20090415 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: RUTAKANG\iVA, J.A., LUANDJ.\, J.A .And MJASIRI, J.A.) CRIMINAL APPEAL NO. 91 OF 2006 1. JUMA MARWA } 2. DAMAS V/ILLIAM ·············••»••············••·······•············ APPELLANTS 3. JUMA HAMIS VERSUS THE REPUBLIC ·············•ll ■■••·····-·: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Dar es Salaam) (Orivo, J.) dated the 6 th day of January, 2006 in HC Criminal Appeal No. 33 of 2004 JUDGMENT OF THE COURT 20 March & 24 April 2009 MJASIRI, .J.A.: This is a second appeal. It is against a conviction for armed robbery contrary to sections 285 and 286 of the Penal Code and sentence of imprisonment for thirty years. The Appellants, Juma Marwa, Damas William and Juma Hamis were jointly charged with two other persons with the offence of armed robbery before the District Court of Terneke District. They all . denied the charge, but only the three Appellants were found guilty of the offence and convicted. The other two were acquitted. The Appellants' appeal to the High Court was unsuccessful, giving rise to this appeal. All the Appellants were unrepresented. The Republic was represented by Mr. Yustus Mulokozi, learned State Attorney. Briefly the facts are as follows. On May 9, 2002 at about 18.30 hours at Tungi, Kigamboni area Dar es Salaam, a gang of thieves invaded the house of PWl, Eveline Dumba, threatened to kill her and the people found at the house, tied them up and made away with TShs. 4,800,000 and a goid chain worth TShs. 85,000. The Appellants filed five (5) lengthy grounds of appeal. After carefully reviewing the said grounds of appeal we are of the view that the main grounds of appeal are grounds No. 1 and 5 which can be summarized as under. 1. That the Appellants were not properly identified. 2. That the conviction of the Appellants was against the weight of the evidence. 'I , '. 3 I The prosecution called 12 , (twelve) witnesses. The major - witnesses, in our considered vie'-:', were PWl Evelyn Duba, PW2 Herry Dalu and PWS Roda Kapornp. According to the testimony of I PWl, PW2 and PWS, they all knew the 2nd Appellant and 3rd I Appellant as they had gone to the ~ouse of PWl, the day before the robbery took place. PW2 also testified that he knew the 1st Appellant, without elaborating. The Appellants asked the Court to adopt the grounds of appeal (as contained in the Memorandum of Appeal) as part of their submission. They also requested :the Court to take into account I additional grounds of appeal on the issue of identification and the . failure of the police to conduct an identification ' parade. However, the issue of identification was part of ground No. 1. Ali· the Appellants denied that they were identified at the scene of the crime i as alleged by the prosecution. Mr. Mulokozi, initially supported the conviction of the Appellants. He submitted that the conviction of the Appellants was proper given the evidence on record. Mr. Mulokozi was in agreement I ' .. ,I 4 with the High Court Judge that the issue of identification was crucial and the conviction of the Appellants was based on identification. However, he subsequently conceded, in the course of his submission that the identification of the Appellants was not water tight and that there were weaknesses in the prosecution case as far as identification is concerned. There was a shortcoming in not carrying out an identification parade. He stated that because of the proble_m of the evidence on identification the Court should give the benefit of the doubt to the Appellants. . He opted to leave the matter in the hands of the Court. The High Court Judge after reviewing the evidence on record was of the view that the major issues in the appeal were whether or not the Appellants were properly identified and whether a weapon was used. She was satisfied that the Appellants were properly identified on the evidence of PW1, PW2 and PWS. The High Court Judge relied on the case of Waziri Amani v R (1980) TLR 250 and she stated that the conditions laid down in the said case were fully satisfied. The High Court Judge did not address the requirement for carrying out an identification parade in a case of this nature. 'i 5 After,carefully reviewing the judgment of the High Court, the memorandum of appeal, submission by Mr. Mulokozi · and the I evidence on record, we are of the view that the evidence was not adequate to justify the conviction of the Appellants. The prosecution case was weak. The basis of the conviction of the Appellants was the testimony of PWl, PW2 and PWS, whose testimony was similar in nature. All the three witnesses in identifying the Appellants stated as under: "I knew one of them the::J'd Accuse<t he came with the gh Accused whom I did not know before. N PW2 also testified that he knew the first Accused. There was no description of the 2nd Appellant (3 rd Accused). None of the witnesses put up an explanation as to how they knew the 2nd Appellant, his physique and the clothes he was wearing. No rd th description of the 3 Appellant (5 Accused) was given; neither the physique nor the clothes he was wearing. This was also true in respect of the 1st Appellant (1 st Accused). No identification parade was carried out. 6 . The question is, is the evidence on record sufficient to uphold a conviction? The Court has stated in numerous decisions, the most cited being Waziri Amani v The Republic [1980] TLR 250 that evidence of visual identification is easily susceptible to error. At page 251-252 of the judgment the Court succinctly stated as under: "the evidence of visual identification is of the weakest kind and most unreliable. It follows therefore/ that no Court should act on evidence of visual identification unless all possibilities of mistaken identity are eliminated and the Court is fully satisfied that the evidence before it is absolutely water tight. H It is settled law that the prosecution is required to prove the case against the Appellants beyond reasonable doubt. It is clear from the evidence available that the prosecution failed to meet the standards required under the law. Failure to conduct an identification parade, as the appellants, were, apparently strangers to the witnesses, rendered the whole identification process untenable in law. The . 7 ·identification evidence of PW1, PW2 and PWS, consisting of bare assertions, is unreliable. In the case of Raymond Francis v R [1994] TLR 100 at page 103 it was stated as under: II it is elementary that in a criminal case where determination depends essentially on identification evidence on conditions favouring a correct identification is of the utmost importance. " See Shamir John v R, Criminal Appeal No. 166 of 2004 (unreported). Taking in consideration the settled position of the law, we can say with certainty that the evidence of identification as given by PWl, PW2 and PWS cannot be said to have met the legal requirements by any standard. We are, therefore, of the considered view that the identification evidence is of the weakest character and did not justify the conclusion reached by the courts below. I. We are increasingly of the view that had the first appellate Court adverted to those fatal weaknesses in the prosecution case it would not have concurred with the trial court but would have allowed the Appellants' appeal. For the foregoing reasons, we allow the appeal, quash the conviction and set aside the sentence ·of 30 years imprisonment.·. The r .Appellants are to be released forthwith unless otherwise lawfully held. DATED at DAR ES SALAAM this 15th day of April, 2009. E.M.K. RUTAKANGWA JUSTICE OF APPEAL 8. M. LUANDA JUSTICE OF APPEAL S. MJASIRI JUSTICE OF APPEAL I certify that this is a true copy of the original. /(~~·,:5/f.~f{ > -~_;,:._ . ' ·' . :_·.·-~-;-',\~_:t_:,:t.:·:.-:~_-.. (P. B. KHk<)" / 1 ,. A;,\ \ ?.\}DEPUTY R/lS'fRAR f ~-: ··&it.,-.~-'' -:, .