shaban so said vs republic 2008 tzhc 90 27 may 2008

IN THE HIGH COURT OF TANZANIA AT MWANZA APPELLATE JURISDICTION HC. CRIMINAL APPEAL N0.26 OF 2007 (Original Cr. Case No. 7 o f 2003 of the District Court of Mwanza) SHABAN s/o SAID ................................................... APPELLANT Versus THE REPUBLIC.................................................. RESPONDENT 12/3/2008 & 3/4/2008 JUD G M EN T RWEYEMAMU, J: In Mwanza District Court (DC) Cr. Case 7/2003 the appellant Shaban s/o Said was charged tried and convicted o f Armed Robberv c/s 285 & 286 o f the Penal Code, as amended. Me was sentenced to serve 30 yrs imprisonment. Dissatisfied, he appealed that decision faulting it mainly on five grounds as per his Memorandum of Appeal (MA) adopted at hearing. The evidence at trial was in brief as follows: On 31 12 2002 Pw 3 was at home asleep with his wife P w 1. About 2.00 a.m. at night, his house was broken into by a number o f bandits, who after getting in slashed him with a machete on various parts of his body as per PF 3 P. Exh. 1, submitted in evidence with no objection. The bandits stole a number of items then left. Thereafter, Pw 3 and his wile P w 1 went outside their house where their children Anitha and Sudi (P w 2 and Pw 4) who were asleep in another house very close by, told them “ baba tumcmwona na Shaban"- meaning kwe also saw Shaban among the bandits’. According to the witness, Shaban the accused now appellant was employed as their mason. Thereafter, Pvv3 was taken to the police then hospital by neighbours, while his wife; other neighbours and the police went to arrest the accused. P w 1 testified to have been told by Pw 2 - their daughter immediately they went outside their house after the attack that their (fundi) -mason (the appellant) was among the bandits; that when they told him “ u m etu g eu kd \ he responded “ l i m e s a n u k a According to her when the police came they revealed the appellant’s identity and she accompanied them to the appellant’s house where he was arrested the same night, and that nothing was found on him. According to the witness, the appellant worked on their house for about a month earlier, including repairing the lloor of their bedroom. That version was supported by Pw 2. She testified that they (meaning her and Pw 4) were sleeping in different house nearby (few yards away). After they heard their parents shouting, they looked out from the sitting room and saw the appellant who had machete. They were able to identify him because there was a tube light on, and the appellant was a person they new well before - he used to build their house and knew' all the house surroundings. She then asked the appellant “ umetugeuka ”, (you have turned against us), the appellant then told his colleagues “ lim esam ika and they run " away with the properties they had stolen. She went on to testify that she and her brother Pw4 went outside thereafter, neighbours came and they informed them that they had identified the appellant; they also disclosed the appellant’s identity to the police who arrived soon thereafter. P\v4,s account - regarding their identification o f the appellant, the questioning put to him and immediate disclosure of his identity was similar to that o f P\v2. According to the police investigator Pw 5, the appellant was arrested by other policemen on the night of the incident and brought to the police station, where he interrogated him and the witnesses, after which the appellant was charged. The DC after warning itself that the only evidence against the appellant was that o f visual identification, was satisfied that the said evidence left no possibility of mistaken identity and was absolutely watertight as to find conviction. The appellant thinks otherwise. He submits first that the evidence o f identification was not watertight as conditions o f identification were not ideal - witnesses failed to disclose the appellant’s identity at the earliest opportunity, the identification was not coupled with precise description of his 3 features or clothing. Further that the identification evidence by Pvv was hearsay, and the same could not be corroborated by that of Pvv2 and Pvv3, who were members of the same family. Last, that his Alibi was not considered by the DC. At hearing o f the appeal, the Republic through Mr. Mkcmwa state attorney supported conviction. Responding to the appellant’s MA, he submitted that, the appellant was clearly identified by Pvv2 and Pvv4, because despite the fact that the incident occurred at night, there was light from a tube light which was on, and the appellant was a familiar person who used to work for them as mason building their house. As regards immediate disclosure of the accused’s identity, he submitted that the evidence on record shows otherwise. The appellant’s identity was disclosed immediately which was why the appellant was followed in his house and arrested the same night, as testified to by Pvv* a Police Officer who investigated the case. He submitted further that as proof of their credibility, the evidence o f Pvv was consistent and similar in all material particulars to that Pvv4. Mr. Mkemwa went on to submit that the evidence o f Pvv2 and Pvv4 was positive evidence o f visual identification which did not require corroboration. Regarding the complaint that witnesses were from the same family, he submitted that the law does not bar testimony o f witnesses from the same family nor does such a fact make their evidence less credible. As regards the appellant’s submission that his alibi was not considered, he submitted that the same was considered but not believed because the proceedings at p.2 indicate that the accused claimed to have been at home asleep where he was arrested at 2.00 am. The issue for decision is simple namely whether the appellant was properly identified as one o f the culprits at the scene o f crime and therefore whether his conviction was founded. The key issue in this case is that of identification. I have carefully considered the testimonies o f Pw2 and Pw4 and agree with the D C ’s conclusion and Mr. M kem wa’s submission that; conditions present at the scene o f crime favoured correct identification- there was sufficient light from the tube light/security lights; the identifying witnesses were in a house few paces away thus observation was done at close range; they had ample time to observe the appellant from when their parents house was broken into until they questioned him before he run with his colleagues. As regards the appellants’ submission that the identifying witnesses did not give a precise description o f his features, I find the same misguided. Such a description is not necessary when the evidence shows that the appellant was very familiar to the identifying witnesses Pw2 and Pw4. My conclusion regarding the appellant’s identification is fortified by two factors: First the witness’s “ability to name a suspect at the earliest opportunity (was) in all-important assurance o f their reliability ”, as it has been held a number o f times by this court and the CA. Second, the consistency and similarity o f the identifying witnesses’ testimony all go to show credibility o f their testimonies. I also find the learned state attorney’s submission regarding the evidential value o f the testimony o f witnesses from the same family to be a correct statement of the legal position. What matters is the credibility o f such persons as witnesses, unless there are circumstances to suggest a conspiracy, o f which on the evidence on record, there were none. There was no evidence to suggest that the witnesses had a score or grudge against the appellant-neither did he suggest so when cross examining them. Having so concluded, I do not find it necessary to dwell on the issue o f alibi. The alibi that the appellant was asleep in his house at the material time does not render itself to proof either way. Before concluding, I should consider the fact that trial in this case was conducted by a number o f magistrates. According to the record, trial commenced on 13/2/2003 before Mtambo DM, until 2/7/2003 after evidence o f all key witnesses P w 1 to Pw4 had been recorded. Then the appellant unsuccessfully applied for the magistrate to disqualify herself. There was an inspection note by the RM who opined that the trial magistrate should proceed in the matter. After several adjournments, the trial magistrate disqualified herself on 1/10/2003. On subsequent dates, the accused was absent (recorded as being at large!!) until 20/1/2004 when he appeared before Mashauri RM and prayed that the case start afresh. His prayer was denied, the court ruled that there were no reasonable reasons for the case to start afresh and that “permitting the prayer would be tantamount to deny and delay o f justice That RM proceeded in the case, heard evidence o f Pw5 and the defense then prepared the impugned judgment. The trial magistrate acted properly in terms o f section 214(1) o f the CPA. On the facts o f the case and having considered the evidence o f Pw 1 to Pw4 as recorded, I am o f the view that the appellant was not materially prejudiced by the change of magistrate. In the final analysis, I find the appeal to have no merit, dismiss it as regards conviction as well as the sentence o f 30 years which is the statutory minimum. R. M. R W E Y E M A JUDGE 27/5/2008 Order: Case file and Judgment forwarded to District Registrar HC Mwanza, for delivery to the parties and execution o f the order. R. M. RW EYEM A JUDGE 27/5/2008 MTW ARA HC