20051026 TZCA Arusha

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: LUBUVA, J.A., NSEKELA, J.A., And KAJI, ).A.) CRIMINAL APPEAL NO. 15 OF 2005 WALTER s/o DOMINIC © OMUNDI TUMAINI s/o LUTHER ................ . APPELLANTS VERSUS THE REPUBLIC ......................................... RESPONDENT (Appeal from the conviction of the High Court of Tanzania at Arusha) (Msoffe, 3.) dated the 21st day of March, 20023 in Criminal Appeal No. 64 of 2002 JUDGMENT OF THE COURT KAJI, J.A.: In the District Court of Arusha at Arusha, in Criminal Case No. 129 of 2002, Walter Dominic © Omundi and "Tumaini Luther, who are the 1st and 2 nd appellant respectively, were jointly charged with. and convicted of the offence of armed robbery, contrary to sections 285 and 286 of the Penal Code, Cap. 16. They were each sentenced to the mandatory sentence of 30 years' imprisonment. The facts of the case can briefly be stated as follows:- During the night of 16/17 January, 2002, at about 04.00 am, Rehema Juma John (PW1), who was asleep, was awaken by the barking of dogs. She was sleeping together with Amina Hamisi (PW2) in the sitting room. She "lit" the lights. Suddenly the door of the room in which PW1 and PW2 were sleeping, was broken by means of a large stone commonly known as "FATUMA". Two bandits burst in. According to PW1 and PW2, the two bandits were the appellants, and that they identified them through the light which was shining brightly, and that they knew them before the incident. The bandits who were armed with machetes, assaulted PW1 by using the blunt side of the machete. The bandits stole therefrom shs. 500,000/=, a television set and a deck valued at about shs 750,000/=. The matter was reported to the police and the appellants were arrested on different dates. The 15t appellant was arrested on 7.3.2002, according to his evidence, and the 2 nd appellant on 1.2.2002. In their defence, the appellants denied any involvement in the alleged offence. The trial court was satisfied that the appellants were properly identified at the scene of crime. The appellants were convicted and sentenced as said. L .1 n Dissatisfied with the conviction and sentence, the appellants unsuccessfully appealed to the High Court. The High Court (Msoffe, J. as he then was) concurred with the decision of the trial court that the appellants were properly identified. The appellants were aggrieved by the decision. Hence this appeal. In their joint memorandum of appeal, the appellants preferred seven grounds of appeal. At the hearing, with leave of the Court, they added two grounds of appeal making a total of nine grounds of appeal. But basically they all revolve on identification, contradictions and or discrepancies. Before us the appellants appeared in person, unrepresented. The respondent Republic was represented by Mr. Kagaigai, learned Senior State Attorney. In essence the thrust of their argument in support of the appeal is that, if they had been properly identified at the scene, PW1 would have mentioned their names to the police, and it would not have taken so long for them to be arrested as they were at their respective homes all the time. The appellants further contended that, at the police station, PW1 had simply reported that she was invaded by two bandits, and that, she only mentioned them 4 when her statement was recorded on 1.3.2002 when they had already been arrested. The appellants also mentioned some contradictions and inconsistencies in the prosecution evidence, especially between PW1 and PW2 on who actually assaulted PW1. And between PW1 and No. C.2349 D/Cpl Paulo (PW3) on when the appellants were arrested. According to PW3, by 23.1.2002, the 2' appellant Tumaini had already been arrested. But according to PW1, when her statement was recorded on 1.3.2002, by then it was one day after the appellants had been arrested. These contradictions and discrepancies in their view, show that PW1, PW2 and PW3 are not credible, and that their evidence should be accorded little weight. On his part, the learned Senior State Attorney was firm that, since there was bright light, and PW1 and PW2 knew the appellants before, and the event took a considerably long time, the condition was favourable for a correct identification, and that the appellants were properly identified. However the learned Senior State Attorney conceded that, the source of light was not disclosed. But the fact that the light was shining brightly and the scene of crime is within Arusha City, he took the view that the source of light was probably electricity. The learned Senior State Attorney also conceded, the - I alleged contradictions in the prosecution evidence. But he was of the view that they are minor, and did not cause any failure of justice, nor did they prejudice the appellants in any way. The crux of the matter in this case is identification, that is, whetft€r the appellants were properly identified. It is common ground that, the offence took place at night. In numerous cases this Court has held that, where an offence is committed at night, the issue of identification is very crucial, and that no court should convict an accused person on mere visual identification unless all possibilities of mistaken identity are eliminated and that the court is fully satisfied that the evidence before it is absolutely watertight. The followings are some of the cases in which this principle was restated:- Waziri Amani V. R (1990) TLR 250. Rajabu Khalifa Katumbo. and Three Others v. R ((1994) TLR 129. Eva Salingo and Two Others v. R (1995) TLR 220. In the instant case, the evidence of PW1 and PW2 is that, they identified the appellants by means of light which was shining brightly. 6 However these witnesses did not disclose the source of the said bright light. It is common knowledge that the power and effectiveness of light depends on its source. A light from a "kibatari" or "chemli" is definitely not as powerful as that from, say, a pressure lamp or electricity. In the instant case, where no source of light was disclosed, we are left in doubt whether the alleged light was sufficient and favourable for a correct identification, free from any possibility of a mistaken identity. The learned Senior State Attorney argued vigourously that, since the scene of crime was within Arusha City and the light was bright, it can be assumed that, the source was electricity. With due respect to the learned Senior State Attorney, we are not persuaded by that argument however attractive it may appear. There is no evidence that every house within Arusha City is provided with electricity, and particularly the one in issue. This is a criminal case where the burden of proving the guilt of the accused beyond all reasonable doubts is on the prosecution. It is our considered view that, acting or such assumption with regard to the source of light, is unsafe, it is likely to result to an injustice to the appellants. It is not enough to assume that, since the light was VA shining brightly, it was sufficient for a proper identification, even if its source is not disclosed as we have already demonstrated. The learned Senior State Attorney also spent a lot of energy trying to persuade us to agree with him that since PW1 and PW2 knew the appellants before the event, and the event took a reasonably long time, there was no possibility of a mistaken identity. Again, with due respect to the learned Senior State Attorney, where the source of light is not disclosed, a court cannot be fully satisfied that the light was sufficient for a correct identification, free from all possibilities of mistaken identity, even if the identifying witnesses knew the suspects before, and the event took a long time. Finally, we wish to remark in passing that there are times when a suspect who might have committed the offence, could escape conviction merely because of laxity on the part of the prosecution. In the instant case, it beats our imagination why the prosecutor did not examine PWI and PW2 on this crucial issue on the source of light. Unfortunately, both the learned trial Magistrate and the learned Judge on first appeal did not address this crucial issue regarding the source of light. N . Since the source of light was not disclosed, it is unsafe to hold that the evidence on the identification of the appellants was watertight and that the appellants were properly identified. The benefit of doubt is to be resolved in favour of the appellants. In the event, and for the reasons stated, we allow the appeal, quash the conviction and set aside the sentence. The appellants are to be released forthwith from prison unless lawfully held. DATED at DAR ES SALAAM this 26th day of October, 2005. D. Z. LUBUVA JUSTICE OF APPEAL H. R. NSEKELA JUSTICE OF APPEAL S. N. KAJI JUSTICE OF APPEAL Vcertjfy that this is a true copy of the original.