify any· of them because he was not , i"'·' put;ting on his spectacles/glasses, tl1e PW2 and t.he PW4 narrated how I .:;:•I·· ,;: .. ,._ 2 each of them managed to identif-J some of -~lie bw1dits wit'..J. the aid of electric light from a i:>ulb. as follows. T:~ie PU2 said tl1at ;::i.1e was ordered by the fourth accused to surre.nder to him iler golden ring. As for the one who cut her with a, panga lie was not in court. In reply to cross-examination by some of the accused sl:i.e replied thusg To first accusedg 11 I identified yocr figure?!; 'I'o the second accused a n I saw you in the scene of crime"o Your (s~c) the one (sic) c-.ntered in (sic) my room~ There were bright li 6 hts in my room. I saw you firs~" m the' corridorl1t and to the tl1ird accuseds II I saw you.r in !DY ....... '"": housel;' Of course we are not forge-ttir1g to repeat here that the PW2 in reply to cross-examination by the fourth accused was told that he was the one who orde1'ed her to su.Trender her golden ring to him 0 The PN4 on his part said that the third accused had a flfatak 11 ( explosive) while fo1· the first aocused:i he. said t~.:a·c ·11e had. a gun. The PW4 also said that it is t:.1e foLi.l'th accused who was seen taking their "bag 0 These witnesses$ PW2$ PW3 and PW4, were all in one room and they were kept under close watch of some of the b2.nclits 9 wl1ile the otller bandi,:ts were collecting property and personal belongings of those witnesses 0 "·Jt. :,· ··The witnesses made a report at Ilala police station as soon as the bandits left while ca:rrying the loot with -~hem., The police officers on duty at thot police station rela;yed on informationl!idio which was promptly received and followed up by policemen on patrol that nigh.. imiongst these policemen on patrol was ~i;he Pi11 o The ·PW1 said that aocording to their experie...11ce they managed to trace both tyre-marks and footmarks that led them to a house in Bungoni area 1 from where the accused persons and property suspected to have been stolen? were :found., From a first room were '\. found a handbag while in a second room vrhere there was no bed, the first accused wa,s found while he was standing. Lnd. in yet a third room the tnird accused was found boiore the rest of the second fourth and fif·i;h accused were foundo The PW1 iater learnt that ·the room from which the hand-bag containing the stolen property was that of tl1e first '1 accused while· that in wl:iich thG fiTst accu.sed was folJl1d standing · \ was that occupied by one r,iusao ii!ld w}1eh the police put the accused persons to interrrogation about the fin?.1:1g of tl1a;t hand bag from tte room· of the first accuse,d? tl:J.ey were told t.'..at ·c:.10y did not know the owner of t!1at bago All the recovered items were :i.dentifierl ·by /,,,o • •o3 i'i 3 the complainants on t:io following da;/ and ·0:10 PW1 llas t<.;i1de:rod -c::em as 1l!lchibit P1 col10ctively. Tho PW2 w:-:..o ~::ad put .'fas. 24,000/= fo one of tl1e recov·ered bags could only c::ieck a.;1c.'!. ~ find 8l1s. 4,000/= at the .police stationo It is tlw foregoing evidence -;;~::.a:~ led -~-'.ic ifopublic to 1 4 at tho duors of ti:1e now appellants a c:i21'g0 of rob0ery o l'ho appellants a.r c n ~1 e1y iJr,,....··ono .;....:;i;j J:L l... "J.:.i.,l.JJ.t:., 1w•~"" · •wy =•l Oi',.1..:.i.1. 9 rr1-r:i. L.L ,;,·IR·, .,,w ·-1,,· ··o --~o 1·0··-·•-·ED. J. ~; • 'i. l. Li , \.1. :u..:J.:1 1 ;.1 O.,i,.'\J.11.[!IJJ .. ':;tt"\ I:J3IDA and another one wl10 was acquHtoC:, f' ..J:i: . ~l ..J.i.:.-:,.-ul,ll·J. ifj1ese, were a:~ tl10 ·i;rial the first to the fifth accused persons respectively wb.ile bofor'e this CoUJ.'t tlw;;r arc now tl10 iirst "i;o ·;;~~<:: fou.rt:1 appellants rcspcc:t ively o In defence tho s&id appellants totall:: denied coinmission of the offenceo The f il•st appellant said t::..,,at ,:=d'tor policGmon liacl ordered l1im -!io open -!illo door 2.i1d he rcl'uc;od ·i;o do so, tJ.soy ·broke tl10 door and on entering seized his bag and radio bo:fo:co he was tc.l-:en to tl .e police 1 station and later to com.·t. 'l'ho first c1,ppGll5;.1t replied in cross- e::car,!il1ation tb.e..t the tendered 0xhi.0Hs wore Dot found in tlis 1·00:-.10 The second appellcmt on his part said ·t:.1at whereas at the time of his a.:crcst nothing was found in l1is room, the first appell2.l1t was found ~rith.:.c, b,}_3,. a brief case and a pa.ir of black shooso CL l10 third 1 a,."ld the fou:rth appellants said ·t:;.at a.t -~ho ·time of their arres·t they were not found with any oi -tho stolen p1·ope:rtyo The learned trial District l1iagis-cra:ce in convicting tl10 appellants relied on identification w:1iL:.: el.s.:)or::,-ciag -t~.lLlS o 11· l1he first accused was identified on t~10 scene of crime 1 by PW2 and PW4. 1 I1l1e items stolc;.1 (sic) from the complainant I s !1ouse was also found in :'iis room (first accused.:-room) o '.I1he second accused ·co fou.r-~h accused wore id011·i;ified jJ,1 the scene o:2 c:r:i.wo as there were bright liglltso It is my view ·;:;ha.:t alti~ough tho items wore in the house (room) of tho :2irst accused but it ,-i-as possible for his neighbours w:w were identified to tl1e scene of crime to be t:.1e ona (sic) who committed the off once " lil1d fa respect of the: defence case ;1e diGt:iissed it thus:- /o o,,olJ '~ . 4 .:.. n I f'L.!cL tl1cr~ tL.G f.\J~-v~l·J':: o/ ·1.::.~.o a . . CLl ;eel :;.1u:,1bcr 01:c; to i'cu.:r, 1-f,.."!:f·o ;:::;.·i;e::c t:.~0u-6~,-'~ (sic) aOOOlollilO:> I tl1crc:iorc Q(Jj,1iJl 1}..C\0 t~.1.2:b tl.!..c oc.1.so ai;ainst acct.:tsou. nu;_:-iJGl' ono to accused nLu:11cr four was p:c·o-•,lccl !Jo,:im1d roaso:::12.·010 dor.1bt 0000••0 " In a,;.1 often~ quoted case o:;: iLi,I:-H ..:J,•..:.:;:l Vo .i:l.e;pu"blic (1900) T.L.B.. 250, .tho Court of ..:.ppoal of :i.1an:-::;a,;.1ia hDs lc1id do,r,:1 principles -~o ho o. followed in deciding -~1.c questi021 o:c iclc,·r~-ii'ic2ticm oI. 2n accL:.sed porsono I a.2; aware -tJ::a-~ -t::.at was a cas,~ wl::.croby -~>c isst.::.::.; oi vi .,,,12l :i 1to;.y'.;if ica.tion of a h.:illCT o:Z tho decoE:sod wlio :..:.ac: s.,.;2.b:)od -;;~~o rlccoaaod 1-1fc:.::. a knife Oi.1 J...L b'"' S! i--'--'· __,_.1.2 .•.v -;;)1cr ,, •·as 1 ig:,.-~ 5:I·o:",l 2. lw.1:r ica,;.1c ·c:~o c::.i..:;st ;-1 ? ('~ c"tcW.~•-,,.,, .!··1i·ci1-'· Lr .JI,).. l.l . U.1 lamp cu:i:sicir) ·w:~c:.ce: -~;;_c '.;\C&bbing too:,,: l>h;Co'o /._c.r:~c :i:':,,c-'0s a:ro e;loarly J dis-t;:i..;;~uisha.blc, :.'.ro:il -;;:·,.ose ii1 t: . o pr0so;:1·~ appeal in t~ ..d-t ·b::i;t w2i.-s a · :::ieinou.s oJ:1&.gu co",cir.J a life and tllO cla.:i:lr ;1ight was graced wi.·~~1 a hu:r:r·icc1.110 lar.ir w:..:.i.1::: :L;.1 t~:is 01~0 tl-~o so·~-;;~1g is :t.1 circ ....;nsta.;.wcs of i.nctropolitan li:L'c w:i·c.:.~ 0loc·~ric •Jigl":t-o ..Ld. t ...;o c.::~a:r·ge- 110ro is tl1a·~· of l'O°b-)OI'Yo l:i:owGVO:C -~:1at COW't S:id~ a (j O 0- no cour·~ s:10::.lc: ac·~ on ovidenco of · 1 J.. d.. cm;n ' . n ica:iiion, rn1 1 oss a-11 possioi .. , · 1 l."ii:tcs .' . VlGl,,a . ' . of· mistaken idoirliif/ 2.I'O ol inir,ated a..-id -~:.,.c colU'-~ . - -·-----.- is sa·cisf iod tl12t th_o o,.; iclcnco boforo H is a·nso1L1t cly wat crt:iei:~J,; 11 ( ~nphasis supp~ iod) '.J.1l1at court -'0~1011 wo...1"~ oi.'l to lay mfaimtJJ,1 ::r.~_a::1dai'd of proof' 2:.1d :~ow ·t;ic trial cow.ts s).1ou.ld gu.ard against da;1 6 cro oi' lion.est but ,11isJi;al;:c;,,:-1 :! identification tlwug!J. fa no l:ard a.ncl f2st l'L:.loc:; dSS II O O o, 0 unlo,Js _-'chore ir.; ·r:.::.1own on ·i;:"o l'ccord a carcfLJ.l and conoiclorcd 2,.~alJ:.1is of 211 the SOlli:'OUllding Cll'CL1f:l[.;"~~1C(;3 o-.;: tho cr:'mo qcing tricclo rt3 wolJ.ld.~ :;;·oi·. c:.,;:a;:;,plo o:.;..:poc·,; -to find' on :l'c;corcl qr.wet io~ir:l f;l:::0~1 2.s -~:1c, :fo].lowing por.,0cl a.'1.d :rocolvod by ihia, t:10 conditions in ---~-..: w.... :.-J·· ... ·~ •c-,,.., .... ,"' -f,a'>--:-r:-,.. -··. /'""\"-, d ~~'-'"'.:.... 0 ,, • ..,J.. '-let vl•.,04 OOCUI'O , ·, rt ance, f OI"' ll1.J 1~r:1(rt:!:10T i-t ·wa.s daJ: 01'"' ~1 i 0 ht i,:.c, 11~1t.:·C~i0r tJ:1c.rc wt'. s good 01' poor 1 it_,~-.t :i.11(; a;c ·c.'.w nc or. c, and. /, •• 5 5 fUI't:wr whether t; . o wi·cnoss know or had soon the accused b0:i:'o:r·o OI' not ... o o o •• o "" iin~l 11 as to how to arrive a·i; good quality of' iclentifica-biono ,ufor example, when tho identific2.:~ion war:: L·,c,dc ·,Jf a •:r:i:~,10G3 after a long pc:ciod. of obscrva·tion or in sa·~isfactory condition? by a relative, a noi;_;~:..Dour, a, close friend, a workmate, and <;i1e li~{:O WQ t:.iii1k lH:; could :il1 those circurnstanco~, sai'oly convict on· t:1e ovidonco of identification., On ·c:;.0 other, hand where ·Lo quality of identiiication is poor 9 for example, whore it depended on a fleeting glance or n. longer o";)sovation filadc in di£ficul t cond.H:i.ons such as a V:i.$.l.al ide.1tification I.1ado i.11 a poorly lig;:rtod s-t:rcct, we arc of t]:10 considered view :that in sc,c:1 car.;os t:10 judge would ·bo perfectly on·ii:i.Uod to acquito 11 'l1lle case at .ha:ad is factuaHy on same lil1es as ·i;::..,.:t"~ oi' Di.C.i.U ~~Z&L Vs. . Republic Dar os Salaam Iligh Court Cri.L1il12.l 1.ppo;::l Ho.; 122 of 1991 (unreported) _in. w:li.cll after· a grot.:p oi abo.:d; 10 bandits ~lad broken into a house of t210 co;;1plainant ancl stolen property during night -~iino w::iile there was oloc-tric lig~·1t and t:.10 occupail"~E!. wore su.bjootod to tlirea.ts bJ us:u1g pangas and knivos 3 tllc co.mplainu;.1-b w:w had claimed. thctt lie could identify h.is attackers identified ancl arrested a. suspoct on t:10 next day at a nearby pombo shop. 'l').:is s"!.lspect on being convicted w2s on appeal to ·ti.is cmu·t acquitted on ·i;~1c bosis of :insufficiency of identification. 'l'hc trial magistrate is 1°of orrod to the unrepoI"tod case of I,ibwana I:. Jvla..cl1aro 2,nd l'.noth01° V. Republic High Court Cr:i.ri1irlal Appeal Noo 19 of 1991 (per Lugakingira, J.) whore tJ.10 crucial issue turned out to be that of :i.dontifica·~ion as in tb.is cc:so. Tb.o honourable Judge saids n The crucial issue wo,G, indced 3 ·cl1at of idmr~if'ication and the question is wiothor t.horc was evidence to justify a posHivo f :ii1ding on that issue. H seems t:1at it is noccsGc•ir;7 t·o be cloar on certain basics .. To identify a person a·~ tho scono of crjme at1d subscguontly to be able to point ·t;~iga :::,.a out is to register in one I s raind certain characteristics /,,o .. 6 r 6 pertaining to t~.:i.at person w~:.icb. characte- ristics can later be verifiod 2 :Jut it docs not consist raercly :ill sc1;/i.;.1g 1.'! I idont ifiod. hira"• (underlining is added) Of course I ai:l ;:;iindful and aware t~1at tho Waziri .~uani ca.so is of binding authdr:Lty Ji;o t;1is court wl1ile ti.'.o ·cwo ott.cr ca.sos decided by my two honourable brothers in this Court arc ol v01,y otrong p;srsuusive authority and I ar:1 obl igcd to respect tL.crJ. In this instant appeal we; observed above tb.e.t tho learned trial magistra.te did not bother to warn hilJsel:Z of tio da;..gors of mis·takcn but honest id..ntificationo lle only capi-~8.lifjOcl o:. a Ii).Ct tllat there WQJ.'e live electric/lights i;,1 tho·rojj)Jj), and t:.1at t,.:.o "vict:i.L1s icloatified tlleir attackers being t:.10 appollan·~s. 'Whereas. -~:.:o said prosecution witne'ases claim to have idontifiGd t.ie appellw.1tsJ ·but t_,oJ s;__.i.y noi;l1:i.ng about the three ot;.10rs not in court. -l'ho details o:'.: observation about thoso appollants 9 for oxaoplo 9 as "Go tl10ir appearance and t.!.loir attire is never 1 u1cntioned. .I1ho conditions wore not ::.·avourablo for those witnesses to make correct idontif ication of ·be bandits because tho witnesses were under • threat and the ~hole episode lasted a short interval o:I:· tii.ic. In the absence of description of botl1 tLo cl...ara.ctoristics and :features t:.1ey saw on tllo appellants that assured thcr:i ~!1a.t -~:.10 appollan ts we.re ones o:f' t:10 group of robb01'sj it is not possible -co rule out the possibility of i:nistakon idcnt:i.,ty. It is true that t::10 recovered HGills wero :i.'ot.::.dd. in a room whicb. was usually occupied by the first appellant bi..t thoro was suspicion that since a.t t~1c ti.i:10 of recovery of tl~ose i·~mo tho first appellant was not found inside tl:at r-oo;nj "lihe~ o was a posc;ibil ity tlla.t a:.zybody might have planted tl1oso stolon itoL1s tl.1eroo Po:r -~:.:o f ir1:.rt e.ppoJ.lant it would have " been different if at tllo tirne of recovery of t.i.20 stolen items, the first appellant was found to be in occupation of that room. f:r:om where tho stolen items were recovoredo /,eoo•7 t ' I f' 7 I therefore quash tho conviction :::ud sot aside t:10 scntc:;:lcc. Tlic appeal is hereby allowed in. its cnti.:rcJ.;y. The appclla.c1ts s?..ou.ld be released fro:Jl priso!1 forthwith unless, ot:.10rwiso lawfully :1old 0 Delivered hero in c:1ambcrs in. prosmco o:i:' Lr. LuCJ:1a ;:,ta·i;o J.tJ.;orncy for tho Rcpuolico ~-7~ ~~~ M. G. C. Kf.Ja(I - Pffi,1 (B.J.) 4/9/1995 l{.r DLR EC; SJJ., l.i'Jii.