Julius Daniel vs Republic DC Criminal Appeal No

IN THE HIGH COURT OF TANANZANIA AT MBEYA DC. CRIMINAL APPEAL NO. 46/2004 CRIMINAL CASE NO. 250/2003 JULIUS D A N IE L .............................................. APPELLANT VERSU THE REPUBLIC..........................RESPONDENT JUDGMENT MREMA J This appeal by Julius Daniel, who in this judgement is referred to as the appellant, is against the conviction and sentence by the leaned trial District magistrate Mr. Burugu. The appellant was charged with arson contrary to section 319 (a) of the Penal code, cap 16 Vol. I. of the Laws. In order to appreciate this judgment it is worthwhile giving appraisal to the evidence of the prosecution witnesses as adduced before the trial court. It was on 30/11/2003, one Abdallah Mwanyangala was returning from his errand. It was at night time. P W l’s house is near the house of his brother Joseph. It was about 8:00 p.m. (20:00 hours) and as he approached the house of Joseph he saw the appellant (accused) taking flight from Joseph’s house towards the village club. The appellant went past PW1 and the latter thought that he was running to reach some one ahead of him. Soon thereafter he (Pw2) saw Joseph’s house being gutted down by fire. Abdallah suspected the appellant and ran towards the direction DW1 took flight. He managed to reach him and effected his arrest. However, according to PW 1, l the appellant overpowered him and consequently released himself off PW 1 and disappeared. The witness insisted on cross examination to the effect that it was the appellant who set the fire on the house of P W l’s brother when the latter and his family were not present, the main reason being that he met the appellant running away from the ill-fated house. In their endeavour to corroborate P W l’s testimony, the prosecution called one AMONI S/O KASASA (PW3). This witness (PW3), who also knows the appellant as they reside in the same village, was met at a pombe club by the appellant on 30/ll/2003at about 8:15 p.m. Then PW3 heard the appellant announcing that he had set fire on the house o f Joshua (PW2). Thereupon, one Fred Mtafya (PW4) wake up, went outside to observe as whether the appellant’s assertion was true was true. It is also in the evident record that PW4 saw PW 2’s house being razed down by fire. That having confirmed the statement of DW1 to be true, he (PW4) joined hands with PW3 and arrested the appellant. But the appellant’s arrest, according to PW4, was short lived because DW1 managed to pull off from the hands of PW3 and PW4 by leaving his jacket and ran away. In defence, the appellant simply told the court that he had nothing to say save that he left the matter to the court to decide on the evidence available before the court. The trial Magistrate relied on the testimony o f PW1 whom he observed that he was the eye witness who saw the appellant fleeing away from P W l’s brother’s house (PW2) during which period the said house was burning. He further observed that there was corroborative evidence of PW3 and PW4 as already stated above. Above all, he said, DW1 never said anything in his defence to deny the allegations, thus drawing adverse inference against the appellant’s conduct to remain silent. P W l’s evidence is the crucial and decisive factor in this matter. Seeing a person taking flight from a scene of crime at night time is one thing and identifying him, it is no doubt a different matter. It is not a conclusive identification of the appellant (DW1) by PW1 who (i.e. PW1) merely stated that he saw “the accused running from the victim’s house towards the village club”; nor is it sufficient evidence to simply say that “I turned after the accused and managed to apprehend him after a distance but he overcame me and disappeared”. In cross-examination by the appellant, PW1 is on record as follows: “It is you who burned the victim’s house because I met you running from the victim’s h o u se------Other people who saw you said you had a gas - match box about 18:00 hours on the incident while you are known not a cigarette smoker” (emphasis supplied). The prosecution never led evidence to show who those other people saw DW1 with a “gas match - box”. It is also absolutely insufficient to simply assert that it was DW1 who set fire on PW2’s house simply because PW1 met the appellant running from PW2’s house. It was emphasized by the defunct East African court of Appeal in MOHAMED bin ALLUI V.R, 9 E.A.CA, 72, that “the fact o f there having been given a description and are matters of the highest importance of which evidence ought always to be given”. In the instant proceedings, PW1 never gave any description regarding the appellant’s identity ______ be it body physic, facial appearance, clothe - attire, et - cetera. The witness did not even say whether he knew the appellant - accused before that date. It has been re-stated on many occasions that in order to justify a conviction based solely on evidence of identification, such evidence must be water - tig h t_____ (see WAZIRI AMANI V. REPUBLIC [1980] T.L.R, 250 (C.A) and R.V.ERIA SEBWATO [1960] E.A, 1974). The evidence in this matter is silent as to source of light that enabled PW1 to identify - the appellant without any mistaken identify. Even if it were to be assumed for the sake o f argument that the source of light was the fire luminating from the burning house, more evidence would be necessary to show the distance between the fire and the point PW1 met the appellant running, but without also forgetting the difficulty there is in identifying fast moving o b je cts_____ such as DW1 who was alledly running away from the scene. Such evidence no doubt is lacking in the instant proceedings. This brings us to the well settled rule by the court of Appeal o f Tanzania in WAZIRI AMANI’S CASE (SUPRA), which is to the effect that the evidence of identification at night is of the weakest kind and most unreliable. Indeed, the trial Magistrate never ascertained all possibilities of PW 1 making a wrong identification of the person he saw taking flight from the house of his brother (PW2): As I have pointed out above, the trial Magistrate used the evidence of PW3 and PW4 as corroborative evidence to P W l’s testimony. But my own assessment of the evidence of these two witnesses (PW3 and PW4) has led me to a conclusion that their evidence is also very much doubt-full. As for instance, PW3 claimed that while he was seeping his local brew at a club, DW1 arrived there and announced that he had set fire on PW 2’s house. Both PW3 and PW4 claimed that they apprehended DW1 but the latter managed to escape them while leaving behind his jacket and a chain. But these two alleged items were never produced before the court as exhibit. Worse than that none of these witnesses gave any descriptive particulars of the attire worn by DW1, or any special descriptive marks on his body. It does not appear to me as well that DW1 could just out of the blue sky announce to PW3 and PW4 that he had committed the offence of arson unless it could be shown that DW1 was not mentally sound. That was not established at the trial court. In the light of the reasons I have submitted above, I am lured to agreeing with Mr. Nyenza, learned state Attorney, that the evidence of PW3 and PW4 was nothing but hear say statements. There is therefore no other evidence, direct or circumstantial, that could lend support to P W l’s testimony which in itself is apparently doubtful thus the principles enunciated in ABDALLAH BIN WENDO V.R.(1953) D/O E.A.CA, 166) were not metted out in the present circumstances of this case. On that score, therefore, I find this appeal to have merit and I allow it. In the result, I hereby quash the conviction, set aside the sentence and order that the appellant be set free forthwith unless he is otherwise lawfully held. Accordingly it is so ordered. A. C. \ JUDGE 10/04/2006 At Mbeya, in tH'e'presence of Mr. Nyenza, learned state Attorney, but in the absence of the appellant. A. C. MREMA JUDGE 10/04/2006