makulanga ally kachonjo vs republic 2007 tzhc 110 30 october 2007

IN THE HIGH COURT OF TANZANIA AT MTWARA CRIMINAL APPEAL NO. 35 OF 2007 FROM ORIGINAL CRIMINAL CASE NO. 60 OF 2006 IN THE DISTRICT COURT OF MASASI AT MASASI MAKULANGA ALLY KACHONJO...... APPELLANT VERSUS THE REPUBLIC............................... RESPONDENT DATE OF LAST ORDER - 18/9/2007 DATE OF JUDGMENT - 30/10/2007 JUDGMENT MJEMMAS. J. The appellant Makulanga s/o Kachonjo was charged, tried and convicted of armed robbery c/s 287 A of the Penal Code, Cap. 16. He was sentenced to thirty years imprisonment. He was aggrieved hence the present appeal. It was the case for the prosecution that on 12th January, 2006 at around 0200 hours at Nawaje village within Masasi District, Mtwara Region the appellant did steal two tins of maize, three tins of groundnuts, a pair of khanga, six pairs of kitenge, two shirts and one ‘panga’ all valued at TShs. 150,000/= the property of one Awasi Mapila. It was also alleged that the appellant used a gun locally known as “gobore” immediately before or after such stealing in order to obtain the said property. At the hearing of this appeal the appellant appeared in person, unrepresented. He said that he was arrested in Songea on 30/1/2006. He was informed that he was arrested in connection with a charge of assaulting someone in Masasi. The appellant went on to say that he was charged with two other people but they were discharged during the preliminary hearing of the case and the charge facing him was substituted with armed robbery. He asked the court to consider his grounds of appeal as shown in his petition of appeal. The respondent - Republic was represented by Mr. Luena, learned State Attorney. Mr. Luena, learned State Attorney, did not support the conviction and sentence imposed on the appellant. He gave his reasons for not supporting the conviction and sentence as hereunder. He said that while the charge sheet showed that the appellant was charged for armed robbery, the judgment of the trial court is written on top, “charge: Wounding c/s 228 (1) of the Penal Code.” Mr. Luena said also that there is contradiction with regard to the weapon used. He submitted that the charge sheet shows that the weapon used was a “gobore” but PW.1 and PW.2 said that the appellant was holding a bush knife (panga). Mr. Luena went on to say that there are some contradictions in the evidence of PW.1 and PW.2. In highlighting the contradictions Mr. Luena said that during examination in chief PW.2 said that she did not hear any gun shots but later she said that she heard gun shots. Also during examination in chief PW.1 said that he heard two gun shots but during cross examination he said he heard three gun shots. In addition, Mr. Luena said that there is no evidence which was adduced to show that a gun was used on the material day. He said that although the matter was reported to Mikangaula Police Station as well as Masasi Police Station there is no evidence that a Policeman visited the scene of crime. Mr. Luena submitted further that in his opinion the appellant was not correctly identified. According to Mr. Luena, PW.1 and PW.2 did not say how they identified the appellant. He said that it would have been better if a Policeman from Mikangaula Police Station was summoned to testify on what PW.1 and PW.2 reported concerning their assailant. In other words, Mr. Luena was questioning whether they (PW.1 and PW.2) mentioned the appellant to the Police as their assailant. Mr. Luena lamented also on the way investigation of the case was conducted. He wondered, for example, why no search was conducted at the house of the appellant and no efforts were made to establish whether the appellant was in the village on the material day. It was from those reasons and circumstances that the learned State Attorney did not seek to support the conviction and sentence imposed on the appellant. I think one of the most important thing to be determined in this appeal is the question of identification of the appellant. In other words was the appellant correctly identified as the person who invaded the house of PW.1 and PW.2 and cut them or inflicted the wounds on them? In dealing with that issue (identification) the trial Magistrate said, I quote: “The issue is whether the now accused was properly identified by PW.1 and PW.2 to have been the one who robbed them during the incident. I have seen PW.1 and PW.2 who are the victims of the alleged incident of robbery, that testifying before the court, who all said they had identified the now accused, with the help of a kerosene lamp, and they had known the now accused well even before the date of incident as they are all residents of Mikangaula village. I am therefore satisfied that PW.1 and PW.2 are credible witnesses and all what they had told the court is all true, and the fact that the accused is well known to Pw.1 and PW.2, there was no need for identification parade on the accused soon after his arrest as PW.1 and PW.2 named the now accused to the Police that he was the one who had robbed them”. The learned Magistrate went on to hold that: "The accused was properly identified by PW.1 and PW.2 during the incident of armed robbery, and the fact that the use of a panga is now termed ‘armed’ the accused cannot escape the criminal liability on armed robbery c/s 287A of the Penal Code as amended by Act no.4/2004” It will be noted from the judgment quoted above that the appellant was convicted on the basis of the evidence of Pw.1 and PW.2 who claimed to have identified him (appellant) and the trial Magistrate believed them (PW.1 and PW.2) to be credible witnesses. It is now settled principle that when it comes to credibility of witnesses it is the trial court which is better placed to assess their credibility than an appellate court which merely reads the transcripts of the record. However an appeal court can interfere with the trial court’s finding as to credibility of witnesses where there are circumstances on the record which call for a reassessment of their credibility. That is the position as decided in a number of cases including ALI ABDALLAH RAJABU V. SAAD ABDALLAH RAJABU AND OTHERS [1994] TLR.132, PIA JOSEPH V.R [1984] TLR.161, OMAR HEMED V.R [1983] TLR.52 etc. The question which arises is, are there any circumstances on the record of the present case which call for a reassessment of the credibility of PW.1 and PW.2? I think the answer to that question should be in the affirmative. Let me start with the position of the law on cases of visual identification. The leading authority in that respect is the case of WAZIRI AMANI V.R [1980] TLR.250 where the Court of Appeal held: “Although no hard and fast rules can be laid down as to the manner a trial judge should determine questions of identity, it seems clear to us that he could not be said to have properly resolved the issue unless there is shown on the record a careful and considered analysis of all the surrounding circumstances of the crime being tried. We would, for example, expect to find in the record questions such as the following posed and resolved by him; the time the witness had the accused under observation; thedistance at which he observed him; the conditions in which such observation occurred for instance, poor light at the scene; and further whether the witness know or had seen the accused before or not.” From the record of the case it was alleged that PW.1 and PW.2 knew the appellant before the incident and they managed to identify him, though it was night time, due to a kerosene lamp which was burning during the incident. It has been held that where an offence is committed at night where there is light, like a lamp, and the identifying witness knew the culprit before the day of the incident, there can be no doubt about proper or correct identification under the circumstances, and such circumstances are favourable for an unmistaken identity - refer to RAJABU KHALIFA KATUMBO AND THREE OTHERS V.R [1994] TLR.129 and also EVA SALINGO, MT 6222421 PTE PETER MAGOTI AND MT. 62218 PASCAL MGAWE V. REPUBLIC [1995] TLR.220. Although it is shown on the record that the witnesses, that is PW.1 and PW.2 managed to identify the appellant through the help of a kerosine lamp and that they knew him before I fail to understand why the same witnesses gave serious contradictory statements on matters which were alleged took place at the same time. For example, in his evidence PW.1 said that he heard a knock on the door and the words “hodi, hodi - fungua” and then he heard two gun shots outside the house. He went on to say that “My wife Rasia Nachacha opened the door after there was a threat that “Msipofungua mlango tutawaua” PW.1 went on to say that the appellant entered into the house and demanded money while holding a panga in his hand. He told the appellant that he had no money whereupon the appellant cut him with a panga on his left hand and took the alleged property and went away. The property which the witness was referring to included six pairs of kitenge, one pair of khanga, three tins of groundnuts, two tins of maize, two shirts and his panga all valued at Tshs.150,000/=. If we stop here for a while, let us ask ourselves, if the appellant entered alone in the said house how could he take all those things alone? During cross examination PW.1 said there were other people outside the house. He said there were five people at the scene. The question which arises is how did PW.1 see those people who were outside the house while he did not say that after encountering the appellant he went outside? Again, even if he went outside he did not say how he managed to see them in the darkness. Another thing is that during examination in chief PW.1 said that when the appellant entered his house and room he was holding a panga in his hand but in cross examination he said that the appellant was holding a gun. When we come to the evidence of PW.2 we also encounter serious contradictions. According to PW.2, on 12/1/2006 while asleep they were awakened by a voice or sound saying “hodi, hodi” from outside. Then suddenly the door was opened and the appellant entered in the house holding a panga in his hand and demanded money. According to this witness the appellant cut her husband with a panga and took away six pairs of kitenge, khanga, two tins of ground nuts, two tins of maize all worth TShs. 150,000/=. The said witness, that is Pw.2 said that after that (taking the said things) the appellant took her to another house where he knocked the door and demanded cash. According to PW.2 the owner of the said house had no money so the appellant cut him with a knife and went away. The witness said further that she did not hear gun shots but later on she changed her statement and said she heard gun shots. During cross examination PW.2 said that the appellant opened the door and was holding a panga. She said also that she heard some other people outside. If we compare the evidence of PW.1 and PW.2 we find differences in very important things. For example, PW.1 said that it was his wife (PW.2) who opened the door but in her evidence PW.2 said that it was the appellant who opened the door. Another important thing is that PW.1 said (during cross examination) that the appellant was holding a gun but PW.2 was firm that he was holding a panga. PW.2 spoke or rather told the court that the appellant took her to another house where he entered and demanded cash. This story is never mentioned by PW.1 the husband of PW.2 who were together during the incident. The story is supported by PW.3 - Rulyeke Salum but one wonders where was PW.1 when his wife was taken to the house of Pw.3? It is from those material contradictions that I doubt the credibility of PW.1 and PW.2. Although they said that they knew the appellant before, a claim which was not contradicted by the appellant, I doubt if they saw him or properly identified him during the night of the incident given the contradictions I have discussed hereinabove. It appears that the two key witnesses did not tell the truth on certain aspects concerning the incident. Had the trial Magistrate addressed himself properly to the issues raised hereinabove, i.e contradictions in the evidence of PW.1 and PW.2 he would have reached into a different conclusion with regard to the credibility of the two witnesses and proper identification of the appellant. I therefore find that the appellant was not correctly identified and as a result I quash his conviction and set aside the sentence of thirty years imprisonment imposed on him. n I order that the appellant be released forthwith unless lawfully held for some other cause. Order accordingly. G.J.K. Mjemm'as, ^Judge 30/10/2007 / GIVEN IN MTWARA THIS 30th day of October, 2007. Date: 30/10/2007 Coram: G.J.K. Mjemmas, J. Mr. Hyera, State Attorney for the Republic Appellant: Present in person B/C: G. Luoga, RMA Mr. Hyera: this matter is coming for judgment. Order: Judgment read over in chambers this 30th day of October, 2007 before Mr. Hyera, learned State Attorney and the appellant.