hamisi hussein others vs republic 2008 tzhc 159 4 december 2008

IN THE HIGH COURT OF TANZANIA AT DODOMA (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 namely, Hamisi Hussein (1st . « appellant) M a g ’ati M w andula (2ndappellant) and G obola M jenda (3rd appe llant) w ho were the 1st, 2nd and 5thaccused persons respectively w ere co n victe d of arm ed robbery and l unlawfully causing grievous harm in Criminal Case No. 393 o f 2004 of the District court of Dodom a. There w ere five accused persons but tw o of them (3rd and 4th accu se d persons) w ere a cq u itte d . Each of the appellants was sentenced to serve a term of thirty years imprisonment and tw elve strokes of corporal punishment for the o ffe n c e of ..armed robbery and a term of one year imprisonm ent on each court of unlawfully causing grievous harm. The sentences w ere ordered to run concurrently. The appellants were also ordered e a ch to pay Tsh 200,00/= as com pensation to PW1 a nd PW2. They w ere aggrieved hence the present ap peal. The facts giving rise to this m atter are* th a t on 17.11.2004 PW1, nam ely are Liberatus Fabian Lujuo a n d PW2 - Fransiska Lujuo w ho is the w ife o f PW1 were at their hom e in K ongango village, D odom a Rural District. While a t hom e around 1..00am the tw o (PW1 and PW2) w ere invaded by a group of six people. The strangers or rather intruders d e m a n d e d to be given m oney and in the course of de m anding m oney they assaulted PW1 « \ and PW2 with a “ p a n g a ” and clubs. A gunshot was also fired by the intruders. They m a n a g e d to take some m oney a n d other shop items and left the co u p le (PW1 and PW2) seriously injured. An alarm was raised a nd people (villagers) w e n t to the scene of incident and the victims w ere sent to hospital the same 2 night. Some of the culprits/suspects w ere also arrested the same'night. The appellants have filed a joint five point m em orandum of a p p e a l. At the hearing of the a p p e a l they a p p e a re d in person and unrepresented. All of them requested for leave of the court to file additional grounds of a p p e a l. Mr. M ayeye, learned State Attorney w ho a p p e a re d for the respondent - Republic had no objection to the prayers so e a ch of the appellants was allow ed to file/state his a dd itio na l ground(s) of appeal. Otherwise the appellants did not have m uch to say or a d d to e la b o ra te their grounds of ap pe al. Mr. M ay eye, learned State Attorney started his submission by addressing first the additio na l grounds of a p p e a l as raised by the appellants. He started with the co m p la in t of the first appe llant th a t he w ent to the scene of inciden t in response to the alarm w hich was raised but he was not arrested there until 5.00 am. He asked if he was identified a t the scene of incident why w asn’t he arrested im m ediately. Mr. M ayeye subm itted that it was not true th a t the first a p p e lla n t was arrested a t 5.00 am instead there .is e vid e n ce of PW1 th a t the a p p e lla n t was in the same c a r w hich carried him the same night after the incident. He said that th a t p ie ce of evid en ce shows that the first a p p e lla n t was arrested the same night of the incident. With 3 ' regard to the co m p la in t of the second a p p e lla n t th a t if he was correctly identified w hy did it take the w hole d a y before he was arrested Mr. M ayeye said that the second app e llan t was not arrested on 18.11.2004 in the night as alleged. He said that the record shows th a t PW3 w ent to the scene of incident in the morning of 18.11.2004 and found out th a t the first and second appellants had alread y been arrested and w ere in the village lock up. C oncerning the co m plaint of the third a p p e lla n t that the court erred to a d m it his caution statem ent because he did not make it, Mr. M ayeye said that the co m p la in t was an after thought because the record of the proceedings shows that when the statem ent was p ro d u ce d in court the third ap pe lla n t who was the fifth accused person did not raise any objection. The learned State Attorney p ro c e e d e d to deal with the main joint petition of a p p e a l. He subm itted th a t the first ground of a p p e a l has no merit and it is an afterth o u g h t because when the caution statem ent of the third a p p e lla n t w h o was the fifth accused person was tende red in court the a p p e lla n t did not raise any objectio n. Mr. M ayeye responded to grounds of a p p e a l num ber tw o and three to g e th e r because he said they all refer to the question of identification of the appellants. He subm itted that during the hearing of the case PW1# PW2, PW4, PW5 and PW6 4 said that they identified the appellants a t different times. PW1 said that he identified the first accused (1st a ppe llant), third accused and the fifth accused (third a ppe llant) due to light from a hand lam p. He also said that he identified them because he knew them before and lived with them in the same village for a b o u t 15 years. PW1 said also th a t a fte r the incident he inform ed his neighbours as to w h a t h a p p e n e d and asked for their assistance. Mr. M ayeye faulted the e v id e n c e of PW1 on two grounds. First he said PW1 did not say in his evidence w hether he m entioned the names of the culprits. Secondly, he did not m ention w ho were the neighbours. Mr. M ayeye said that is a weakness in the evid en ce of PW1. With regard to the evide n ce of PW2, Mr. M ayeye said that it was not very different from that of PW1. He subm itted that PW2 r said th a t she identified accused N o.l th a t is, the first appe llant and accused No.5 w ho is the third a p p e lla n t in this appeal. He stated further that PW2 cla im e d to have identified them through the help of a lam p but she did not clarify w hat kind of lam p. Mr. M ayeye was* a lso u n co m fo rta b le with the eviden ce o f: PW4 w ho said th a t she identified the first” a pp e llan t (first accused) second a p p e lla n t (second accused) and the fourth accused w ho was a c q u itte d by the court. PW4 also said that ’ she m a n a g e d , to identify them by the help of light from a hurricane lam p [Taa ya chem li]. She cla im e d also to have identified them b e c a u s e ' she knew them before and she m entioned them to the peop le w ho c a m e to the scene of incident. Mr. M ayeye faulted this p iece o f e vid e n ce of PW4 because she did not m ention the names o f the p e o p le w ho she reported the names of the appellants. Mr. M ayeye did not also support or a p p ro v e the evidence of PW5 w ho said th a t he w e nt to the scene of incident and identified the first a p p e lla n t (first accused) and the third ap p e lla n t (fifth accused). PW5 said that, he m a n a g e d to identify the tw o appellants because of the light from a hurricane lam p. A cco rd in g to the e vid e n ce of PW5, one of the culprits took out a “ sime” and he (PW5) d e c id e d to run aw ay to the house of “ Diwani” . The learned State Attorney faulted this p ie ce o f e vid e n ce on the ground th a t PW5 did not say w hether he m entioned to the said “ D iw ani” the names of the peop le he saw. The learned State A ttorney subm itted th a t the w hole e vid e n ce concerning identification of the appellants is not w a te rtig h t and does not m eet the test laid dow n in the case of Waziri Am ani. In elaborating the point he said that most of the witnesses did not say w hether they m entioned the names of the appellants before the p e o p le w ho responded to the alarm raised. He w e nt on to argue th a t n<t>ne of the 6 people w ho responded to the alarm w ere called as witnesses to c o lla b o ra te w h a t the victims said. He also said that' the witnesses did n o t say how m uch time did they spend with the culprits/appellants. Lastly he said that it was not clear how the witnesses m a n a g e d to identify the appellants from the lamps because it is n o t shown w hether the light was bright or not. The le a rn e d State Attorney concurred with the argum ent of the appellants that they were not found with anything co n n e cte d w ith the incident and that the case against them was not p ro v e d to the required standard. In otherwords, the respondent - R epublic did not support the conviction of the appellants. I have ca re fu lly considered the grounds of a p p e a l as raised by the appellants and also the submission w hich was m ade by the le a rn e d State A ttorney - Mr. M ayeye. I have also ^ read carefully th e proceedings and ju dg m e n t of the trial court. In my hum ble opinion there are tw o main issues for determ ination in this a p p e a l. The first issue an d w hich is the most im p o rta n t one is w hether the appellants w ere properly identified. The second issue concerns the c o m p la in t of the appellants on th e caution statem ent of the fifth accused w ho is the third a p p e lla n t in this a p p e a l. 7 The law relating to visual identifica tion is now settled. In the case of Waziri Amani V. R [1980] TLR 250 it was stGted that: “Although no hard an d fast rules can be laid dow n as to the m anner a trial ju d g e should1 determ ine questions o f identity, it seems, clear to us th at he c o u ld no be said to have properly resolved the issue unless there is shown on the record a careful a n d considered analysis of all the surrounding circumstances o f the crime being tried. W e w ould, ■for exam ple, e x p e c t to find in the record questions such as the following posed a n d resolved iby him the time the witness had the a ccu se d under observation; the distance a t which he observed him; the conditions in which such observation occurred for instance, p o o r light a t the scene d n d further w hether the witness knows or h a d seen th$ accused before or n o t " It has also been held out th a t w here an oi ffe n ce is com m itted a t night w here there is light, say a lam p and the identifying witness knew the culprit before the d a y of the incident, there ca n be no d o u b t a b o u t proper identification under the circum stances, and such circum stances are favourable for an unmistaken identity:- see, Rajabu Khalifa 8 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 eviden ce w hich led to the con viction of the first appellant w ho was the first accused person a t the trial was given by PW1, PW2 and PW4. The question w hich need to be answered is w hether the first a p p e lla n t was properly identified. PW1' said th a t he identified the first a p p e lla n t under the following circum stances. First, he said th a t six men invaded his room and he identified three of them including the first appellant (first accused). He said, “ I c ou ld identified (sic!) them through the hand lam p which was lighting” So PW1 m a n a g e d to see and identify the first appe llant because of light from a lam p. It is true th a t he did not say w h a t kind of lam p it was but there was light in the said room. Second, PW1 said th a t he knew the a p p e lla n t before. He knew him for the past fifteen years and th a t they w ere living in the same village. The first a p p e lla n t did not dispute th a t he was known by PW1 before the incident. Third, PW1 said th a t the intruders b e a t his,wife while d e m an ding to be given m oney o btain ed from the sale of a m otor vehicle and maize. A ccording to this 9 witness, the intruders took his wite (PW2) to the shop to show them m oney and brought her b ock while saying "Tumuue, M chinje” . That implies that PW1 had enough tim e to observe the culprits. Fourth, PW1 said that the first a p p e lla rit told him “ Kwo nini un aniangalia” . Fifth, PW1 said also th a t after raising alarm he inform ed their neighbours as to w h a t had h a p p e n e d and asked for help. He stated th a t ‘‘w e inform ed our neighbours as to w h a t had h a p p e n e d an d asked; for help” . That statem ent co u ld m ean a lot of things but in my humble opinion th a t did not necessarily m ean th a t PW1 did not identify the first a p p e lla n t. As shown hereinabove the witness (PW1) had g o o d opportunity to identify the a p p e lla n t w ithout any mistake. The e vid e n ce of PW1 is also supported by the evidence of PW2 w ho was in the same room with PW1. w hen PW2 was cross exam ined by the first a p p e lla n t (first accused) she said; " I identified you because I know you before and I was assisted by fhe light o f lam p on that night. I light m y lam p from 6.00 pm a n d lit o ff a t 6.00 a.m the following m orning”- She also stated' during cross exam ination by the first appellant that; 10 " You a n d your gan g forced m e from the room to the- verander, a n d h ad an am ple time to identify." I very m uch agree with w hat PW2 said th a t she had am ple tim e to identify the culprits because a cco rd in g to her e vid e n ce and that of PW1, the culprits took her from the room to the verandah an d b a ck to the room. She said, I quote; “ 1st A ccused ordered us to p ro d u c e some more money. I took the Ist accu sed a n d his g a n g to the verander where my children had some more m oney... I missed the m oney a t the .verander a nd they took me ba ck info the room while still beating me. While in the room the 1st a ccu se d told the others th a t "let us kill her" I then p u t on a stool on my h e a d so th a t I c ou ld not be hurt by the p a ng a s which they were using by assaulting me. I then g a v e them Tsh 300,000/= then I heard a gun shot again. ” « It is my hum ble opinion that PW2 also identified the first a ppe llant during the night of the incident. She knew th e . 1st a ppe llant before, they are neighbours and th a t there was light from a lam p in the room and she had am ple tim e to see and identify the culprits especially the 1st app e llan t, as she said during cross exam ination. li “ You are neighbors an d I know you sinqe you were b o ra a n d during the d a y you c a m e our house * i a n d asked if PW1 was present. This wad before the in cide n t took p la c e ." •Another witness w ho claim ed or said th a t she identified the first ap p e lla n t is PW4. This witness stated, I quote : “ In 17.11.2004 a t a b o u t 1.00am I was sleeping in m y room a n d I heard some shouts in the room where m y father a n d m other sleep. I w e n t to the verandah where I found some p e o p le , b u t I only identified three o f them nam ely Hamisi Husseini(1st A ccd), !v\angati M w a nd u la (2nd a c c d ) a n d Waziri (4th A ccd ) I c o u ld identify these accused persons thought (sic!) the light o f chem m y." A ccording to PW4, they w ere instructed to take out, some shop goods and h a n d e d them to the culprits. During' cross exam ination by the first a p p e lla n t PW4 stated: “ I know you because we live together ir\ the same * village a n d you are my neighbor a n d n o t otherwise. The light o f c h e m m y is ke p t a t the verandah a n d one in m y r o o m .” 12 When cross-examined by the 2nd a ccu se d person [2nd Appellant] PW4 stated, I quote her; "I saw m any people in the vera n d a r but I only identified you, the 1st accused and the 4th 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 4th accused respectively. The people started to find you,f [emphasis mine] From w h a t has been shown a bove PW4 m a n a g e d to identify the first a p p e lla n t because she knew him before, there was light from a hurricane lam p [Taa yo chem li], 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 dow n. She also said, as q u o te d above, that she m entioned the 2nd appellant' as well as the first appellant and the fourth accused person as am ong the people w ho she identified. Although none o f the peop le w ho respondent to the alarm (ExcepNPW5) was c a lle d to testify to-*" support w h a t PW4 said it appears th a t she did in fa c t m ention some of the culprits because the first a n d second appellants were arrested the same night. When PW3 [Policem an] was 13 giving evid e n ce he stated that he visited the scen!e of incident in the morning and found the first and second appellants had already been arrested and w ere in the village lo c k - u p . Again, it is my hum ble opinion that PW4 also identified the first a p p e lla n t a t the scene of incident and her e vide n ce leaves no room for mistaken identity. The learned State Attorney faulted the evid e n ce of PW4 on the ground th a t she did not nam e the pe o p le w hom she m entioned the names of the culprits. I am unable to agree with the learned State Attorney that because PW4 did not m ention the p eo p le w ho she reported the names of the appellants then her e vid en ce can not be believed th a t she correctly identified the appellants. As I have stated before, the e vid e n ce of PW4 th a t he m entioned the appellants could be true because from the record the first and second appellants w ere arrested the same night of the incident. In a ctu a l fa c t PW4 stated th a t after m entioning the names of the appellants p e o p le started to look after them [see p a g e 35 o f the proceedings when she was being cross- exam ined by the 2nd a ccu se d person (2nd a p p e lla n t)]. i Another witness w ho identified the first a p p e lla n t at the scene of inciden t is PW5. The witness testified that: 14 “ I rem e m b er on 17. J 1.2004 a t a b o u t 1.00am I was sleeping in my house a n d 1 heard some beatings a t PW2’s house. It is only a b o u t four paces from my house a n d she is closely m y neighbor. I then h a d to go o u t a n d see w ha t was h a pp en ing The witness [PW5] w ent on to state that: “ On my arrival a t her house, I saw the door was o p e n e d and there was a light of a lam p (chemly) at the verandah. I entered in the house and I found three (3) p e o p le standing and I identified tw o of them, namely, Hamisi Hussein and K am bala M je n d a .J asked the first accused as to w hy there w ere some shouts. The 1st a ccu se d abused them (sic!) saying ” M p um b a vu kaa chini” I told the 1st accused I was there to separate the quared (sic!)” . « From the passage q u o te d a b o ve it is clea r th a t PW5 was able to identify the first a p p e lla n t because of the light from a lit lam p (chemli), he knew the first a p p e lla n t before [He stated that., when he was cross exam ined by the first appe lla nt] he had time to observe him (appellant) as they e xch a n g e d words and he was very close since he m et them a t the verandah of the house of PW2. PW5 stated further w hen the 5th accused 15 person w a n te d to cu t him with a “S/me” he ran a w a y to a house of one Diwani and he inform ed the said Diwani w h a t was happening a t PW2's house. Mr. M ayeye learned Stated Attorney faulted the evidence of PW5 on the ground th a t he did not say w hether he m entioned to the said Diwani the names of the p eop le he saw at PW2’s house. With respect, I agree with the learned State A ttorney th a t the record is not very clear if PW5 inform ed the said Diwani the names of the appellants. PW5 stated: “ Then Diwani was inform ed by m e as to w h a t was hap p e n in g a t PW2 fs house." It could be he nam ed the appellants or he d id not nam e them to the said Diwani but as I said before th a t does not necessarily mean that PW5 did identify the first a p p e lla n t a t the scene of incident. I have already shown the circum stances under which PW5 cla im e d to have identified thQ first a p p e lla n t and I have no d o u b t th a t ’ there was any possibility of mistaken identity. There is also evid en ce of PW6 w h o said that he identified the first a p p e lla n t at the scene o f incident. He said that he m a n a g e d to identify the first a p p e lla n t because of the light from a lam p (chemly) w hich was on the ftoor and that he knew him before the incident. 16 From the foregoing I co n cu r with the trial M agistrate that the first a ppe llant was correctly identified by PW1, PW2, PW4 and PW5. In addition to th a t I also agree with the trial Magistrate that the first a p p e lla n t was also m entioned by the third appe llant [fifth accused person] in his c a u tio n e d statem ent' which was a d m itte d as Exhibit P3. The said caution ed statem ent was not challen g ed by the third ap pellant. It is. my humble opinion th a t the cau tio n e d statem ent m a d e by. the third a p p e lla n t is corro b o ra te d by the e vid e n ce of PW1, PW2, PW4 and PW5 as discussed above. I therefore uphold the conviction and sentence im posed on the first appellant. The a p p e a l by the first a p p e lla n t in hereby dismissed. With regard to the 2nd a p p e lla n t w ho was second accused at the trial the available e vid en ce shows that he was identified by PW4. The witness stated that, I qu o te her: “ I w e nt to the verandah where I found some p e o p le , b u t I only identified three o f them , nam ely, Hamisi Hussein (1st A ccd), M anga ti M w a n d u la (2nd A ccd) a n d Waziri (4th A ccd). I could identify these accused person thought the light of c h e m m y ” During cross-examination by the second a p p e lla n t the witness (PW4) said - 17 "/ know you because you are m y neighbor a n d we live in the same village ” As stated before, PW4 had am ple tim e to observe the culprits because she was ordered to take some shop items and hand over the same to them before she was dire cte d to lie dow n. It is my hum ble opinion that since PW4 knew the second appe ilant before, and that there was light from a lam p [chemli], w hich was on the floor a t the verandah and had time to observe the intruders then the logical conclusion is that the second a p p e lla n t was correctly identified an d there is nothing like mistaken identity. The second a p p e lla n t was also m entioned in the caution ed statem ent of the third a p p e lla n t [who was fifth accused person a t the trial] as one of the p e o p le w ho invaded the house of PW1 and PW2. As stated before, the ca utio n e d statem ent was tende red and a d m itte d as exhibit P3 w ithout objection by the 3rd appellant. Of course the appellants have challenged the caution statem ent in their petition o f a p p e a l but as correctly pointed by Mr. M ayeye learned State Attorney, the co m p la in t by the appellants is a mere afterthought. The third a p p e lla n t was supposed to raise objectio n w hen the 18 caution statem ent was tendered in court and not otherwise. It is my hum ble opinion th a t the e vidence of PW4 corroborates the caution statem ent of the third a p p e lla n t and the statem ent mentions the second appe llan t as one o f the p eop le w ho p articip a te d in the commission of the crim e. I therefore uphold the co n victio n of the second a p p e lla n t and the sentence im posed on him. His a p p e a l is therefore dismissed. When w e c o m e to the third a p p e lla n t [who was the fifth accused person] there is his caution statem ent in w hich he confessed to have p a rticip a te d in the commission of the offence. He has ch a lle n g e d the caution statem ent before this Court but as I have already said before th a t is a mere afterthought. The a p p e lla n t was supposed to raise his objection or c o m p la in t when the statem ent was being tendered in court a nd not otherwise. In addition to the caution statem ent, the third app e llan t (5th accused) was also identified by PW1, PW2 and PW5. All the three witnesses said th a t they knew the third ap pe lla n t before the incident because they w ere living in the same village. The a p p e lla n t did not dispute that. The witnesses stated th a t they also m a n a g e d to identify the said a p pe lla nt because there was light from lit lam p. For exam ple PW5 testified that:- 19 “ I rem em ber on 17.11.2004 a t a b o u t LOOam I was sleeping in m y house a n d I heard some beatings a t PW2’s house. It is only four paces from m y house a n d she is closely my neighbor. I then h a d to go out a n d see as to w h a t was happening. On arrival a t her house, I saw the d o o r was o p e n e d a n d there was a light o f a lam p (chemly) a t the verandah. I e ntered in the house a n d I found three (3) people standing a n d I identified two o f them nam ely, Hamisi Hussein a n d Kombola M jenda (5th a c c u s e d ).” PW5 said also th a t he m a n a g e d to identify the third appellant because he w a n te d to cut him with a "S/me” an d he w a very- close to him. Let him (PW5) speak for himself: [on cross- exam ination by the 3rd a p p e lla n t/5 th accused] "/ know you because we live in the same village. I heard some shouts a t PW1 a n d PW2. You intended to c u t m e with a Sime, a n d you were very close to m e, a n d it was easy to see you p roperly” . It is also my considered opinion th a t PW2 had a m p le time to observe the third' a p p e lla n t b e ca u se they (appellants) spent time with her in the be d room a nd also w alked with them to the 20 verandah while dem an din g to be given some m oney. At least that is w h a t PW2 said in her testimony. In view of th a t I am satisfied that there was no possibility of mistaken identity. I therefore uphold the conviction and sentence im posed on the third a p p e lla n t by the trial Court. His a p p e a l is therefore dismissed too. Order a cco rd in g ly 21