20090430 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA AT DODOMA. APPELLATE JURISDICTION (DC) CRIMINAL APPEAt 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. JUDGMENT MJEMMAS,·J.: The four appellants, namely Ndahani Mqzengo, Taifa ·"·. Mada.raka, Mahajile Selemdni and Masi , Ma"skdka were : \, 1_ ,·: charged, prosecuted and convicted by the District. Court. of - . . :: .,. '. -·•· . .·'"':':.':, ; . Dodoma, of armed robbery and:eac;h of them:wG·s sentenced : - ~ to serve a term of thidy years' imprisonment with twelve strokes -~-_j~-'------------~--~---- --------· ~----- ------!l!/t' ...- _...,__-----;,-- of corporal punishment. - The appellants were aggrieved so tbey preferred the present app~al 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 0Q.00hrs at Chipanga "B" village within Dodoma Rural District and Region of Dodoma the house of one Zacharia . Chilala (PWl} was invaded by -bandits who cut him with a. sword (sime) and stole Tshs. 520,000/= and clothes valued at Tsh. 400,000/=. PW 1 claimed to have identified the bandits as the present appellants. The appellants prepared and filed a joint memorandum (petition?)- of appeal. However, before the appeal was heard · the first appellant hired a lawyer or rather an advocate one Mr. · Lussa from Njulumi and c6mpany advocates to represent him. The learned advocate extracted three grounds of appeal from the joint petition of appeal and presented them as grounds of appeal for the first appellant. However, at the hearing of the appeal he abandoned the third ground of appeal and argued the first and second grounds only. The rest of the appellants were unrepresented a0d they appeared in persor:i. The · - respondent.,- .. the Republic ,-~ . . . was represented by Mr. Nchimbi, learned State A ttornel ·"·•\ 2 ·As . stated before, the 2nd - 4 th appellants were _: unfepre'sented .. . and during the hearing of the appeal they did . . ... · __ ..,,),;: .··nof ·.· have anything to add . to elaborate their grounds of : . ·~ ,·'·!'iappeaL Arguing the first ground of· appeal, Mr. Lussa, learned counsel for the first appellant submitted that there was no proper identification of the first appellant. He stated that PWl said that he identified the appellants by assistance of moonlight and torch light and in the advocates 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. Luss a submitted further that when PW 1 and PW2 raised alarm, people came but at that time the bandits had gone, however PW3 said that he saw tt-"!e appellants running away 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 Jo the evidence of PW 1 and_ PW2. .... -~~, :·. . . .. -- _.··· - . -·· .... .,·· : ...,,. ·_ ••.,_; · :_ Mr. Lusso cht:i'11enged also the evidence of PW 4 - Antony - \:,:· : s/o Kawindi who said that he saw the appellants running and .3 r1 I he identified them after he had flashed his torch. Mr. Lu-ssa submitted that such identification was doubtful because the said people were running in the opposite direction and it is not clear whether they stopped or not. M,r. Lussa made a brief submission on the second ground of appeal. 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 res·pondent - 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 evidence of PWl, PW2 and PW3 he found ., obvious contradictions which raise doubt whether the appellants were 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 JJ,e intruders. - Mr. Nchimbi also said that it is .not :..~ clear yv1hen did PW2 -ran outside and put under _arrest as ·::-t-- . . ~;, cla'irned. ~- 4 It is my humble opinion that the major issue for determination in this appeal is that of identification of the appellants. The trial Magistrate addressed it and he was satisfied that the appellants were properly identified by PW 1, PW2, PW3 and PW4 becouse 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 express~d doubt on the identification of the appellants. · The low relating to visual identification of a wifness is now .. settled. It was stated in the case of Waziri Amani VR [1980) TLR 250 that no court should act on evidence of visual " identification unless all possibilities of mistaken identity ore · ~ eliminated and the court is fully satisfied that the evidence before· it is absolutely waterlight. That before a · judge can ·< accept and convict on such evidence he hos to make a close ·examination and analysis of the circumstances in which the·< identification of each witness came to be made. The court . -- . should, for example, look at the time the witness hod the. accused under observation; the distance at which he observed him; the conditions in which such observation 5 , : ' < ·~~~- occurred, for instance· 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 accused before. There are two things which are not disputed in this matter. The first one is that the incident· took place in the night. The second one is that the -appellants were known before by the · witnesses since they were fellow villagers. PW 1 stated that the bandits forced his door open at around 1.00 a.m and he saw Ndahani Mazengo (1 st appellant} who ordered him (PWl} to sit down. PWl refused to sit down so the first appellant cut him with a "sime" (sword) on his back and on the chest. PW l tried to run aw<;:1y but· he met, Tai fa at the door and he had a gun. So PWl sat down. According to PWl he managed to identify the thugs because there. was moonlight. During c_ross examination by the 1st appellant PWl · r . said I quote him - "This accused had a torch which he flashed on my. ' face. I managed to identify him. We stay in the same village and is known to me." .If we stop h~re for a while and scrutinize the evidence ·of PW l it is clear that he was telling lies. First, when the bandits broke or forced the door open and entered-PW 1 was inside the 6 ,,. r , ' 10 house. He stated that he woke up but he di.d not say that there was a lit lamp or any source of light. According to him (PW 1) there wos 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 claimed that he managed to identify the 2nd , 3rd and 4th appellants who were outside the house and he did so through the help of moonlight. " ',t However the same person (PWl) said that when the first ~ appellant stormed into his house and cut him with a "sime" he . . . tried to· run away 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 PWl _, h_ow could he· identify people who were outside the house? Third, PWl also stated that Mahajile (3rd appellant) and Mosi (4th \ appellant) were outside Jhe house .. but he also said that the , said appellants took cash Tshs. 520,000/= and clothes which were valued at Tsh. 400,000/=. The que.stion is when did these appellants (3 rd and 4th ) cross or pass at the door where PWl was sitting and took the said money and clothes? Fourth, PW 1 said that the firsfappellant had-a torch which he flashed on his (PWl) f~ce so· he- managed, to· ,identi.fy the appellant. As . -- .. ~ · correctly observed by Mr.· Lussa, learned counsel for the first ' appellant and also Mr. Nchimbi, learned State Attorney it was 7 r1. - ------ -~7~/ .. \J not possible for the witness (PWl) to identify the appellants through torch light which was directed at his face. The effect of the beam rays is to impair vision. In the case of Mohamed Musero V. Republic (19~3] TLR 290 it was h~ld that torch lights are not effective in identifying thieves. The evidence of PW2 - Bahati Charles Zacharia who is wife of PW 1 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 managed to escape and went outside but she was put under arrest. As to the manner in which she identified the appellants she gave 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 entered inside had torches so there was light through those torches." She also said .r that . the first appellant had a torch. Although PW 1 did not s.ay how many people had torches (except the first accused person) I have already explained the legal position on tor.ches in identification cases. So it is my considered opinion that PW2 also could not identify the appellants inside the house wh~re there was no other source of ligh.t except torches held by the bandits. let me point out quickly that PW2 did not mention or 8 say anything concerning moonlight while inside the house so there is this difference in herevidence and that of PWl. I The second version of PW2' s manner of identification was that after she had_ escaped and went outside she managed to identify a!I 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 sarr:-ie 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 PWl and PW2 and also· there is no dispute that the incident took some time - i.e about one hour as alleged. Those circumstances could have been favourable to allow identification_ of the appellants. There are, however, some ' doubts ~heth_er the appellants were properly identified. The first thing is that there are some contradictions in the eviden.ce of PWl and PW2. PWl stated that when he tried to run away 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 escaped and went outside or he saw_her under arrest outside the house. However PW2 . stated that after stie · hdd been cut her finger she 9 managed to escape. She managed to identify the appellants when she was outside under arrest. She said there was moonlight which enabled her to identify them. There is contradic;tion in the evidence of PW 1 and PW2 with regard to ~ their positions when they identified the appellants. As stated before PW 1 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 escaped and that she was put under arrest outside where she identified the appellants. lnfact PW3 stated that it was PWl who was "under ambush seated." With those contradictions I find it difficult to accept the evidence of PW2 as be_ing free from mistaken identity. There is evidence of PW3 and PW 4 who claimed 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 f Zacharia and at a distance of six (6) metres he met five people. He heard a voice "too he/a" and the sqid Zacharia was "under· ambush seated. " He flashed his torch and identified Taifo 0 , • Ndahani, Mosi, Mahajile and Chibalango. According to the witness (PW3} the said people ran away after he had flashed his torch. He therefore changed direction and raised alarm. PW3 also sqid; that 'tbe· qpp,ellants had or were wearing the some clothes as th~y had during the trial. . '~ . ... . ~ •':}.-. . . . ,I have seriously considered the evidence of 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 away one wonders how he was able to identify all five people and the description of the clothes each was wearing ' . notwithstanding that he knew them before. Two, the witness admitted during cross examination by the first accused (1 st appellant) that there are some bushes. That also shows that the circumstances under which the identification was made were quite unfavourable i.e night time and presence of bushes. Three, tbe 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 t,he torch light so the i witness could not easily identify them. Four, the witness said that he inquired from Zacharia (PW 1) as to who were the culprits. The r 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 because either he did not identify the culprits or he was not sur~ of what he saw. It _is my considered opinion· · · that th~ -~vidence._-et . . - . ··~ f§>W3 ... .ssis. so-weak. .· . ·'~ .,. . to be believed·. I would ~: ·. olso say_ the same thing t~ the evidence of PW 4. 11 I find it unnecessary to comment on Mr. Lussa 's submission ' •. on the second ground of appeal. 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. 12,