20081124 TZCA Dodoma 1

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA \ (CORAM: RUTAKANGWA,l.A., KIMARO,l.A., And MBAROUK,J.A.) CRIMINAL APPEAL NO.2 OF 2006 . MASHAKA JUMA @ JAPHARI .•........................... :.................. APPELLANT VERSUS THE REPUBLIC •••••••••••••••••••••••••••••••••••••••...•••.•••••••••••••••••• RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Dodoma) (Mjasiri, l.) dated 2 nd November, 2005 in Criminal Appeal No.71 of 2001 JUDGMENT OF THE COURT 17th & 26 th Nov., 2008 KIMARO, l.A. .i In Dodoma District Court Criminal Case No. 310 of 2001 the appellant, Mashaka s/o Juma @· Japhari was jointly charged together with one Ramadhani Athuman @ Zungu with the offence of armed robbery contrary to sections 285 and 286 of the Penal Code. Ramadhani Athumani was acquitted but the appellant was convicted as charged and sentenced to a thirty year term· imprisonment. His · Ir appeal to the High Court against both the. conviction and sentence was dismissed. The prosecution case was very brief, comprising of the evidence of two witnesses only. On 3/12/2001 at about 11.00 p.m. Uhuru s/o Msabaha (PWl), the complainant, an electrician with the Tanzania Railways Corporation was walking home from the railway station after returning from Singida where he had gone for duty. He carried a bag containing his clothes and working tools, three hens and cash T. Shs. 20,000/-. It was his testimony that· upon reaching Majengo area, the appellant appeared from his right side, passed in front of him and walked towards the same direction. Then suddenly, four other people, two of them each carrying an iron bar, appeared from the to a nearby house to rescue· his life. While running he shouted for help. The appellant and the other thugs ran after him. As PWl reached the·-house in which he ran to, PWl pushed the door. 2 Unfortunately, no one. opened the door for him before the appellant held him by his neck. A struggle ensued between the two, and in the process, the appellant stabbed the complainant with a knife on his left shoulder. The injuries PWl sustained weakened him, and the other thugs who were with the appellant took advantage of his weakened position, searched his trouser. pockets and made away with the cash of T. shs 20,000/-which he had. It was further testimony of the complainant that he was able to identify the appellant because the house he ran to was sufficiently illuminated by electricity lights outside and the appellant was well known to him before as he lived in the neighbourhood. The owner of the house in which PWl ran to was Sudi Yakuti. He testified as PW2. According to this witness, he heard PWl ----··-·- c~shouting-for- help ''unaniua,- unaniuan~, ·.At=rrre=s-ame trme h-e ·tPWl')= ··'"' was pushing the main door of his house. PW2 corroborated the evidence of PWl on the intensity of the lights in his house. He said he could see what was taking place from inside because the house 3 ,, ;,, was sufficiently illuminated by electricity lights. The witness confirmed seeing the appellant holding a knife. He could identify him because he was very near to him, about four paces and was facing him. Moreover, the appellant was a familiar face as the witness said he always saw him at Majengo area. When the appellant and the other thugs saw PW2, they ran away. What followed subsequently was first aid assistance which PW2 administered to PWl and later, he escorted him home. It was then the other formalities of reporting the crime followed. The appellant in his defence gave a general denial that he did not commit the offence. Upon the· above evidence, the trial court: disregarded the defence of the appellant. It was satisfied that the offence against the appellant was proved beyond reasonable doubt and the appellant was sufficiently -identified as .. being the omrwho-co·mmittect it.· --He · · ·. · was then convicted as charged and sentenced as indicateq earlier. As already stated, the High Court sustained the conviction and the sentence. 4 •,.· .. • r-..-· . . • Still aggrieved, the appellant is before the Court with this second appeal. In his six grounds of appeal the appellant is mainly complaining that he was not correctly identified. It was his contention that the identifying circumstances were difficult because the offence was committed at night, excessive violence was used, the victim was terrified and there was no sufficient light to allow a correct identification. These conditions, the appellant contended, made his correct identification difficult. During the hearing of the appeal, the appellant appeared in person. The resp·ondent Republic was represented by Mr. Anselm Mwampoma, learned Principal State Attorney. The appellant opted not to elaborate on his grounds of appeal. He felt more comfortable to know the position of the respondent before he could defend them. The learned Principal State Attorney supported the conviction and sentence. He submitted correctly, in our view, that the only issue in this appeal is that of the identification of the appellant, the 5 - . question being whether the appellant was correctly identified. After appraisal of the evidence upon which the conviction of the appellant was grounded Mr. Mwanipoma said the evidence raised no doubt on the correct identity of the appellant. . The identifying circumstances, contended the learned Principal State Attorney, were favourable as the appellant was a person known to the witnesses before and the house where the incident took place was well illuminated by electric lights. Moreover, added Mr. Mwampoma, PW2 who was inside the house and was in no -danger at all testified on how he saw the appellant stabbing the complainant with a knife. Under such circumstances, the likelihood of a mistaken identity on the appellant was ruled out. He said even the identification made by the complainant cannot be doubted given the fact that he knew the appellant before ······-·-·---··---- · and--there was simicient electric light which··~enabletl· him tc:r=see=tl"!e,__..,..,_,_,..._ · --- --- ··· ·-·- appellant clearly. He added that the incident took about half an hour and that was another favourable factor for the correct identification of the appellant. Under those circumstances, the learned Principal 6 State Af;.t~:>rney argued, the identity of the· appellant could not have - ,_._ l:i_eeri'-mistak-en. He prayed for the dismissal of the appeal. •~;.4"!~~- -~ .- t;~~~E:· . .~.-~ . . .- The appellant had nothing of substance to reply to, apart from reiterating his grounds of appeal and insisting on his innocence. He prayed that the appeal be allowed. .r The case for the prosecution was simple and straight forward. There was no dispute that the offence of armed robbery was committed. The amount of cash which PWl had and the hens were stolen from him by use of actual violence. He was stabbed by a knife on the shoulder and this was deliberately done to enable the culprits take away the items from him. Both prosecution witnesses testified that it was the appellant ---who robbed--him -of his property-.--The appetl-ant--o~theccotheriland-is- -- -- --- 0 protesting his innocence by claiming that he was not correctly identified because the identifying circumstances were not favourable. Tt:le issue-for aeter-mination in this appeal, as correctly pointed out by 7 .. the learned Principal State Attorney is whether the appellant was correctly identified. In determining the issue of the identification of the appellant, the first appellate court said: "In this case both PWl and PW2 clearly identified the Appellant (Accused No.l). In their testimonies they both indicated that they knew the appellant as he was their neighbour, they even knew him by name. Their account of the incident tallied and there was no discrepancies in their statements. " In this-appeal ·it is not-disputed that-theoffence--c·-was-""eommitted ·- at night. In Raymond Francis Vs Republic [1994] TLRl00 the Court held that: 8 J____ ,___ - ,, ..) ,. "It is elementary that in a criminal case whose determination depends essentially on identification, evidence on conditions favouring a correct identification is of the utmost importance." As already stated the major complaint by the appellant was that because the offence was committed at night and it was difficult for the witnesses to identify him. We do agree with the appellant that in a situation where the offence is committed at night the question of visual identification should be taken with great caution. The Court in Waz!ri Amani Vs Republic [1980] TLR 250 gave various factors which have to be carefully evaluated by the Court in order to be satisfied that the · · appellant was correctly identified. These are: ·· · "The time the witness had the accused under observation; the distance at which he observed 9 him; the condition in which such observation occurred, for instance whether it was day or night time, whether there was good or poor lighting at the scene; and further whether the witness knew or had seen the accused before or not." In this particular appeal we do not hesitate to say that the identifying . circumstances were quite favourable for a correct identification of the appellant. Both witnesses testified that the appellant was known to them before. The complainant said the · appellant lived in the neighbourhood while PW2 said he always saw ·him at Majengo area. The offence was committed outside the house of PW2. The two prosecution witnesses said the house was sufficiently illuminated by electricity light and both of them could see completed within half an hour. That was sufficient time for the complainant to identify the appellant~ Another factor which also works in favour of the prosecution is the consistency in theevidenee· 10 of the complainant on who committed the offence against him. Throughout, he kept on mentioning the appellant by his- name as being the person who injured and robbed him. The appellant said in his ground of appeal that there was excessive violence and that made it difficult for him to be identified. We do not agree with the appellant on this aspect. In the first place this assertion is not supported by the evidence which was adduced in the trial. Besides, we have firmly indicated that the identifying circumstances did not make it difficult for his correct identity. And even assuming that there was excessive violence against the complainant, which was not the case anyway, PW2 was inside his house and he was not subjected to any violence and he made a correct identification of the appellant. _c_ In view -of-=what we tlave ·said, we see no'-~r~a~otT"for=faulting-·the · decision of the first appellate court. In the event the appeal has no merit at all. It is dismissed in its entirety 11 ;,. . ·,;-,:I!;· \-;- DATED at DODOMA this 24th day of November,2008. E.M.K.RUTAKANGWA . JUSTICE OF APPEAL -N.P.KIMARO JUSTICE OF APPEAL M.S.MBAROUK JUSTICE OF APPEAL I certify that this is a true copy of the original. ~--(;~-~-:-MWANGESI) ci\~ SENIOR DEPUTY REGISTRAR \~~, -~.__ 1, -- "------. ---- ..:::--..~ . - . 12