20021008 TZCA Dodoma

IN Till.: COURT OF ;~PPE,'.L OF Tli.NZJrnH. ...h.T -...... _.,....OODOMJ~ _,......,..,..,,-=,..-- CRil1INii.L ,1PPE.f,L NO. 140 OF 1999 BETWEEN Bii.Rl'ON MlfYJ.iliOJE. e O O O G 0 0 It 0 • i..PPhl..Ll,NT JrnD THE P.iiPUBLICo o o o •••• o • o. RESPON"D£NT (1,ppezJ. from the Decision of the High Court of Tanzania at Dodoma) C.~al'.!.£.'2-J••!!.") dated the 29th day of July, 1999 in .. ..............,-.-,;,.,.._.___,_.,_., JUDGMENT .,_ ..... ..,, ,., OF 'I'HB OOURT __ __.,. ._. This is,n second appeal. In the District Court of Dodoma, the appellant, Barton Mnyaloje, was convicted of the offence of robbery with vio~cncc contrary to sections 285 c.nd 286 of the Penal Code. He was sentenced to a term of thirty years imprisonment. The prosecution cc.se wn.s that on the fa.teful night, 4.4 .. 1995, the sl;iop of the complainnnt, Ji.1iderson sucayi (PW.1), wo.s broken into by bc.ndits. who illliucdiately fired a shot gun. li.rnong the ban di ts who entered the shop the o..ppcllnnt wc:.s allegedly identified by PW1 nnd PW5. In the course of the robbery various i tcr,1S were stolen frot::1 the shop. It wns alleged thc.t the appellclllt ••.• /2 2 wM found with D. lrn:ip which was one of the items of properties stolen from the sh:)p of PW1. The appellant a~r.1itted his involvement in the robbery. The trial Court relying on the evidence of PW1, PW3, PW4 and PW5 nnd the fact th.:~t the '"-ppellcnt wns found with the lamp and the alleged conf:~s:.:ion, convicted the appellnnt. The High Court (Kyando, J .) in co:.icurrence with the trial Court dismissed the appeal., The appellant who was unrepresented in this appeal, filed-a lengthy memorc:mdum of appeal. The essence of the memorandum of appeal and his ncldress to the Court raises two points• One, that the evidence on vi.s·1c.l identification was unreliable. The robbery took plc..ce at night when there was no sufficient light, and so, he wns not properly ident.ified by Pl:J1 and PW5. Second, tho.t the evidence based on the lamp (Exh. P1) was unreliable. Thirdly, having regard to the circumstances in which the alleged confession I was obtained, it was unsafe to rely on such evic:011ce. He said that he wns not found -with the lamp (Exh. P1) and that the al~egecl confession should be looked at ago.inst the background thnt he wo.s bee.ten and tortured by members of Sungusungu. • •• /3 .. 3 ... There is no g~insaying that evidence of visual identification j,.s of the weakest kind and most unreliable. For this reason, no Court should act on such evidence unless all ' •I''' • possibilities of mistaken identity are eliminated and that the ~ . ' Court is satisfied that that evidence is watertight. in "' numb.er of cases, this cardinal principle has been restat.ed by this Gou.rt and the Court of Appeal for Eastern Africa, s-ee for instanc?, '. ' (19&'.:>) E.A. 174 and ~ ( !...!._A (1966) EA 124. In o. CD.SC," where, ; D.S in this case, the identity of the accused is disputed, a close ' ruid analytical examination of the.circumstances in which the identification of the accused vms made by the w:i. tness is necessary.. -This is in order for the Court to satisfy itself that all possibilities of mistaken identity are eliminated.· In this case, as Mr. Mulokozi, learned Senior State Attorney for the respondent Republic, submitted, the evidence .relied upon for the identity of the· appellant was that of Pi':1, the ~omplainant ., ' and his brother, John Sudayi (PvJ5). We think it is :dosirc1ble at this stage to briefly examine their evidence -in this·. regard.· According to PU1, on the day of incident, at nbout 01.00 a.m. he was awakened from sleep after hearing a gun shot. Two robbers entered his shop. lie recognised the voice of the appellant and .... /4 ' ' I I 4 another person, one Msafiri Mas.inga, who v,::£ not charged with the. appellant.. As PW1 remained .ly.ing dovm outside the -door of· _,,/ ·the shop gue.rded by the sect'.l'nd robber, the appellant ord~red him 'i ! (Pvi1) to stand up and get into ·the sh~ on condition no_i; .t.o :rais& ·· . ' .. . .... . . . :·.: ~ :\• .~. ·;: ....•: .... ··~.;. -.· . }_ Later,when the 'n,obers had gone, he realised. thc..t a number ~f items including a lamp had been stolen. The foll~ing day, he reported .the in~ident to th~, poli~~ stati~. at ChamwinJIIC· .,, .. ,., . •·. ~ . PW1 a1s_.., · · · Besides the voi,0 ,.,f the appellant wh.ich h~ reQ~sed, . said thnt he ree~gnised the appellant ~ the meonlight •. Dthe~is-e,- . _ ~:;.,\.. . it is n~t shgwn en the evid~nce that· ~her'" was any other kind •f :' light at the time. On the.•. other hall'!,, P\-✓5 stnted that .when the . .. ., .. • t ·: I~ ,. ·• l i· 'i: rolibers 'broke int., the sh.op, he was cutside the shwp t~ clt°lend. . the call of nature. He identified the .-:;i]?pd,;Lan} because the .; ,- j· appcllan~ hc..d wraped himself wi. th a sl;Lirt arf\un&l the fa.tile. Furthermi..re~ he scid' he was abl:.e t,""· r e c ~ e -she appel.l.aili I s . ,:'ice because the appellant was kn~,1111 t'him ar:d there was "•sit ~oonlight '-'Utside. In su~h circumstances I. where it is. ~t clear frattr the ' ·i:.\ -..·:. ·•, evidence hr,w 10115 j_t ti,·ok f•r·\PW1and . "!.., PW5 \tt .4;.bserve the • . -.~}- ~ ·!. '1 ,~ · anx:11?-Ut and the fa~•\,that apart fl~ ml"o¢ght; there was no . ~thei~ light· at the _s,-.en·e :;~f. •rime' cnn tb:e quality- ~f·· tiie'' ..-. '• ,, ' ... ~ identi!i.~ti~n ,,f tl:ie appellant b·e described ns gi:,o"d end reliable? .••.•/5 .: 5 The visuc.l idcntifico.tion by P\'!1 2,nd P\:./5 in this case, we think, wcE mnde under whnt seems to us difficult conditions·. Apart from moonlight PW1 ru1d PW5 recognised the appello.nt by voice.· It is common knowlodge that the voices of individuals are susceptble to mistaken idcnti ty., It is therefore highly unsafe in such circumstnnces to base a conviction solely on the evidence of identification by voice. Where, as was the case here, the offence took place under poor conditions of moonlight, ruid the appellant was identified by voice, the trial Court should be cautious to look for other supporting evidencee In this case, both the Courts bel6\'J strived to look for other evidence in addition to the visuc,l identification by PW1 and PW2,. In the first place, supportive evidence was found in the lDIDp (Exh. P1) which it w.::.s held that it was found with the appellant.· It had the initials of il A., 8' 1 the short form of the complainant I s (p1;n) names, Anderson Sudayio While the trial mag.istrate, correctly in our view, looked to this piece of evidence as supportive of the visual identification of the appellant by Pl:!1 0.110. PW5, it is doubtful thnt the evidence pertaining to the le.mp is free from difficulty. J,'rom the evidence of PW1 w"1d PVJ5, it is not clear whether the appellant crui bo said to have been found in possession of the lamp. The pertinent evidence on how ••• /6 6 the lamp was found i.s thGt of Mussa Daniel lVic'.c;"Jc·. (PW4) , . a member of Su11gusun9-~ group. In his evidence, he smd on 26.!4-.1995, he wc.s instructed by the vill::i.ge Chairman to gun.rd a certain houpe whose owner W£1.S not disclosed. Accompanied by four other Sungusungu members, the appellv.nt was nrrested with the lamp. When the appellant was questioned about the lamp,_ according to PW4,. he admitted that the lntnp was his. It has seriously engaged our minds why Hi4 did not reveal the owner o.nd the exact house from where the appellant was found with the lamp. The evidence of PW4 does not also show wl:1.at other items were found from the search of the house. According to PW4,. the appellant had been seen selling soGJe items among those stolen frora P\'J1. '.lhere does not seem to be CJJ.Y n11Swer to the question H~1.y only the lamp WM the iter:1 thc.t w:J.S shm-m from ths sei:lrch of the house whose owner w21S not disclosed. In his defence, the appellc....'1.t stated that on 26., 4.1995, a.ft er talcing drinks at some local pomb e Gb.op, he wo.s at the house of his brother., A group of Sungusungu members came led by one Simon. His beg wDS sei'.'J'ched without finding ru1ything connected with tho robbery at the shop of PW1. However, the bag was tC-.:.-:c1. togethc:c with the l.:unp which was in the house. Because he WD.B severely beaten and tortured by Sungusungu, he a.dmi tted that the bag nnd the lamp were his in order to snve his life • .... /7 - 7 In the absence of cle2.r evidence that the appclL:u7t ··y-1ns found with the larap, it cannot be said with ai."1.y certcinty thnt the appellant had been linked with the robbery. If the appellont's bag was found in the house without any article among the stolen properties of PW1, and the lamp was also sepo.rately obtained fro1:1 the house under circumstances which are not clear from the evidence of PW4 or PW1, it is a matter of conjucture in whose possession it w::.s found., It may well be that the undisclosed owner of the house was responsible for the presence of the lnmp in the. house. Suspicion, however strong it nmy be, is not enough in a criminal charge to found a conviction., The other aspect of the evidence v,hich ,·1'C.S relied upon in support of the nppellnnt 1 s conviction WDE the alleged confession. On this, the eviclcmce of PW4 ruid PvB was thc.t when the appellant wo.s arrested and taken to the police stntion 1 he adrni tted that the lamp was his ru1d that he \'MB involved in the robbery. He was also prepared to pay PW1 for the properties stolen during the robbery. \Ile do not accept Mr. Mulokozi I s contention that the nppell2.11t's claim that he mnde the confession beco.use of torture by Sungusungu W2.S im afterthought., In our view, the following suspicious circumstnnces cast gro.ve doubts that the 'I 8 confession of the o.ppcllc.nt \-JO.S obtained through torture: and so, it wc.s unroliable, Fil~st 1 the se.:irch of the h,:nise from where the lamp wos obtai,10d, second, the presence of fiv-e members of Sungusungu conducting search, third, the non-disclosure of the norno of the ovmer of the house 2J:1d lastly, the unexplained absence of the police throughout the investigation of the case, a serious one involving urms in a robbery. Therefore, in the light of these o.spects, the conviction of the appellro1t wM dependant upon the remdning poor quclity of visual identification of P\-11 and Pr/5• The supporting evidence on the le4'Tlp (Exh., P1) and the appelL:11t 1 s alleged confession was, as just shO\m, highly suspicious. In the event, we are satisfied that the identification of the appellant was susceptible to mistc.ken identity. It is unsafe to sustnin the conviction on such evidence. Accordingly, we allow the appeal, qunsh the conviction, set nsidc the sentence c.nd order that the appellant be relensed ' f. forthwith unless otherwise la1.iTfully held. 0 •• /9 i. • - 9 D . T-,. ,~ ' . ~.1-· re day of October, 2002. - ' ~" '•• I I / \ \ ' ~~~ID17· ' )~ !, . " .·~-. ... ~ ~--•_..."".I. oSo L. RiJ 11~Dlli,NI 1 D. z. LUBUV1. Ko i3 oIC. LUG.iJCINGIRA JU.3'1.'ICE OF i.PPEJiL ~.,, .r.~• ... , ............. ~.--.,.,...-,-....-- ...... .....,,.....,_ I certify that this is a true copy of the origincl. ., f i '