mericho andrew others vs republic 2009 tzhc 73 19 march 2009

IN THE HIGH COURT OF TANZANIA AT MTWARA CONS. CRIMINAL APPEAL NOS. 153 -1 5 7 OF 2007 ORIGINAL MASASI DISTRICT COURT17 CRIMINAL CASE NO. 95 OF 2007_ = JSjfore. W ,fc tS ffiE Y , Esq; PDM MERICHO ANDREW AND 4 OTHERS ...........APPELLANTS VERSUS THE REPUBLIC.............. .................................RESPONDENT Date of Last order - 12/12/2008 Date of Judgment - 19/03/200S JUDGMENT Ml PAW A, J. Mericho Andrew, Oscar Robert, Novatus Mlaponi, Yazidu Ally and Ramadhani Ally hereinafter referred to and nomenclatured as the first, second, third, fourth and fifth appellants were charged in the District Court of Masasi with the offence of armed robbery c/s 287(1) of the Penal Code. It being alleged that on 18th day of May, 2007 at about 2.30 hrs the appellants broke into a shop[ of one Juma V .L&pilima and stole various items listed in the charge sheet and that before or after the theft they used a piece of iron bar commonly known aS'“nondo” and bush knife “panga” in order to obtain the said properties. The appellants were convicted at the end of the day and each reaped a sentence of thirty yp?rs imprisonment. Dissatisfied with the decision of the lower court, the app en d ix have lodgea tnis a n.no*?!i jw ^ W w* • 1 Briefly in order to comprehend what transpired in the lower court, the facts were as_ follows. The owner of the broken shop*. PW.1 Juma Kimelia Kapilima told the court that he knows’ the: appellants well and that‘ ofTl8/5/20p7 at 2.30 am while at home he received a telephone call village, whictefe - far froSFhis home had been broken by thieves and many items stolen. He listed many items valued at 2,639,600/=. He was further told that the thieves were seen by a son of his brother who managed to follow them but was assaulted on the chest and fell down and that he identified the thieves with the help of torch light. The son of his brother PW.2 Victor William Hokororo who was the shopkeeper of the a* sftop belonging to his junior father PW.1 testified that he knows the appellants as they were customers of the shop, her .said while asleep on 18/5/2007 at about 2.00 am he heard the door of the shop bei.ng broken, he took a torch and went out to the shop which was about ten paces from where he was sleeping. He stood outside and saw five people taking goods out. He identified the thieves to be the appellants. He testified further that when the thieves noted his appearance, he advanced towards them but was hit on the chest and fell down. He said some of them had carried iron barsand .Pushknives. He (PW.2) went to the Village Executive Officer one Emilius Regino Katiko. PW.3 and reported the incident. He mentioned the names of the thieves appellants to PW.3 who took the nitiative of going to the scene, there he was told by PW.2 that he dentified the appellant because there was a mooniight and by the ight of his torch. Pw.4 Julius Mlaponi a militiaman of Namombe illage told the court th^t he was followed and asked to trace the lieves [appellant] and that PW.2 had the names of the appellants whom he claimed to have identified them. They arrested the appellants at Nanganga and police came to take then to central-; police station at Masasi. ------ The Police officer who iRvestig^ed: the ca s ^ P W .5 E.8257 D/fe Carolitofcf tITe court "that he interrogatedThe appellants who had been arrested and that he was told by PW.2 Victor Hokororo that the appellants were his customers/clients at the shop and on the incident he was enabled by the moonlight and a torch light he shone to the appellants and identified then. PW.2 reported to VEO PW.3 and the gnpellants were arrested "and ultimately charged for they were identified by face. The defence of the appellants in the lower court was more or less the same. They claimed to be arrested at different dates and hours also at different places without explanation from those who arrested then. DW.1 Mericho Andrea claimed to have been arrested by militiamen on 21/5/2007 at his home and sent to Police Station. DW.2 Oscar Robert was arrested by Militiamen on 22/5/2007 and put under custody he was brought to court on 4/6/2007. Equally the third )pellant DW.3 told the court that on 23/1/2007 in the evening while going to his home, he met with militiamen who put him under arrest, sent to police station and charged with the present offence. Yazidu Ally DW.4 told the court that on 26/5/2007 a militiaman came with the village chairmen at his home and arrested him and later he was charged with the present offence. The fifth appellant RamadHani Ally DW.5 was followed by two militiamen who told him that he was needed at the village office. At the village office he was toid ihat the oolice needed him at Masasi Police Station. On 28/5/2007 he was jliowed by the Police and arrested. At Police station he found all his : ^-.co-appellants already there. ^ — — The appellants in their p e titio n s ^ appeal asserted more or less the same reasons to avoid repetition I -have mouldafeabout fiva— f^ u n d S r O f- tf^ ^ p p e a l 'T h e a p p e lla n ti^ fs e rts lh a ftR e "!v id e n e e of DW.2 was a fabrication because it was impossible for five people to jet away with a huge weight of items such as 10 bags of wheat flour, j pieces of cooking oil [plastic] 3 bags of rice, vitenge cloths, 40 )ieces of khanga clothes e.t.c. Further PW.2 failed to raise any alarm hough he alleged that he saw five people taking out items from the ■hLy. The third ground is that of identification of the appellants by a Drch light which PW.2 had had plus a moonlight. They assert also iat the difference in items as testified by PW.1 and PW.2 and that lentioned in the charge sheet leaves doubts. Last the prosecution ide has failed to proved its case beyond reasonable doubt. The learned State Attorney who appeared Mr. Mkude for the espondent declined to support the convictions of the appellants ^cause of the issue of identification which relied only on the 'fence of PW.2. Secondly he doubts why PW.2 after seeing the jpellants removing the items from the shop and without raising an arm followed the thieves quietly when they were getting away with 9 items. Further an identification parade was required because the ;ue had involved many culprits or people. The difference of items d its value is also another doubtfully piece of evidence because ereas PW.1 told the court that the items valued at 2,636,600/“ in charge sheet the value is only 1,165,000/= further the items which 4 appeared to be huge in number and weight could not be carried by the five appellants on their shoulders except if th e y jia d a vehicle or a pull carff The learned State Attorney on thatTe^SDsTTnfer alia did not supportthe~convictions of the appellant. [Tow itTs dear from the" evidence on record that the appellants were identified by PW.2 who was the soie witness from the prosecution to claim that he saw the appellant. The identification of the appellants by PW.2 was with the help of moonlight and torch light which PW.2 had had. The issue of identification is complex especially when the incident occurs during the night. Although PW.2 i told the court that he was aided by moonlight to identify the appellants he did not tell at what distance he stood and where the appellant were. Distance is important to clear out doubts of mistaken identify of the suspect. Further identification of the appellants by torch light is by and large not reliable regard being had the distance from the suspects and the one who claims to flash the torch light to them and the power light of the torch and if the appellants or suspects were many, the modus operand he used to flash the torch light i.e now was the witness using the torch for the aim of identifying the ft i_opects was he flashing the torch light to one suspect after another )r at random! And whether or not the suspects being flashed by the orch were 'scattered or assembled together at one place. Also Not orgetting the duration or time of which the witness spent with the uspect in order to see them well. Relying heavily on the sole vidence of PW.2 the Isar^ed District Magistrate said in his judgment ■at: 5 .... Although the Robbery was committed during night time w h e n jh e re was moonlight and PW.2 was able to-identify the thieves with the help of torch4igK-and moonlight and because the thievesj^yere -Rot strangers to ~ PW.2, bearing in ^ W rfe tlia f"PW.2 reached close to the thieves.Trrrrr WitH“respeff"tcrthe findings of the- learned Resident'Magistrate as above quoted. PW.2 did not say that he was close to the thieves as the learned Magistrate said in his judgment, being close to the thieves would suggest that PW.2 saw them dearly. However the witness told the court when testifying he stood at a distance from the ihop. The following is what PW.2 said: .....There was moonlight, I took a torch and I went out going to the shop and I saw five people taking goods from the shop .... I identified the thieves to be the accuseds.... Now staying at a distance does not connote staying closer as the learned Magistrate would think. Identification of accused by a single witness especially during the night should be acted upon with great care by the court. PW.2 was a single eye witness and the circum stances which surrounded the occasion was by and large in need of another evidence to corroborate the evidence ofPW.2, because the purpose of corroboration is not to give validity or credence evidence which is deficient or suspect or incredible, but only to confirm or support that which as evidence is sufficient and satisfactory and credible. See Azizi Abdallab v, R epublic [C.A] [1991 j TLR.71. 6 it was not know also why the witness PW.2 did not raise any alarm but decided himself to follow the;suspects alone. Although he told the.- court that he raised cries'[a^uffliBgTfoTthe record]. It seems to me that the cries which he raised were the result of being hit by a :S|&Re-onr th e ^ ^ e tt: by th^iappelfaTitaran^S-Ts quite iM e re n t from raising an alarm so to speak. I entirely agree with the appellants grounds of appeal on the issue of identification and failure for PW.2 to raise an alarm inspite of the fact that he alleged to have seen the thieves getting in and out of the shop with items and alleged to have identified the thieves. ! have deeply delved on the issue of identification supra at length, that PW.2 was a single witness who testified on the prosecution side that he identified the culprits that night. Suffice it to say here that it is a settled principle that where the evidence against an accused or accuseds is solely that of identification such evidence must be water tight absolutelement to justify a conviction. R.V. Eria Sebwatao [1960] EA 174 as quoted. In Y.M. Kipanta and others v. R epublic [1987] TLR.184 and where the evidence of identification is that of a single witness like in our case at hand, there is need to test such evidence with the greatest care. The learned District Magistrate did not caution himself and take the greatest care when he was acting upon the evidence of PW.2 who was the sole eye witness on the issue of identification. There was no any evidence direct or circumstantial which could have pointed to the accuseds guilty of the offence of robbery with violence. For the trial court to say that PW.2 was able to identify the thieves is not par excellence a connotation that the c o u rt was fully satisfied that the witness was teiiing the truth or that it has warned itself before 7 'it acted upon the evidence to convict the appellants see H.J. Kanenvera v. R eoublic [1392] TLR 100 [C.A]. O irth e foregoing I proceed to allow the consolidatecjjappeals of^ the^appeljants^syssh Ib e ^ ^ ^ te tio n s ^ irn p o s e ^ S p ^ f'th '^ ra n d set' aside "the sentences' of thirty years thereof and in the event the appellants should be released from prison unless otherwise held in connection with other matters legally. S. Mipawg, Judge 4 19/3/2009 Judgment delivered today in the presence of the appellants and Mr. Mkude learned State Attorney for the Republic. \ Yt. i ^ M 'l) ^ .S. Mipawa, Judge 19/3/2009 8 Date: 19/3/2009^ Coram: Hon. LS^Mipawa, J. The Republic: IVlr. R. Mkude, State A ttorney B 1C: Namanga, RMA Court: Judgment delivered today in the presence of ail appellants also Mr. Mkude learned State Attorney who appeared for the Republic. •''i'jf. I\Jc SfSy. •••• ;!■■■: ; ' AI % \ S. Mipawa, V, .{v / Judge v X ,-1/ 19/3/2009