20081204 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA ATDODOMA (DC) CRIMINAL APPEAL NO. 91 OF 2008 (Original Criminal Case No. 393 of 2004 of the District Court of Dodoma District at Dodoma) HAMISI HUSSEIN AND 2 OTHERS ......................... APPELLANTS VERSUS THE REPUBLIC ................. RESPONDNET Date of Last order: 29.10.2008 Date of Judgment: 04.12.2008 JUDGMENT Hon. G. J. K. MJEMMAS, J: The .three .·· appellants. · .n.iimely, Hamisi Hussein (1 st -· ... --· . - .. - · .. appellan-+) Mag'ati Mwandula (2nd appellant) and Gobola Mjenda (3 rd appellant) who we're the l st, 2nd and 5th accused . . . persons ,respectively were convicted of armed robbery and 1 ~~~-·---·-------=--------------~ unlawfully causing grievous harm in Criminal Case No. 393 of 2004 of the District court of Dodoma. There were five accused persons bl)t two of them (3 rd and 4th accused persons) were acquitted~ Each of the appellants was sentenced to serve a · term of thirty years imprisonment and twelve strokes of corporal punishment for the offenc~ of ,armed robbery and a· term of one ·year imprisonment on each court of unlawfully causing grievous harm. The sentences were ordered to run concurrently. The appellants were also ordered each to pay Tsh 200,00/= as compensation to PW 1 and PW2. They were aggrieved hence the present appeal. The facts giving rise to this matter are· that on 17 .11 .2004 PW l , namely are Liberatus Fabian Lujuo qnd PW2 - Fransiska Lujuo who is the wife of PW 1 were at their home in Kongango village, Dodoma Rural District. While at home around 1.00am . t the two (PWl and PW2) were invaded by a group of .six people. . ·The strangers or rather intruders demanded to be given money . . ~ and in the course of demanding money they assoulted .P.yY·l ~ -, and PW2 with a· "panga" and clubs. A gunshot was also fired . \ by the intruders. They managed to take some money . and . othe~ ... · shop items and left the couple (PW 1 and PW2) seriously injured~· An alarm was raised and people (villagers) went to the scene ·· - of incident and the victims were sent to hospital the same . .. 2 night. Some of the -culprits/suspects were also arrested the· same· night. The appellants have filed a joint five point memorandum of appeal. At the hearing of the appeal they appeared in person and unrepresented. All of them requested for leave of the court to file additional grounds of appeal. Mr. Mayeye, learned State Attorney who appeared for the respondent - Republic had no objection to the prayers so each· of the appellants was allowed to file/state his additional ground(s} of appeal. Otherwise the appellants did not have much to say or add to elaborate their grounds of appeal. Mr. Ma"yeye, learned State Attorney started his submission by addressing first the additional grounds of appeal as raised by the appellants. He started with the complaint of the first r appellant that he went to the scene of incident in response to the alarm which was raised but he was . not arrested there until 5.00 am. He asked if he was identified at the scene of incident . . why wasn't he arrested immediately. Mr. Mayeye submitted that-it was not true that the first appellant was arrested at 5.00 ••• 'I, am instead th~re .js evidence of PWl that t~e_ appcirllant was in ·t the same car which carried him the same night after· the incident. He said that that piece of evi_dence shows that the · first appellant was arrested the same night ofthe_incident With 3 · regard to the complaint of the second appellant that if he was correctly identifie~ why did it take the whole day before he was arrested Mr. Mayeye said th.at the second appellant was not arrested on 18.11.2004 in the night as alleged. He said that the record shows that PW3 went to the scene of incident in the morning of 18.11.2004 and found out that the first and second appellants had already been arrested and were in the village lock up. Concerning the complaint of the third appellant that ! the court erred to admit his caution statement because he did not make it, Mr. Mayeye said that the complaint was an after l~ thought because the record of the proceedings shows that I when the statement was produced in court the third appellant f 1 who was the fifth accused person did not raise any· objection. fI i The learned State Attorney proceeded to deal wjth the main joint petition of appeal. He submitted that the first ground r of appeal has no merit and it is an afterthought because when the caution statement of the third app~llant who was the fifth accuseq p_erson was tendered in court the appellant did not raise any objection . . •.• ,,,, · Mr.' Mayeye responded to gi:ounds of appeal number two · and three together - because he said they all refer to the question of identificdtion of the appellants. He submitted that during the hearing of the case PW 1, PW2, PW 4, PW 5 and PW 6 4 , \ ' sa.id that they identified the appellants at different times. PW 1 . said that he identified the first accused ( l st appellant), third accused and the fifth accused (third appellant) due to light from a hand lamp. He also said that he identified them because he knew them before and lived with them in the same village for about 15 years. PW 1 said also that after the incident he informed his neighbours as to what happened and asked r for their assistance. Mr. Mayeye faulted the evidence of PWl on two grounds. First he said PW 1 did not say in his evidence whether he mentioned the names of the culprits. Secondly, he did not mention who were the neighbours. Mr. Mayeye _said that is a weakness in the evidence of PWl. With regard to the evidence of PW2, Mr. Mayeye said that , , it was not very different from that of PW l. He submitted thot PW2 ,. said that she identified accused No.1 that is, the first appellant and accused No.5 who is the third appellant in this appeal. He stated further that PW2 claimed to have identified them through the help of a lamp but· she did not clarify what.· kind of. lamp. Mr.· M·ayeye was··also uncomfortable with th~ evid_~nce-of .. ·,. PW4 who, said - that.,. s·h~e-- identified the· Hrsr~·appell6.rit . .,, .·dtrst . ~ , · accused) second appellant (·second ac·cused) and the fourth - accused who was acquitted by the court. ·pw4· also· said-· th;t 5 r=--1<--- - ..............................___ ' :__ . · she managed. to identify them by the help of light from a hurricane lamp [Toa ya chemli]. She claimed also to have identified them because · she knew them before and she·· I mentioned them to the people who came to the scene of incident. Mr. Mayeye faulted this piece of evidence of PW4 because she did not mention the names of the people who she reported the names of the appellants. Mr. Mayeye did not also support or approve the evidence of PW5 who said that he went to the scene of incident and identified the first appellant (first accused) and the third appellant (fifth accused). PW5 said that. he managed to identify the two appellants because of the light from a hurricane lamp. According to the evidence of PW 5, one of the culprits took out a "sime" and he (PW5) decided to run away to the house of "Diwani". The learned State Attorney faulted this piece of evidence on the ground that PW 5 did not say whether he mentioned to the said "Diwani" the names of the people he saw. The learned State Attorney submitted that the whole- evidence concerning. identification of the app_ellants is· not watertight and does not meet the test laid down in the case of Waziri Arnani. ., In elaborating the point he said that ~ f . ~ most of the witn~sses did not say whether they mentioned the •lll names of the appellants before. the people who responded to the alarm raised. He went· on to argue that none of the 6 .·-': . .. ... :"-·; ;9:.)~~.,.,,.. ;~ . - -· -~- s~~t;~~---'-¥.°7~~ people who responded to the alarm were called as witnesses · to collaborate what the victims said. He. also said •that" the witnesses did not say how much time did they spend with the culprits/appellants .. Lastly he said that it was not clear how the witnesses managed to identify the appellants from the lamps because it is not shown_ whether the light was bright or not. The learned State Attorney concurred with the argument of the appellants that they were not_ found with anything connected with the incident and that the case against them was riot proved to the required standard. In otherwords, the respondent. - Republic did not s_upport the conviction of the appellants. have carefully considered the grounds of appeal as raised by the appellants and also the submission which was made by the learned State Attorney - Mr. Mayeye. I have also r read carefully the proceedings and judgment of the trial court. In my· humble· opinion there are two main issues for determination in this appeal. The first issue and which is the most important one is whether the appellants were properly identified. The secqnd issue concerns the complaint of the cippellants on the caution ;tatem'ent of the fif~h accused who is ·- the third appellant "in this appeal. · 7 The law relating to visual identification is now settled. In the case of Waziri Amani V. R (1980] TLR 250 it ~as stated that: "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 no 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; the distance at which he observed him; the conditions in which such observation occurred for instance, poor light at the scene c::ind further whether the witness knows or had seen the accused before or not." It has also been held out that where an offence -1s committed at night where there is light, say a lamp ar:.~ the identifying witne~s" ~ew the culprit before. the day of the incident, there can be no doubt about proper identification under the circumstances, and such circumstances are favourable for an unmistaken identity:- see, Rajabu Khalife 8 'l:'1:!i"!liE!'!f;Ji:lclk:.U·ll\ltj'c"',"":-···~";'-',,!"'~-,,-.:. . -·~- ec!!,c:r~~:,..;').'"~,l ~; ,pi~ ,,,_ ~-~ ....,. ·- -·- ·, · ·b;.;, . \ , I . /,· 1· Katumbo and three others V R [1994] TLR 129 and Eva salingo, . .· - MT 6222421 PTE Peter Magoti and MT. 62218 Pascal Mgawe V Republic [1995] TLR 220. _ The evidence which led to the conviction of the first appellant who was the first accused person at the trial was given by PW 1, PW2 and PW 4. The question which need to be answered is whether the first appellant was properly identified. PWr said that he identified the first appellant under the following circumstances. First, he said that six men invaded his room and .he identified three of them including_ the first appellant (first accused). He said, "I could identified (sic!) them through the hand lamp which was lighting" r So PW 1 managed to see and identify the first appellant because of light from a lamp. It is true that he did not say what . kind of lamp it was but there was light in the said room. Second, PWl said that he knew the appellant before. He knew· him for the past fifteen years and that they were living in the same_ , village. ... The first . 9ppellant did. nof dispute that :·he was known . . . . by .,. ,;. . . . PWT'before the incident. Third, PWl said that the intruders beat. _hi\_ wife while demanding to be given money obtdined fro-m . • ·.-the sale of -a motor vehicle -and maize. According to this ·9 witness, the intruders took his wife (PW2) to the shop to show them . money and brought her back while saying "Tumuue, Mchinje". t That implies that PWl had enough time to observe the culprits. Fourth, PW 1 said that the first appellant told him "Kwa hini unaniangalia". Fifth, PWl said also that after raising alarm he informed their neighbours as to what had happened and asked for help. He stated that "we informed our neighbours as to what had happened and asked for help". That statement could mean a lot of things but in my humble opinion that did not necessarily mean that PW 1 did not identify the first appellant. As shown hereinabove the witness (PWl) • .had good opportunity to identify the appellant without any mistake. The evidence of PW 1 is also supported by the evidence of PW2 who was in the same room with PW 1. when PW2 was cros,s examined by the first appellant (first accused) she said; " I identified yo~ because I kflow you before and I was assisted by Jh.e .. .,,.. light of lamp ,· , , . on that night. . . . light my-lamp from 6.00 pm and lit off at 6.00 a.m the following morning"· . . .. --·_,:~ .. .,-,er ·•· . . She .also . ~• . - stdted during cross examination by the first appelldnt .. . that; "You and your gang forced me from the room to the· · verander, and had an ample time to identify." · I very much agree with what PW2 said that she had ample time to identify the culprits· because according to her evidence and that of PW 1, the culprits ,took . her from the r9om to the verandah and back to the room. She said, I quote; "1 st Accused ordered us to produce some more money.· I took the 1st accused and his gang to the verander where my children had some more ' money ... I missed the money at the , .verander and they took me back into the room while still beating me. While in the room the 1st accused told the others that "let us kill her" I then put on a stool on my head so that I could not be hurt by the pangas which they were using by assaulting me. I then gave them Tsh .,. 300,000/= then I heard a gun shot again." It is my humble op~nion that PW2 -·also identified the first appellant during the night of th~ incident. She knew; tl;)e .l st . . . appellant before, they are neighbours and that there was light -~ ,.._ _! •• from a lamp in the roorn ·and she had ample time to see and • .. --1 · · identify" the· culprits ~spe<:jalry t~-~ 1st appellant, as she said .;r ...; -.- .. . during cross examination. ~ 11 - - - - - - ·- - - - - - - --- "You are neighbors and I know you since you were born, and during the day you came to our house ~ and asked if PW1 was present. This was before the incident took place." ,Another witness who claimed or ~aid that she identified the first appellant is PW 4. This witness stated, I quote: "In 17. 11.2004 at about 1.00am I was sleeping in my room and I heard some shouts in the room where my father and mother sleep. I went to the verandah where I found some . people, but I only identified three of them namely Hamisi Hussein(l st Aced), . Mangati Mwandula (2 nd aced) and Waziri (4 th Aced) I could identify these accused persons thought (sic!) the light of chemmy." According to PW 4, they were instructed to take out, · some shop goods and hanged them •to the culprits. During\,. . ·- ·. cross examination t>y the first ap'pellant PW4 stated: "I know you because we live together in the s0me ·· . . ... - '. . ' village and you are my neighbor· and not otherwise.· - .-~~ The light of c-hemmy is kept at the verandah arid_ ·~ .(i~ .,;,~ · ... ·· - ... . . my-reom. " one ,n 12 When cross-examined by the 2 nd accused person ·. [2nd Appellant] PW4 stated, 1. quote her; "I saw many people in the verandar but I only identified. you, the .1 st accused and the 4 th accused. The lamp was on the floor and the verandah is not very big. When the people respondent the alarm I told them that you. were among the culprits as well as the 1st and 4 th accused respectively. The people started to find you" [emphasis mine] From what has been shown above PW4 managed to identify the first appellant because she knew him before, there: was light from a hurricane lamp [Toa ya chemli], the verandah was not very big and she had time to observe the culprits because she was ordered to hand or give them some shop items before· 'she was ordered to lie down. She also said, as quoted above, that she mentioned the 2 nd appellant' as well as the first appellant and th~ • fourth accused person as among. the :. -- . ·-. -~- '· ,· . people who she identified. Alt~ough none of the people who respondent to the alar.m (Exce~f..PW5) was called to te.~tj.fy;J't)'I~; support what PW 4 said it· ap,.pears that she did infact nie~fion '· . some of the culprits because the first, and second appellants · were arrested the same night. When PW3 [Policeman] was 13 giving evidence he stated that h~ visited the scene of incident in the morning and found the first and second appellants had already been arrested and were in the village lock -·up. Again, it is my humble opinion that PW4 also identified the first appellant at the scene of inci~ent and her evidence leaves no room for mistaken identity. The learned State Attorney faulted the evidence of PW 4 on the ground that she did not name the people whom she mentioned the names of the culprits. I am unable to agree with the learned State Attorney that because PW 4 did not mention the people who she reported the names of the appellants then_ her evidence can not be believed that she correctly identified the appellants. As . I have stat~d before, the evidence of PW4 that he mentioned the appellants could be true because .from the record the first and second appellants were arrested the same night of the incident. In actual fact PW4 stated that after mentioning the ,, names of the appellants people started to look after them [see page 35 of the proceedings when , she was being cross- examined by the 2nd accused person (2 nd appellant)]. Another,,,wiJ;hess who idEfrYtified the first appellant at the -,~·: scene o'f incident is PW 5. The witness testified that: 14 J. · "I remember on 17.11.2004 at about 1.00am I was sleeping in my house and I heard some beatings at PW2 's hou$e. It is only about. four· paces from my house and she is closely my neighbor. I then had to go out and see what was happ_ening" .. The witness [PW 5] went on to state that: "On my arrival at her house, I saw the door was opened and there was a light of a lamp (chemly) at the verandah. I entered in the house and I found .three (3} people standing and I identified two of them, namely, Hamisi Hussein and Kambala Mjenda ... l -asked the first accused as to why there were some shouts. The 1st accused abused them (sic!} saying "Mpumbavu kaa chini" I told the . 1st accused I was there to separat~ the . quared (sic!)". From the passage quoted above it is clear that PW 5 was able'· to identify the first appellant because of the light from a lit lamp ..... _ (chemli), he knew the first appellant before [He stated_ tb,,9t~"*",_~~a=••~·- when he was cross examined. by the first appellant] he had time to observe him (appellant).as they exchanged words and he was very close since he met them at the· verandah of the house of PW2. PW5 stated further when the 5th accused 15 J ,-mmr-,~m;~:ll:~~:,_ __ ~l ~--~- person wanted to cut him with a "Sime" he ran away to a house of one Diwani and he informed the said Diwani what ~ was happening at PW2's house. Mr. Mayeye learned Stated Attorney faulted the evidence of PW 5 on the ground that he did not say wheth~r he mentioned to the said Diwani the names of the people he saw at PW2's house. With respect, I agree· with the learned State Attorney that the record is not very clear if PW 5 informed the said Diwani the names of the appellants. PW5 stated: "Then Diwani _was informed by_ me as to what was happening at PW2 's house." -It could be he named the appellants or he did not name them to the said Diwani but as I said before that does not necessarily - mean that PW 5 did identify the first appellant at the scene of ircident. I have already shown the circumstances under which PW 5 claimed to have identified th_~ first appellant and I - have no doubt thaf there -was any possibility of mistaker identity. There is also evidence of PW 6 who said that he identified the first appellant at the scene of incident He saicf __ . _ - that he managed to identify the first appellant because of the light from _a lamp (chemly) which was ori' the·ooor and that he knew him before the incident. _ 16 From the foregoing I concur with the trial Magistrate that the first appellant was correctly identified by· PW 1, PW2, PW 4 and · PW 5. In addition to that I also agree with the trial Magistrate that the first appellant was· also mentioned by the third appellant. [fifth accused person] in his cautioned statement' which was admitted as Exhibit P3. The said cautioned statement was not challenged by the third appellant. It is. my humble opinion that the cautioned statement made ·by. the third appellant is corroborated by the evidence of PW 1, PW2, PW4 and PW5 as discussed above. I therefore uphold the conviction and sentence imposed on the first appellant. The appeal by the first appellant in hereby dismissed. With regard to the 2nd appellant who was second accused at the trial the available evidence shows that he was identified by PW4. The witness stated that, I quote her: . . . "I went to the verandah where I found some people, but I only identified three of them, namely, Hamisi Hussein (1 st Aced), Mangati Mwandula (2 nd Aced) .. · and Waziri (4 th Aced). I could identify these occu.$ed person thought the light of chemmy." During cross-examination by the second appellant the witness _/ (PW4) said - 17 ., "I know you because you are my neighbor and we live in the same village." As stated before, PW4 had ample time to observe the culprits because she was ordered to take ·some shop items and hand over the same to them before she was directed to lie down. It is my humble opinion that since PW4 knew the second appeilant before, and that there was light from a lamp [chemli], which was on the floor at the verandah and had time to observe the intruders then the logical conclusion is that the sec·ond appellant was correctly identified and there is nothing.· like mistaken identity. The second appellant was also mentioned ,n the cautioned statement of the third appellant [who was fifth raccused person at the trial] as one of the people who invaded . the house of PWl and PW2. As stated before, the cautioned statement was tendered and admitted as exhibit- P3 without objection by the 3rd appellant. Of course the appellants have challenged the cautior:1 :1 statement in their petition . of appeal but. as correctly pointed by Mr. Mayeye learned State Attorney, the complaint by the appellants is a mere afterthought. The third appellant was supposed to raise objection when the 18 ., ~~;~~'d~~~?'.C:-zzr=~,~~,~~ ,~~z;t:?~··L~(?i;g: :~;:s~'',"':'; ~~1,~~:1~_'-~:~~~~:~~:-~'.:..~=«~---" ···· f caution statement was tender~d in court and not otherWise. It is my humble opinion that the evidence of PW4 corroborates the caution st.atement of the third appellant and the statement mentions the second appellant as one of the people who participated in t_he commission of the crime. therefore uphold the conviction of the second appellant and the sentence imposed on him. His appeal is therefore dismissed. When we come to the third appellant [who was the fifth accused person] there is his caution statement in which he confessed to have participated in the commission of the offence. He has challenged the caution statement before this Court but as I have already said before that is a mere afterthought. The appellant was supposed to raise his objection or complaint when the statement was being tendered in court and not otherwise. In addition to the caution statement, the third appellant (5 th accused) was also identified by PWl, PW2 and PW5. All the three witnesses said that they knew the third appellant before the incident because they were living in the same V'lltage. The appellant did not dispute that. The witnesses ~ stated that they also managed to identify the said appellant because there was light from lit lamp. For example PW5 testified that:- 19 ----~·-·. " I remember on 17.11.2004 at about 1.00am I was . sleeping in my house and I heard some beatings at PW2's house. It is only four paces from my house and she is closely my neighbor. I then had to go out and see as to what was happening. On arrival at her house, I saw the door was opened and there was a light of a lamp (chemly) at the verandah. entered in the house and I found three (3) people standing and I identified two of them namely, Hamisi Hussein and Kombola Mjenda (5 th accused)." PW5 said also that he managed to identify the third appellant -because he wanted to cut him with a "Sime" and he wa very· close to him. Let him (PW5} speak for himself: [on cross- examination by the 3rd appellant/5 th accused] "I know you because we live in the same village. heard some shouts at PW1 and PW2. You intended to cut me with a Sime, and you were very close. to me, and it was easy to see you properly". It is also my considered opinio'} that PW2 had ample time to observe the third- appellant ·because they (appellants) spent time v~dth ·her in the bed room c:ind also walked with them to the 20 ' j•• ,. --:~- - . . . . . . , .• . ·, ··· .. ,: ·•.'\:~<e.~,;;J:·~ . _~;:/,1 , .."~ ·.~ :'· .- -~~ . , · ::verandah while demanding to be given some money. At least \,< ,-,·that is what PW2 said in her testimony. In view of that I am satisfied that there was no possibility of mistaken identity. I therefore uphold the conviction and sentence imposed on the third appellant by the trial Court. His appeal is therefore dismissed too. Order accordingly 21