20061004 TZCA Arusha 1

., ,; J;n. G\,~~\ ~ C1v..<t G'-'<\ 'f"~,'-~o/- '\,",~\/~- 7¼ ~\~ ' ...q' ~C:.~l\.~ \ijS j ~\5,. _ \,jY 0,"'-,\ ~~w, \~ u--..-.. Ci"'-\y v,1"-,__~ ~~ i ~t.. ::; .. \ ~~'-~<::...""''7' C'< 'r\t>~- &'-~~\H,..., (:)..\. •tu~~Csi . I I ' ) I I . I~ THE COURT OF .APPEAL OF TANZANIA I AT ARUSHA I " (CORAM: LUBU\lA, J.A., RUTAKANGWA, J.A., And KIMARO, J.A.) I \ l - \ CRIMINAL APPEAL NO. 69 OF 2006 I I I , JIMMY ZACJ1ARIA ··············•• I *•····· ...................... APPELLANT 1 I VERSUS THE REPUBLIC ................................................ RESPON,DENT II :' I (~ppeal from the conviction of the High I , \ Court of Tanzania at Arusha) I I , l ·-. i ' ' (Msoffe, J.) 1 I . . elated the 29 th day of August, 2003 \ in HC Criminal Appeal No. 45 of 2003 I ------------ \ JUDGMENT o:F THE COURT I I I -- 29 September & 4 Octo ber 2006 1 KIMARO, J.A.: I The appellan~ was jointly charged with Tumaini Joseph (1 st Accused), Michael\ Memuruti (2"~ Accused), John Andrea (4tn Accused), Appeal Afrael Nnko (5 th Accused) and MT 72432 Pr. Jovin - I th · Fred (6 Accused) \with the offenoe of armed robbe·ry contrary to . II , sections 285 and 2$6 of the Penal Code, Cap 16 of the laws. The . . I ·' I . appellant was the 3rl Accused. I I I I II • II I I I I b 2 I . II 'I The charge against Appellant Afrael Nnko (5 th Accused) was " I withdrawn under section 98 (a) of the Criminal Procedure Act, 1985 i I . and he was discharged. The appellant, Tumaini Joseph (1 st Accused) I and Michael Metnuruti (2 nd Accused) were convicted as charged and i sentenced to thirty years term of imprisonment. The rest of the accused were a~quitted. I The appel:lant was aggrieved and he appealed to the High I Court. Tumaini Joseph and Michael Memuruti took the same I I position. Their appeals, numbers 47 of 2002, 40 of 2002 and 45 of I I 2003 were consolidated and heard together. The appeal by Tumaini I Joseph and Micthael Memuruti was allowed, but the one of the I I I appellant was dismissed. Still aggrieved, the appellant filed this I . I appeal. I I I The facts of the case can be stated, briefly, as follows:- 1 I I I On 4/09/2000, at 6.30 p.m. Naftali Mkunda (PW4) was I returning to Arusha from Mererani after closing his business on that I I day. He was driving his own motor vehicle, a landrover 109 with I Registration number MSG 185. He was with Mwenda Naftali {PWS) .. f 3 • .. I his son. On his way he picked Asia Mohamed (PW2) who was also 1 going to Arusha and other six young men who requested a ride from I I PW4. PW2, PW4 and PWS sat in the front cabin and the young men I I sat at the back ci>f the motor vehide. PW4 stopped the motor vehicle as requested by the young men I at Kilimani in Tengeru area, to allow for the young men to disembark I ( I from the motor ~ehicle. It was at this time one of the young men I I followed PW4 arid shot him at his right thumb. PW4 dropped from I I the motor vehicl$. The young man who shot PW4 demanded money I from PW4. PW4: told the young man who shot him that the money I I was in the motor vehicle. The other young men who heard PW4 I I telling the appell~nt where the money was, rushed into the cabin and ' I took a jacket which was left there by PW5 and then abducted Asia I ) I \ .J Mohamed - PW2! PW4 claimed that he was in a position to identify I I the appellant because he was the one who shot him and he remained I behind with him (or about half an hour after the other three young i men had abductetl PW2. He further claimed to have identified the appellant in an identification parade which was arranged by Frederick I I I I I • 4 Mrope, PW3, the Officer Commanding Station (OCS) at Usa River " Police Station. PW2 who '.was also at the scene of crime said he had T.Shs. I I 250,000/=. The money was kept in her apron which had a pocket. I I After PW4 was ;shot, the bandits followed her and ordered her to I descend from the I motor vehicle and lie on the ground. One of the bandits cut the pocket of PW2's apron and took all the money. Later, she was ordered by the six bandits to follow them and she did so. I She was rescued when she raised an alarm after a distance from the scene of crime arnd villagers came to her assistance. The other witness who was at the scene of crime was PWS, the I I son of PW4. This I witness testified that during the incident, he was I _j · hit by a stick on his chest and he ran to hide in a "shamba" to save his life. I In his defence the appellant protested his innocence. I He denied either beihg at the scene of crime, or being involved in the I identification par9de. He gave the defence of alibi that he was at the I house of his girl friend at the time when the offence was alleged to I 5 .. i have been committed. The appellant called his girl friend to testify for him. His girl friend, Beatrice Lucas Koteroi (DW3) corroborated I ! I . the defence of Ithe appellant that the appellant was at her house I I when the offenceI was alleged to have been committed and he never I I left her house after that time on that day. I I The trial m:agistrate convicted the appellant on the basis of the (__ evidence of the ;identification by PW4. The trial court was satisfied that the identification of the appellant by PW4 left no doubts. The trial court also relied on a caution statement (exhibit Pl) which was made by Tuma'ini Joseph (1 st Accused), that incriminated the appellant with the commission of the offence. As already stated, the appellant's appeal was dismissed by the I I High Court. The: High Court, Msoffe J. (as he then was) upheld the I I I finding of the trial court that the appellant was properly identified at I I the scene of crime and at the identification parade. I I I Before us : the appellant appeared in person. In his memorandum of ~ppeal filed on 07/09/2006, the appellant raised five I grounds. At the :hearing of the appeal, with leave of the Court, the I 6 I I I appellant added two, making the total grounds of appeal seven . . Essentially, the seven grounds of appeal are centred on one main 1 I I I complaint namely the evidence on the identification of the appellant I was not water tight. I I Mrs. Neema, I learned State Attorney represented the I respondent Rep ublic. On her part, she declined to support the 1 I conviction. In :supporting the appeal the learned State Attorney supported wholly the complaint by the appellant on his identification. I I She argued that'there was apparent contradiction in the evidence of PW2, PW4 and PWS on the identification of the appellant at the scene of crime. Starting w1~h the evidence of PW4 and PWS the learned State I I Attorney said thEr identification of the appellant by PW4 was doubtful. . I This is because PWS I who was with . PW4 said the incident occurred at 9.00 p.m. when :it was dark and he was not able to identify any of I • I. the bandits. However, on the other hand PW4 said he was able to I identify the appellant because he was the one who shot him, and the I I appellant remain~d with PW4 at the scene of crime for about half an i hour before the appellant decided to leave PW4. She also observed . " .. 1 7 I I ii that PW4 did not say what enabled him to identify the appellant. She was of the views that, taking into consideration the time when the I I offence was committed it was vital for PW4 to disclose what enabled I I I him to identify ;the appellant at the scene of crime. The learned I I State Attorney argued further that since the identification of the I I appellant at the ;scene of crime was unsatisfactory it follows that the I I I :...·:-... · identification parpde was of no evidential value. I I I The other :contradiction pointed out by Mrs. Joseph was with i I regard to the evidence of PW2 and PW4. She said the testimony of I PW2 was that :after PW4 was shot, PW4 ran into the nearby "shamba" and hid himself. I PW2 was then abducted by all the six I I bandits who committed the robbery meaning that no one remained I I at the scene of :crime. She argued that this contradiction created doubts in the evidence of PW4 who said he (PW4) saw the appellant. I I I She ended by saying that the identification of the appellant in I I I this case had a problem and it could not have been relied upon to support the convi:ction of the appellant. She supported the appellant I that his appeal should be allowed, the conviction and sentence be I ' quashed and set ~side. 8 This is a s.econd appeal which originated from the District Court I of Arusha. The: practice is that in a second appeal, the Court rarely interferes with the concurrent findings of fact by the courts below. It I I is only when there are misdirections or non-directions on the ' evidence by the first appellate court, that the Court can interfere. i There are several decisions of this Court which support this I proposition. A1i11ong them are the cases of Director of Public Prosecution v~ Jaffari Mfaume Kawawa (1981) TLR 149 and Goodluck Kyando v. R CAT Criminal Appeal No. 118 of 2003 ' I (Mbeya) (unreported). I I I The trial court accepted the evidence of PW3 and PW4 that the appellant was properly identified. The High Court upheld the finding I ! of the District Co,urt. In order to reject the finding of fact by the trial court, there must be strong and compelling reasons to do so. I In this case, the main question is whether there are strong and compelling reasons for interfering with the concurrent findings of facts by the courts below. We are of the considered view that this is I I a fit case for interfering with the finding and conclusion of the courts I , I below. 9 I The crucial question in this appeal is whether the appellant was I I properly identifiJd. I I I I We start with the charge sheet. It shows that the offence was I I I committed at 20!00 hours which is 8.00 p.m. on 4/09/2000. There is I • I I undisputed evid~nce of PW5 that it was dark. There are numerous I I I I decisions by the Court I that, where an offence is committed at night, I I ------· the issue of idebtification is very crucial. I The court should not I I I convict an accused I person on visual identification evidence unless all I I I possibilities of mistaken I identity are eliminated and the court is fully I I I satisfied that the:I evidence before it is absolutely water tight. The I case of Walter Dominic alias Omundi and Another v. R CAT ' I I I Criminal Appeal ~o. 15 of 2005 (Mbeya) (unreported) cited by the I I I appellant is one: among many others. The same principle was I I underscored by t~is Court in Waziri Amani v. R [1980] TLR 250, I Rajabu Khalifa Katumbo and Three Others v. R [1994] TLR 129 ' and Eva Salingo and Two Others v. R [1995] TLR 220. I 'i In the instant case it was only PW4 who said he identified the I I I appellant at the scene of crime. His evidence however, leaves a lot l I I to be desired. PWS was also at the scene of crime when the offence I I . 10 was committed As already pointed out, his testimony was that it was dark. PW4, did not disclose to the trial court what enabled him I I I to identify the appellant at the scene of crime. All that he told the ' trial court was a$, follows:- I could identify only one person among the perso',ns whom I carried in my motor vehicle ' r on th~t evening and dropped them at Relini ( ' area.:, The person whom I identified was the third ~ccused i.e. Gimmy Zakaria. I clearly identified the 3rd Accused because he was the one with whom I remained at the scene of ' crime ::while being questioned by him and yet ' he was the one who shot me with the gun. From the evidence of PW4 above, the question which arises is ' ' how was he able to identify the appellant, because PW4 has not said what assisted him to identify the appellant. It is common knowledge that when the offence is committed during the night light is the I' primary factor whi~h assists in the identification of a person. The light could come from any source. What matters is that it should be I ' strong enough to enable the identifying witness to see and identify I the person or accu~ed properly. Other factors, like the long stay of 11 the appellant m~ntioned by PW4 are secondary. In our considered view, the failure by PW4 to disclose to the trial court the source of omission which rendered his evidence suspicious and doubtful. The suspicion is enhanced by the contradiction in the evidence of PW2 and PW4. Whereas PW4 said he remained with the appellant, while the remaining three bandits left with PW2 whom the bandits abducted; the version of the evidence of PW2 is different. From her evidence she seemed to suggest that it is six bandits who ' abducted her and no one remained at the scene of crime. Such ' contradiction raises doubts in the credibility of PW4. This is a criminal case. The burden was on the prosecution to __ j prove beyond all reasonable doubt that the appellant was properly identified. In this case PW4 did not at all tell the trial court how he was able to identify the appellant. It was of utmost importance for PW4 to disclose to the court how or what assisted him in the identification of the appellant. It was not sufficient to mention only that the appellant :.stayed with PW4 for half an hour. Even if the appellant had stayed with him longer, still that would not make the I . 12 evidence of PW4 better unless he had disclosed to the court how he was able to idehtify the appellant. In this respect, and in view of the I deficiencies in :the evidence of PW4, the Court cannot be fully satisfied that PW4 properly identified the appellant. l I I I In the cjrcumstances, we are satisfied that as correctly I submitted by t~e learned State Attorney, the identification of the I appellant was not I proved to the required standard in a criminal charge. The evidence on this aspect was not water tight. With I respect, we think had the learned judge on first appeal addressed the I I unsatisfactory aspect of the evidence of PW4, he would have come to I I -· a different conclusion. Very likely he would not have dismissed the appeal. In the event, I and for the reasons stated, we allow the appeal, quash the conviction and set aside the sentence. The appellant is to I I be released forthwith unless lawfully held. I 13 .... . ... DATED at f.RUSHA this 4th day of October, 2006 . I 'I 'I D.Z. LUBUVA JUSTICE OF APPEAL E.M.K. RUTAKANGWA JUSTICE OF APPEAL N. P. KIMARO JUSTICE OF APPEAL I certify that ,this is a true copy of the original. i ;r.: I /:) I :Q \ YIKA) . . . ,/ -i" REGISTRAR -( '--;;_~, -- .