20060724 TZHC Moshi2

-,,J, (~- .. \-..i' l "·,;... if -~- ~'/ IN THE HIGH COURT OF TANZANIA ATMOSHI (DC) CRIMINAL APPEAL NO. 133 OF 2003 (C/F DC ROMBO CR. CASE NO. 154/99) 0 SYLVESTER SAUTI ................. APPLICANT VERSUS THE REPUBLIC ...... ,................ RESPONDENT JUDGMENT HON. JUNDU, J. In the trial court, the Appellant and another accused person (not an appellant in this appeal) were charged with two counts in the charge sheet. In the first count, they were charged ·or··' ' with Armed Robbery els 285 and 286 of the Penal Code, Cap. 16, Vol. 1 of the laws. The particulars of the offence were that on 21 st day of May, 1999 at about 21.30 hours at Shimbi Mashariki Village within Rombo District in Kilimanjaro Region they jointly and together did steal three Bicycles make Phoenix valued at T.shs. 150,000/=, four Radio make Hitach/Panasonic 4 band valued at T.shs. 140,000/=, cash T.shs.338,000/=, the property of Gasper s/o Samwel and immediately before or after such stealing did use actual violence to the said Gasper Samwel to wit they wounded one Idda w/o Gaper on her left arm and on her left leg; and Siprian s/o Gasper was wounded on his right arm by using a panga in order to obtain the said property. In the second count, the Appellant and the said another accused person were charged with Gang Rape c/s 131 A (1) (2) of the Penal Code as amended and added under Section 7 of the Sexual Offences Special Provisions Act No. 4 of 1998. The particulars of the offence alleged that the Appellant and the said accused person jointly and together charged on 21 st of July, 1999 at about 21.30 hours at Shimbi Mashariki Village within Rombo District in Kilimanjaro Region, one after another did have unlawful carnal knowledge of one Idda w/o Gasper, a woman of 38 years old without her consent. The trial magistrate having heard the evidence of the prosecution witnesses and the defence witnesses, he was convinced that the prosecution case hinged on identification of the Appellant and his fellow accused. He found and held that after his evaluation of the whole 1 .... ~· evidence adduced in the trial court plus the exhibits produced therein the Appellant who was the first accused person had been well identified at the scene of the crime hence he convicted him on the two counts while the other person who was the second accused person was not identified hence he acquitted him on both counts. The evidence on record and as evaluated by the trial magistrate shows that the alleged accident of Armed Robbery took place at night when the complainant, P.W.1 Idda w/o Gasper; her husband one Gasper Samwel, P.W.2; and their child one Cyprian Gasper, P.W.3 were sleeping and the lights were already extinguished. The Armed robbers entered the house after breaking the door by a big stone. Three of the robbers entered the house and they had torches which were alight. Some of the robbers remained outside to keep watch and receive the stolen properties which were being given to them by those robbers who had entered the house. The robbers soon after entering the said house, they ordered P.W.2 to cover himself by bed sheet then started taking out bicycles, clothes and money. The Appellant who was the first accused is alleged to have taken P.W.1 from the bed, laid her on the floor then started raping her. P.W.l in her evidence at the trial court alleged that she knew the voice of the Appellant and also could see him very well due to the light of torches which the robbers had. She said that she could not know the other robbers or rapists who were inside the house with the Appellant. P.W.2 and P.W.3 in their evidence told the trial magistrate they did not see the other person who was the second accused inside the house on that nigh!. The Appellant in his defence evidence alleged that he had grudges with P. W .1 but the trial magistrate rejected it on the ground that the Appellant had been well identified inside the house when the offences were committed on that -' night. The trial magistrate took the evidence of P. W .1, P. W .2 and P. W .3 to be true and relied on the exhibits, that is P 1, P2, and P3 they had produced in the said court to show that they had been treated for the injuries they had sustained during the incident. He also relied on the evidence of P.W.1, the investigator who had visited the scene of the crime and had seen the broken door and the big stone used to break therein (Exhibit "P4"). The trial magistrate having convicted the Appellant for the said two offences, he sentenced him to 15 years imprisonment on the first count and to 30 years imprisonment on the second count and further ordered that he should compensate the complainant shs.338,000/= being the value of the robbed items or suffer distress in default thereof. Aggrieved by the 2 ,_., conviction, sentence and the order, the Appellant has appealed to this court against the same. In his Memorandum of Appeal, the Appellant has raised five (5) grounds of' appeal namely:- (!) That, the trial magistrate erred in law and fact in convicting the Appellant of armed robbery and gang rape, while the ingredients of the offences were not proved ,0 accordingly. (2) That, the trial magistrate erred in law and fact to rely on the evidence of identification of P. W.1 to convict the Appellant as charged. (3) That the trial magistrate erred in law and fact in convicting the Appellant depending on the evidence of P. W.2 and P. W.3 without corroboration with P. W.1. (4) That the learned trial magistrate erred in law by relying on the PF3 without informing the Appellant his right as provided for under Section 240 (3) of the CPA, 1985. (5) That the learned trial magistrate erred in law and misdirected himself in convicting the 0 Appellant without taking into consideration the defence of the Appellant which had raised reasonable doubt. Based on the aforesaid grounds of appeal, the Appellant in his Memorandum of Appeal has prayed to this court to allow the appeal, quash and set aside the conviction, sentence and the order passed by the trial magistrate and set him free. The Appellant appeared and argued his appeal in person while Mr. Rwegerera, learned counsel appeared for and represented the Republic/Respondent. He did not support conviction, sentence and the order passed by the trial magistrate on the Appellant. In my considered view, the main issue that needs to be considered and determined in this appeal is the identification of the Appellant at the·'scene of the crime. The trial magistrate had held that he was satisfied that the Appellant was well identified at the scene of the crime by the prosecution witnesses hence he accordingly convicted him. In his Memorandum of Appeal, the Appellant has vehemently challenged the finding of the trial magistrate on the issue of identification. He contends that though P.W.1 in her evidence claimed that she had identified him at the scene of the crime with the aid of torchlight and his voice, but the trial magistrate had failed to consider that the time at which the incident occurred it was midnight, P. W.1 was asleep and was suddenly woken up by the noise of the door which was being broken and was assaulted by the robbers who were many in number hence in such circumstances she would have been left totally disoriented as she would have been gripped with fear. On the other hand, Mr. Rwegerera 3 • •.fin his submission greatly faulted the trial magistrate on his finding that the Appellant had been well identified by the prosecution witnesses at the scene of the crime. I am greatly persuaded by what the Appellant has stated and the submission of Mr. Rwegerera that there was no sufficient identification of the Appellant by the prosecution O witnesses at the scene of the crime as I shall shortly demonstrate. First, the incident of the armed robbery took place at midnight and it was so sudden. P. W.1 in her evidence first alleged that she did not identity any of the robbers save that she recognized the voice of the Appellant as he was her neighbour but she later on alleged that she had identified him by visual identification. In my considered view, P.W.1 was therefore contradictory in her evidence as to her identification of the Appellant. Secondly, though P.W.1 had claimed to have identified the Appellant at the scene of the crime, she did not state the descriptions of her identification nor the term of the said disruption. She did not state, for example the appearance of the Appellant, colour, height or any mark in respect of the Appellant that she had seen on the Appellant at the scene of the crime. The evidence of P.W.2 ort the identification of the Appellant had similar shortfalls. In his evidence, P.W.2 stated that he did not identify any of the robbers by visual identification save that he had identified the Appellant by his voice as he was his neighbour. Equally, the evidence of P.W.3 on the identification of the Appellant was not reliable. He alleged in his evidence to have identified the Appellant by visual identification and his appearance but did not give descriptions of how he had identified the Appellant. Further, the investigator of the case, that is P.W.4 in his hearsay evidence alleged that he was told by P.W.1 that she had identified the Appellant by his voice. In my considered view, taking into account that the incident of the armed robbery in this case took place at midnight and that it was so sudden and quick and that the alleged robbers had flashed the torchlight directly into the eyes of the said witnesses (P.W.1 and P.W.2) and infact P.W.2 had been covered by a bed sheet, these circumstances were not favourable for proper identification of the Appellant at the scene of the crime. Thirdly, I have taken guidance from the past decisions of this court on the issues of visual identification and the necessity of giving descriptions of the identification and past decision of the Court of Appeal of Tanzania on the issue of identification by voice. In Shiku Salehe vs. R [1987] TLR 193 this court as far as visual identification is concerned stated as follows 4 • "(i) Before basing a conviction solely on evidence of visual identification such evidence must remove all possibilities of mistaken identify and the court must be satisfied that the conviction is watertight since the trial magistrate O considered these factors the conviction was proper" However, the trial magistrate in the present case under this appeal did not direct himself as stated by this court in the above decision of this court on visual identification of the Appellant. As regards want of description of identification and the term of description, the decision of this court in the case of Bushiri Amiri Vs R. [1992] TLR 65 is very relevant to the present case. It was held as follows "(i) The two witnesses ought to have given detailed description of the Appellant to the person to whom they 0 first reported about the theft before they had a chance of seeing the Appellant after he was arrested; the descriptions would be on the appearance, colour, height and any peculiar mark of identity; (ii) In every case in which there is a question as to the identity of the accused the fact of there having been a description given and the term of that description are matters of the highest importance· of which evidence ought always to be given". In the present case under this appeal, the prosecution witnesses, that is P.W.l, P.W.2 and P.W.3 did not in their evidence state detailed description of their identification of the Appellant nor the term of their description in respect of their identification. And as regards the identification by voice, the decision of the Court of Appeal in the case ofNuhu Selemani Vs R [1994] TLR 93 provides good guidance. In the said case, the Court of Appeal of Tanzania held "(1) It is notorious that voice identification by itself is not very reliable" Though, P. W .1 and P. W .2 in their evidence at the trial court had alleged that they had identified the Appellant by his voice as he was their neighbour, I go along with the decision of the above mentioned case that such identification is very unreliable. ' 5 Having faulted the evidence of the prosecution witnesses and the finding of the trial magistrate on the identification of the Appellant as above demonstrated, I hold that the appeal has merit and it is hereby allowed. I hereby quash and set aside the conviction, sentence and the order of the trial magistrate on the Appellant. The Appellant is hereby set free unless held Q) lawfully under the law. It is so ordered. L'\~ .,c AA ~"' _ ~"~~~ F.A.R. JUNDU, JUDGE 24/7/2006 Right of Appeal is explained. F.A.R. JUNDU, JUDGE 24/7/2006 24.7.2006 Coram: F.A.R. Jundu, J. For the Appellant: present For the Respondent: Mr. Rwegerera, State Attorney CIC: Matiku Court: Judgment delivered in the presence of the Appellant and in the presence of Mr. Rwegerera, learned State Attorney for the Republic/Respondent. F.A.R. JUNDU JUDGE 24/7/2006 ATMOSHI 6