20090709 TZCA Tanga

. "ltl" ,,4, '.,_ ' ~ -."' ~ IN THE COURT OF APl;>EAL OF TANZANIA . ATTANGA ·I {CORAM: RAMADHANI; C.l .• MSOFF:E, l.A., And MBAROUK, l.A.) • • I, CRIMINAL APPEALi,NO. 21 OF 2009 ' I ,r MWANSEMIAN OMARI ................•. ·!•····························· APPELLANT ' VERSUS I ' I THE REPUBLIC ~ .............................11. ......................... RESPONDENT ·! ! (Appeal from the decisiin of the High Co~rt . of Tanzania ~t Tanga) . ,, ' II {Mkwawa, J.) th I dated the 24 day of January, 2003 . in I · Criminal Appeal No. 12 of 2002 ---------~1------ JUDGMENT OF THE COURT 3 & 9 July 2009 ., MSOFFE, J.A.: PWl Bushiri Mussa testified an:, told the District Court of Tanga I _:. . I that on 21/4/2000 at 7.30 p.m. he was somewhere along the 1ath street area in Tanga Municipality 'buying roasted cassava. The second and third accused. persons at the trial emergfd at the scene · and robbed him of his Shs. 5,000/= Lhereupon the appellant, whom he was seeing for the first time, alsp came in, cut hil with a "sime", . I and the trio dispossessed him, and '. left away with, his bicycle with ! . ' i I , 2 .I frame No. 859777. He raised an alarm but nobo y came to his rescue inspite of the fact that there ~ere many othJ people at the ·11 I area at the material time. He reported the incident at the bus stand . j: ! police station. In the meantime, PW 4 No. D 1928 Detective Corporal Aloyce, who took up the conduct of tJe investigation Jr the case, told .! I the said court that at about 8.30 - ~.00 p.m. on the same day he, with other policemen, were at MsamJweni Cemetery ihere they saw I ! ! I the appellant with other persons. Thei appellant and cbthers ran away I ii leaving behind two bicycles, Phoenii make. In the ensuing chase, f they arrested the appellant only because the others managed to flee ·1 away and escape completely from. the scene. I . They eventually ·1 .: I summoned PWl to Chumbageni Poli~ Station where e identified his I" bicycle. The District Court (Chanjarika, :bM) believed PWl and PW2 and J I convicted the appellant, and two orers, of robbeliY with violence contrary to sections 285 and 286 of the Penal Cod~ and sentenced I , I them to fifteen years imprisonment. j'(ggrieved, they appealed to the High Court at Tanga where Mkwawa J. allowed the ~ppeal in respect I . I 3 of the other accused persons. As for: he appellant, the learned judge dismissed his appeal against conviotiln and substitJed thereof the . f I een years tO one O Sentence Of fift r :tl.rty years ·imprisonment .I ·In 1·me with the relevant provisions of the Mi,nimum Sentenbes Act, 1972 as amended by Act No. 10 of 1989. Still aggrievel, the appellant has preferred this second appeal. i ' '; At the hearing of the appeal the appellant appeared in person. :l I The respondent Republic was repre:tented by Mr. Jjsson Kaishozi, learned State Attorney, who argued 1in support of the appeal. ! Admittedly, this is a second: appeal where we derive our jurisdiction from Section 6 (7) (a) ,of the Appellate Jurisdiction Act, 1979. Under this provision, t,e Court has poler to deal with matters of law (not including severi~I of sentence) buf not matters of fact. Case law has, however, established that in a second appeal the 1 1 I Court may interfere with findings o~ fjot by the. courts belo~ where it 1s shown that there has been a· m1sapprehens1on of the evidence, a miscarriage of justice or a violatio~ of some principle of law or 4 'i practice - See Ambrose Severin L~kule @ China v Republic, Criminal Appeal No. 145 of 2007 (uJeported) in which this Court I I I cited a number of other authorities on the point, nptably Daniel I i Nguru v Republic, Criminal Appeal No. 178 of 20d4 and OPP v Norbert Mbunda, Criminal Appeal No. 108 oJ 2004 (both i unreported). !!' 11 The crucial issue in this appeal i~ whether or not there is basis for us to interfere with the concurrenl findings of fact by the courts I . ! below that the evidence of PWl and rw2 established /the appellant's guilt beyond reasonable doubt. With Jespect, our ansJer to the issue I is in the affirmative for reasons which we will demonstrate I hereunder. I In a case such as this one, proLr identification of an accused person .Is crucIa ~ . I.m proving a cnmllila .. 11 charge. I. It ~s Impo rta nt to ensure that any possibility of mistaken identity is eliminated before a conviction can safely lie. For this reaLn, the Court i~ the often cited I ! case of Waziri Amani v Republic ( 1980) TLR 2sp set out some 5 guiding principles in considering favo .rable conditions for identifying an accused person. The court statedJ · Although no hard and fast rules can be Yaid 4 down as to the manner trial judge shduld determine questions of Jisputed identiJ it l I seems clear to us that he lcould not be saiii to I have properly resolved thf issue unless t1ere is shown on the record a careful and considered anal11sis r· I~ of all I~he surrounding circumsta',Jces of the ·crime . . a 1Me wou,u be1ng tne . ! ~ examp,e, ,,,., }Or , exfect I to find on record questidns as the follo]Wing I posed and resolved by 'qim; the time the :;:::tio:adthe ;sti:c:u:~whi:1d:: th observed him; the conditions in which uch 1 observations occurred, to} instance wheth er it ~ II I was day or night time, whether there . I I was good or poor lighting at the scene; ! I and further whether the witness knewl or [ had seen the accused I before or not. . These matters are but a (ew of the matte~s to which the trial Judge sh~uld direct his fnind i: 6 before coming to any de~nite conclusion bn the issue of identity. i 1 (Emphasis SU Pflied) In this case, it is common grou~d that PW1 was the only eye I I witness to the incident. It is also not iJ dispute that th4 incident took I place at 7.30 p.m. According to PW1~ when cross-ex9mined by the I I , appellant, it was "night" at the time, to suggest in effkct that it was already dark by then. If so, one woulJj, have expected ~ore evidence 1 1 I I from PWl as to whether or nor the plfce was well an~ adequately lit to allow for correct identification. We appreciate that PW1 stated that there was electricity light. He diJ not, however, LY whether he ' stood near or a bit far from the ligit; whether the [electricity light . came out from nearby houses or street poles; whet~er it was from l . I fluorescent tube lights or bulbs; and whether it was bright enough to I I I! allow for correct identification. It was important. to have more !I evidence adduced on the said light because admittedly it was a dark 1 : 1 I I night and PW1 was seeing the ap~ellant for the first time. The • I i incident was sudden and did not thJrefore take a lohg time. There 1: I I were many other people at the see.re. Hence ther~ was always a 7 possibility of mistaken identity. In the fubsence of stronig evidence of I i conditions favouring a correct identifi1ation, we are, rith respect, unable to go along with the courts '~elow that the appellant was .I properly identified on the fateful day and time. This brings us to the evidence :of PW2 on the arrest of the . j I appellant at the cemetery. It will be (recalled that PW2 stated that he, together with other policemen, wejht to the cemet,ry where they met the appellant with other people. On seeing the policemen, the 1 : :! I appellant and the other persons, ~bn away leaving behind two :J. I bicycles. The policemen chased them !.but managed to .arrest only the !' I appellant. This incident happened be~een 8.30 - :1 9.doI p.m. when it I! was already dark. PW2 did not state how he identifie8 the appellant I I I ' during that night to have been amon:g the group ofi people which i' I dispersed and ran away after seein9: the police lea/ing behind the two bicycles. In the absence of kvidence of identification, the '/: I 1 appellant's assertion that he was merely passing bi the cemetery I when he was suddenly arrested was probable in the c/iircumstances of . l i the case. Hence, we are in agreement with Mr. raishozi, in his I 8 /1 submission before us, that the evidente of PW2 did hot establish positively that the appellant was amonl the group of ~eople at the I cemetery which ran away leaving be hind the bicycl~ which was I 1 11 i eventually identified by PWl. i In our evaluation of the entire efidence, we are ,satisfied that the evidence of PW1 and PW2 did not establish beyo~d reasonable doubt that the appellant committed the offence he was/ charged with ' ! and convicted of. On the available eJidence, he was ~ntitled to be given the benefit of doubt and thereby earn an acquittal. . r I l . We accordingly allow the appea1i quash the conJiction and set aside the sentence. The appellant Js to be release~ from prison I I unless otherwise lawfully held therein.' I I I I I I 9 , DATED at TAN GA this 9th day-of ,IDuly, ,, 2009. . '' I,'! . : I A5.L. RAMAD~ANI CHIEF JUSTICE : ,, ': i' r: ! . i ' ( P.A. LYIMO - ' ) .. 'I DEPUTY EGISTRAR ',' •I l , '1. ;t '\ i : ; I I I f