ndahani mazengi others vs republic 2009 tzhc 61 30 april 2009

IN THE HIGH COURT OF TANZANIA AT DODOMA APPELLATE JURISDICTION (DC) CRIMINAL APPEAL NO. 38 OF 2007 ORIGINAL CRIMINAL CASE NO. 48 OF 2006 OF THE DISTRICT COURT OF DODOMA DISTRICT AT DODOMA 1. NDAHANI MAZENGI ^ 2. TAIFA MADARAKA ........APPELLANTS 3. MAHANJILE SELEMAN 4. MOSI MASKAKA Versus THE REPUBLIC ........................ RESPONDENT Date of last Order - 23/3/2009. Date of Judgment - 30/4/2009. J UDGMENT MJEMMAS, J.: The four appellants, nam ely Ndahani Mazengo, Taifa M adaraka, Mahajile Selemani and Mosi Maskaka were charged, prosecuted and convicted, by the District Court of Dodoma, of armed robbery and.'each of therrvwas sentenced to serve a term of thirty years’ imprisonment with twelve strokes of corporal punishment. The appellants were aggrieved so they preferred the present ap p eal to this court. It is, perhaps, important at this point to give a brief ♦ background of this matter. It was alleged that on 5.2.2006 at around OQ.OOhrs at Chipanga “BMvillage within Dodoma Rural District and Region of Dodoma the house of one Zacharia Chilala (PW1) was invaded by bandits who cut him with a sword (sime) and stole Tshs. 520,000/= and clothes valued at Tsh. 400,000/=. PW1 claim ed to have identified the bandits as the present appellants. The appellants prepared and filed a joint memorandum (petition?) of a p p e a l. However, before the ap p eal was heard •the first appellant hired a lawyer or rather an a d vo ca te one Mr. Lussa from Njulumi and com pany ad vo cates to represent him. The learned a d v o ca te extracted three grounds of appeal from the joint petition of ap p eal and presented them as grounds of r appeal for the first appellant. However, at the hearing of the appeal he ab and o ned the third ground of ap p eal and argued the first and second grounds only. The rest of the appellants were unrepresented and they ap p eared in person. The' respondent - the Republic was represented by Mr. Nchimbi, learned State Attorney*. As stated before, the 2nd - 4th appellants were unrepresented and during the hearing of the ap p eal they did not have anything to add to elaborate their grounds of appeal. Arguing the first ground of ap p eal, Mr. Lussa, learned counsel for the first appellant submitted that there was no proper identification of the first appellant. He stated that PW1 said that he identified the appellants by assistance of moonlight and torch light and in the ad vo cates view moonlight was not sufficient enough to identify a person when the identifying witness is inside a house. Mr. Lussa also submitted that torch light is not a good or reliable source of light to identify the appellants. He referred this court to the case of Mohamed Msero VR [1993] TLR 290. Mr. Lussa submitted further that when PW1 and PW2 raised alarm, people ca m e but at that time the bandits had gone, however PW3 said that he saw the appellants running aw ay from the scene of incident. He said he saw them at a distance of six metres. According to Mr. Lussa the evidence of PW3 is contradictory .to the evidence of PW1 and PW2. „ Mr. Lussa challenged also the evid ence of PW4 - Antony s/o Kawindi who said that he saw the appellants running and he identified them after he had flashed his torch. Mr. Lussa submitted that such identification was doubtful b ecause the said people were running in the opposite direction and it is not clear whether they stopped of not. Mr. Lussa m ade a brief submission on the second ground of ap p eal. He stated that there was no circumstantial evidence pointing irresistibly to the guilty of the first appellant. He referred this court to the case of D.P.P Vs. Elias Mwashitate and others [1997] TLR 319. Mr. Nchimbi, learned State Attorney who represented the respondent - the Republic started his submission by supporting the conviction of the appellants, however, in the course of his submission and after a second thought he withdrew his earlier statement of supporting the conviction. He stated that after he had re-examined the evid ence of PW1, PW2 and PW3 he found obvious contradictions which raise doubt whether the appellants w ere properly identified. Mr. Nchimbi stated further that none of the witnesses could have identified the appellants or intruders inside the house where there was no light except, torch light from,the intruders. Mr. Nchimbi also said that it is.not clear when did PW2 ran outside and put under arrest as claim ed. It is my humble opinion that the major issue tor determination in this ap p eal is that of identification of the appellants. The trial Magistrate addressed it and he was satisfied that the appellants were properly identified by PW1, PW2, PW3 and PW4 because there was moonlight and torch light and that the appellants were known before by the said witnesses. Mr. Lussa, learned counsel for the first appellant and the other unrepresented appellants have challenged their identification by the said prosecution witnesses. As stated before, even Mr. Nchimbi,learned State Attorney for the respondent the Republic has expressed doubt on the identification of the appellants. The law relating to visual identification of a witness is now settled. It was stated in the case of Waziri Amani VR [1980] TLR 250 that no court should a ct on evid ence of visual , identification unless all possibilities of mistaken identity are eliminated and the court is fully satisfied that the evidence before it is absolutely waterlight. That before a judge can a c ce p t and convict on such evidence he has to make a close examination and analysis of the circum stances in which the identification of ea ch witness cam e to be m ade. The court should, for exam ple, look at the time the witness had the accused under observation; the distance at which he observed him; the conditions in which such observation occurred, for in stan ce1 whether it was day or night time, whether there was good or poor lighting at the scene and whether the witness knew or had seen the accu se d before. There are two things which are not disputed in this matter. The first one is that the incident took p lace in the night. The second one is that the appellants were known before by the witnesses since they were fellow villagers. PW1 stated that the bandits forced his door open at around 1.00 a.m and he saw Ndahani Mazengo (1st appellant) who ordered him (PW1) to sit down. PW1 refused to sit down so the first appellant cut him with a “sime” (sword) on his b ack and on the chest. PW1 tried to run a w a y but he met Taifa at the door and he had a gun. So PW1 sat down. According to PW1 he m anaged to identify the thugs b ecause there was moonlight. During cross examination by the 1st appellant PW1 said I quote him - “This a c c u s e d had a torch which he flashed on my * face . I m a n a g ed to identify him. We stay in the sam e village and is known to m e." If w e stop here for a while and scrutinize the evid ence of PW1 it is clear that he was telling lies. First, when the bandits broke or forced the door open and entered PW1 was inside the house. He stated that he woke up but he did not say that there • was a lit lamp or any source of light. According to him (PW1) there was moonlight but one wonders how could moonlight help a person who is inside a room to identify another person who has entered suddenly? He did not say whether the house had see through wide windows which could allow moon light to pass through. Second, the witness claim ed that he m anaged to identify the 2nd, 3rd and 4th appellants who were outside the house and he did so through the help of moonlight. However the same person (PW1) said that when the first appellant stormed into his house and cut him with a "sime” he tried to run a w a y but he was stopped by the second appellant at the door and he sat down. If he was stopped at the door by the second appellant who had a gun as alleged by PW1, how could he identify people who were outside the house? Third, PWlalso stated that Mahajile (3rd appellant) and Mosi (4th appellant) were outside the house but he also said that the ' said appellants took cash Tshs. 520,000/= and clothes which were valued at Tsh. 400,000/=. The question is when did these appellants (3rd and 4th) cross or pass at the door where PW1 was sitting and took the said money and clothes? Fourth, PW1 said that the first appellant had a torch which he flashed on his (PW1) fa c e so he. m anaged, to'identify the appellant. As correctly observed by Mr. Lussa, learned counsel for the first ' appellant and also Mr. Nchimbi, learned State Attorney it was not possible for the witness (PW1) to identify the appellants through torch light which was directed at his fa c e . The effect of the beam rays is to impair vision. In the ca se of Mohamed Musero V. Republic [1993] TLR 290 it was held that torch lights are not effective in identifying thieves. The evid ence of PW2 - Bahati Charles Zacharia who is wife of PW1 is to the effect that bandits invaded their house in midnight and three of them entered inside. That they started to cut her and her husband with “sime". The bandits wanted money. She was cut on her finger and she m anaged to escap e and went outside but she was put under arrest. As to the manner in which she identified the appellants she g ave two versions. In one version she said that she identified them through torch lights. She stated during cross examination by the third appellant that "a// three who en tered inside hod torches so there was light through those torch es.” She also said that the first appellant had a torch. Although PW1 did not say how many people had torches (except the first accu sed person) I have already explained the legal position on torches in identification cases. So it is my considered opinion that PW2 also could not identify the appellants inside the house where there was no other source of light except torches held by the bandits. Let me point out quickly that PW2 did not mention or say anything concerning moonlight while inside the house so there is this difference in her evidence and that of PW1. The second version of PW2’s manner of identification was that after she had escap ed and went outside she m anaged to identify all the appellants by the help of moon light. Well there is no dispute that the appellants are or were well known to the witness before the incident because they live in the same village. According to PW2 the whole incident took about one hour. Under normal circumstances one hour is sufficient time to observe and recognize a person and especially when that person is known before by the observer. In the present appeal there is no dispute that the appellants were known before by PW1 and PW2 and also there is no dispute that the incident took some time - i.e about one hour as alleged. Those circum stances could have been favourable to allow identification of the appellants. There are, however, some ' doubts whether the appellants were properly identified. The first thing is that there are some contradictions in the evidence of PW1 and PW2. PW1 stated that when he tried to run aw ay he was stopped by Taifa (second appellant) at the door and that he sat down. He also said that his wife who was inside raised alarm. He did not say that his wife escap ed and went outside or he saw her under arrest outside the house. However PW2 stated that after she had been cut her finger she m anaged to e scap e . She m anaged to identify the appellants when she was outside under arrest. She said there was moonlight which enabled her to identify them. There is contradiction in the evidence of PW1 and PW2 with regard to their positions when they identified the appellants. As stated before PW1 said that he was stopped at the door and he sat there and his wife was inside raising alarm. However PW2 (wife) stated that she e scap ed and that she was put under arrest outside where she identified the appellants. Infact PW3 stated that it was PW1 who was “under ambush seated .” With those contradictions I find it difficult to a c c e p t the evidence of PW2 as being free from mistaken identity. There is evid ence of PW3 and PW4 who claim ed also to have identified the appellants. According to PW3 in the material night he heard a “bullet shot” and went outside armed with a stick and a torch. He went to his neighbour Zacharia and at a distance of six (6) metres he met five people. He heard a voice “toa h eld ” and the said Zacharia was “under ambush seated. “ He flashed his torch and identified Taifa, Ndahani, Mosi, Mahajile and Chibalango. According to the witness (PW3) the said people ran aw ay after he had flashed his torch. He therefore changed direction and raised alarm. PW3 also said .that the appellants had or were wearing the same clothes as they had during the trial. I have seriously considered the evid ence ot PW3 and concluded that it suffers from a number of weaknesses. One, he did not say for how long he observed the culprits. In fact if it is true that when he flashed his torch the appellants or culprits ran a w a y one wonders how he was able to identify all five people and the description of the clothes e a ch was wearing notwithstanding that he knew them before. Two, the witness admitted during cross examination by the first accu sed (1st appellant) that there are some bushes. That also shows that the circum stances under which the identification was m ade were quite unfavourable i.e night time and presence of bushes. Three, the witness said during cross examination by the second appellant that the appellants ‘‘were not in a line but around “walimzingira” . Now if they were in a circle it means that some of them had their backs against the torch light so the witness could not easily identify them. Four, the witness said that he inquired from Zacharia (PW1) as to who were the culprits. The witness said that he asked the question although he had identified them in order to confirm his observation. That- reasoning is not convincing. One could only say that he asked the question b ecause either he did not identify the culprits or he was not sure of w hat he saw. It is my considered opinion' that the evid ence o f PW3 -is so w eak to be believed. I would also say the sam e thing to the evidence of PW4. I find it unnecessary to com ment on Mr. Lussa’s submission on the second ground of ap p eal. In the upshot this appeal succeeds. The conviction against the appellants is hereby quashed and sentences set aside. It is ordered that the appellants be set free forthwith unless held for some other lawful cause. Order accordingly. c (G. J. I<L fftjE^lMAS) JUDGE / I 30:4.2009