dachi joseph kabwa vs republic 2010 tzhc 275 5 march 2010

IN THE HIGH COURT OF TANZANIA AT IRINGA APPELLATE JURISDICTION (DC) CRIMINAL APPEAL NO. 43 OF 2008 ORIGINAL CRIMINAL CASE NO. 295 OF 2003 OF THE DISTRICT COURT OF IRINGA DISTRICT AT IRINGA BEFORE E.K. MATEMBELE Esq. Resident Magistrate DACHI JOSEPH KABWA................................ APPELLANT VERSUS THE REPUBLIC........................................... RESPONDENT JUDGMENT MKUYE. J The appellant Dachi Joseph Kabwa was convicted of robbery with violence contrary to sections 285 and 286 of the Penal Code, Cap 16, R.E. 2002 and was sentenced to fifteen years imprisonment. He has appealed. The facts constituting this appeal are that: 1 On 15/5/2003 at about 20.15 hrs while Richard Gau (PW2) was drinking some tea with his wife at home, were invaded by robberers. The robberers ordered them to be under their arrest. One robberer was holding a gun and the other one a stick. Then one of them told them that they were directed from Mbeya to collect from him 30 million shillings. On telling them he had no such money except shillings 50,000/= they asked him if he was Tom. He denied to be the one. As they were talking, one of his watchman (Juma Hatibu) (PW1) came through a real door and called him. Then the robberer who was holding a gun followed him (PW1). PW1 allegedly identified that robberer. The robberers took (stole) two guns, one rifle and one muzzle gun which were admitted as exh. PI and P2. They locked in the wife of. PW1 who had brought some food for him. Meanwhile, the robberer who followed Juma Hatibu (PW1) reached a place where they both fell down and started fighting to reposses the gun. During the scuffle PW1 was raising alarm which was responded by nearby villagers and the robberers flee away. The matter was reported to the police and the appellant was arrested on 7/7/2003 which was 53 days after the incident. In his defence, the appellant generally denied the commission of the offence. The trial court convicted him. The appellant is represented by Mr. Mushokorwa, learned Counsel and the respondent Republic is represented by Mr. Matitu, learned State Attorney who sought to support the conviction. The appellant has lodged 3 grounds of appeal which are: 2 1) Evidence of identification made at night was doubtful to found (sic) conviction. 2) Defence case was not adequately or at all considered. 3) The judgment of the court was bad at law offending the provisions of section 312 of CPA, Cap 20. R.E. 2002. •Arguing for the 1st ground of appeal Mr. Mushokorwa, learned advocate, questioned whether the appellant was properly identified. I would therefore propose to begin with the first ground with the issue whether the appellant was properly identified. Mr. Mushokorwa, on identification argued that, one, if at all the appellant was holding a gun, then the witnesses were not in favourable condition' for identification as they were terrified. To fortify his argument he referred this court to cases of Waziri Amani V R (1980) TLR 250; Saidi Hatibu V R (1984) TLR 280: Africa Mwamboqo V R (1984) TLR 241 and Salum Muhando V R (1993) TLR 170. Two, though the witnesses, PW1 and PW2 alleged that they identified the appellant due to tubelight and moonlight, they did not explain the brightness of the tubelight and moonlight. Three, Mr. Mushokorwa argued that the distance between PW1 and the appellant when PW1 identified him was not explained. Four, Mr. Mushokorwa questioned, if PW1 knew the appellant and mentioned him to the police officers, why was the appellant arrested 53 days after the incident? Five, PW1 and PW2, Mr. Mushokorwa argued, did not describe how they identified the appellant eg by voice, physique etc. as was stated in Bashiri Amiri V R (1987) TLR 97 (CA). 3 Mr. Matitu learned State Attorney on his part, vehemently argued that PW1 and PW2 identified the appellant. Mr. Matitu argued, though the appellant was holding a gun, PW1 was stable and managed to identify the appellant due to tubelight and also when they were struggling to repossess the gun due to moonlight. Mr. Matitu further argued that PW1 knew the appellant before the incident and PW1 warned him not to mention him anywhere. As for PW2, Mr. Matitu, contented he identified him due to tubelight. On my part, I do not have any quarrel with the respondent's this contention. My concern is whether the identification evidence is watertight. It is trite law that in cases involving evidence of visual identification, no court should act on such evidence unless all possibilities of mistaken identity are eliminated and that the court is satisfied that the evidence before it is watertight. (See Abdul Fariiahand Another V R (CAT) Mbeva Crim App No. 99 of 2009 (Unreported) and also Waziri Amani V R (1980) TLR 250. Also, in Afrika Mwambonqo's case (supra) it was held to be unsafe to convict in the absence of corroborative evidence where the conditions of identification were not ideal. In this case there are many loop holeswhich have remained unfilled. There is no doubt that theatmosphere was frightening when the offence was committed. PW1 and PW2 said one of robbers was held a gun. This is also reflected by the conduct of PW1 who had to run away after alerting his boss (PW2). This vitiates Mr. Matitu's argument that PW1 was stable. 4 In the first place, though PW1 and PW2 alleged to have identified the appellant, nowhere in the court record have the two witnesses explained clearly how they identified the appellant in the prevailing circumstances. Although PW1 stated that he knew the appellant even before the incident, the fact that was denied by the appellant, and that there was tubelight and moonlight, he did not give a clear explaination as to how bright was the tubelight in the house or the moonlight which enabled him to identify the appellant when they were struggling to the repossess the gun. Two, neither of the two witnesses explained as to where the tube light was placed in that house. This could have shaded light as to whether or not they could be in a better position to identify the appellant. Three, PW1 did not tell the distance between himself and where the appellant was standing when he went to alert his boss who was inside the house. This was among a very crucial factor in visual identification. Four, the incident, as alleged by Mr. Mushokorwa, took place on 15/5/2003 and the appellant was arrested 53 days thereafter. No'reasonable explaination leave alone an unreasonable one was given by the prosecution to justify the appellant's late apprehension, especially so, when taking into account that the incident was reported the same day and PW1 said knew the appellant by name. Further to that no investigator came and testified on that regard. Though Mr. Matitu, maintained that perhaps the appellant escaped, I find that was a mere speculation as there was no evidence to that effect. On the other hand Mr. Matitu further claimed that under section 143 of Evidence Act, no specific number of witnesses was required to prove an issue. Certainly that is the position of the law. However, in my considered view, in some situations like this one the investigator was required to give a clue on the matter. I think this is one of those situations where the court can draw an adverse inference (See Benedict Aietu V R (1983) TLR 199. It 5 was necessary in order to make the piece of evidence carry some weight, to lead evidence on why the appellant was arrested after such a long time. Five, PW1 and PW2 did not give description of the appellant such as clothes the appellant was wearing, voice or physique. In Bushiri Amiri V R (Supra) it was held: "description and forms of that description on the identification of the accused are matters of the highest importance of which evidence ought always to be given". In this case PW1 and PW2 attempted to describe the appellant that.he was holding a gun. But this, I think, hardly says anything regarding the identification of the appellant. It could be anybody from the three alleged to have invaded the place. In the absence of more detailed description and forms of description such as clothes, physique, colour, voice etc. the identification evidence leaves a lot to be desired. Six, the appellant is said to have been known by PW1 even b.y name. But the appellant went to the scene of crime without camouflaging himself for fear of being identified. Mr. Matitu argued that they were confident because they possessed a gun. This argument by Mr. Matitu is not persuasive to me. If PW1 was working at WEO's office at Ifunda, where the appellant resided, he must have known that PW1 was also working at Mr. Gau's house. So he must have gone there with caution. Not like the manner he went there. 6 Finally, with all that is said, I cannot hastate to find that the ‘ charge was not proved as the identification of the appellant under the given circumstances was not established beyond reasonable doubt. Having so found, I do not find it necessary to consider the second and third grounds of appeal. In the second ground of appeal it was argued that the appellant evidence was not considered by the trial court or rather the trial magistrate did not evaluate the defence evidence, instead he considered the prosecution evidence done. This was conceded and rightly so in my view, by the respondent the Republic. In the third ground of appeal which was also conceded by the Republic, it was argued that the judgment violated the provisions of section 312 (1) of the Criminal Procedure Act as it did not contain points for determination, decision and reasons for decision. In passing, it is true that the appellants' evidence was not considered by the trial magistrate. Also it is equally true that the judgment did not comply with the provisions of section 312 of the Criminal Procedure Act. But in view of my finding on the first ground of appeal, discussing the two remaining grounds would be just an academic exercise. Finally, for reasons I have endeavoured to give I allow the appeal. The conviction is quashed and the sentence is set aside. The appellant is to be released forthwith unless otherwise held for other lawful reasons. Ordered accordingly. R.K.MKUYE JUDGE 5/3/2020 7 Right of appeal explained. R.K.MKUYE JUDGE 5/3/2010 Coram: R.K.Mkuye, J Appellant: Mr. Onesmo holding brief for Mr. Mushokorwa. Respondent: Ms Ngilangwa State Attorney for Republic. Dachi Joseph Kabwa, appellant present in person. Delivered on 5/3/2010 in the presence of Mr. Onesmo, advocate holding brief for Mr. Mushokorwa and Ms Ngilangwa, for the respondent Republic and the appellant in person. i - R.K.MKUYE JUDGE 5/3/2010 8