20111017 TZCA Mwanza2

1:~=-=·- •· . t "' .~"'! ; -_ Ii ' · IN THE COURT OF APPEAL OF TANZANIA ATMWANZA (CORAM: RUTAKANGWA, J.A., KIMARO, J.A., And ORIYO, J.A.) CRIMINAL APPEAL NO. 223 OF 2009 1. MORIS EMMANUEL 2. KIROMBA JOHN , ~--'· 3. YOSIA BUZARA ••••••••••••••••••••••••••••••••••••••••••••••• APPELLANTS VERSUS THE REPUBLIC. I ■ •• I ••• ■ •••• 111 ■ I • • • • • • I ■ I ■ 1111 ■ I • • • • I l l I I ■ •••••••••• I I 11111 ■ .RESPONDENT (Appeal from the Decision/Judgment of the High Court of Tanzania At Bukoba) (LYIMO, J.) Dated the 8 th day of April, 2009 • 1 i In Criminal Appeals No. 102, 103 And 104 of 2007 JUDGMENT OF THE COURT ; /ii' ! 1 11 & 17 October, 2011 ORIYO, J.A. I 1 i . The appellants were arraigned in the District Court of Ngara of Armed Robbery contrary to sections 285 and 287A of the Penal Code as amended ,I .] ' by the Written Laws (Miscellaneous Amendment Act) No. 4 of 2004. It was alleged at the trial that on 14th July, 2006 at about 23:30 hours the three 1 accused persons at Mangasini Mabare village within the District of Biharamulo, Kagera Region, stole Tshs. 280,000/= in cash, the property of one Kagoroba Rubambula and immediately before or after such stealing used firearm in order to obtain or retain the said properties. '(:-, ·-'~-. To substantiate the charge, the prosecution called three witnesses. The accused, in their defence pleaded not guilty to the charge. After a full trial, the accused were each convicted of armed robbery and sentenced to jail terms of 30 years each and 12 strokes of the cane. They were dissatisfied and appealed to the High Court sitting at Bukoba where their major complaint was that the trial· court based their convictions on the evidence of a single identifying witness, i.e. the complainant, (PWl). After a thorough reappraisal of the evidence, the first appellate judge upheld the trial court's decision and accordingly dismissed the appeals. ?till dissatisfied the appellants have come to this Court. As in the first . appellate ~curt, each appellant filed a separate memorandum of l ,,.,i appeal. While Kiromba John and Moris Emmanuel filed one set of J memorandum each, Yosia Buzara filed a memorandum of appeal and a 2 supplementary memorandum of appeal. All four sets of memoranda were lodged on the same date, 3rd October, 2011 and their complaints were more or less identical. When the appeal was called on for hearing, Mr. David Kakwaya, .'<t.. ~~- learned State Attorney, appeared for the respondent. The appellants appeared in person. Submitting in support of the appeal Mr. Kakwaya stated that the appellants' conviction was based on the evidence of the complainant, PW1, whose evidence was partly of identification of the appellants at the scene and partly on circumstantial evidence. On the evidence of identification the learned State Attorney observed that PWl testified to have identified the appellants with the aid of a light from a "chemli" lamp and light from a torch carried by the appellants. Mr. Kakwaya wondered, if the "chemli" light was sufficient to aid PWl identify all the three appellants, why did he need additional light from the torch if the "chemli" light was adequate. Further learned State Attorney pointed 3 out that PW1 did not explain how the torch light was shone to assist him to identify the appellants. He submitted that the testimony on identification of the appellants at the scene by PWl was doubtful and not watertight. The oth~~piece of evidence of identification by PWl is what the . '· learned State Attorney referred to as circumstantial evidence. PWl testified that he recognized the appellants because he had seen them a day earlier when they visited his farm for the purpose of purchasing cattle from him and paid Shs. 20,000/- as advance payment for the purchase price of Shs. 80,000/=. It was Mr. Kakwaya's view that this second piece of evidence was based more on suspicion rather than real. We shall· begin with the evidence of visual identification of the I appellants at the scene. We are alive that it was given by a single I :· ' witness, PWl, without any corroboration. The question of identification by a single witness has long been settled. In the case of Abdulla Wenda and Another Vs R [1953] 20 EACA 166, the Court of Appeal of East Africa had this to say:- 4 Subject to certain well-known exceptions it is trite 11 law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need ' for testing with the greatest care the evidence of a single witness respecting identification, especially ~.- when it is known that the conditions favouring a correct identification were lacking. In such circumstances what is needed is other evidence, whether it be circumstantial or direct, pointing to guilt, from which a judge or jury can reasonably conclude that the evidence of identification, « although based on the testimony of a single witness !, ~\ i! i" can safely be accepted as free from the possibility h I 1;i \ of error'~ t v '·, 1. I i ,. ! :! See also ttie case of Francis Majaliwa Deus and Others Vs R, Criminal Appeal No. 139 of 2005, (unreported). l 5 l r The issue is whether the conditions at the scene favoured a correct, unmistaken identification of the appellant as observed by the Court in the case of Raymond Francis Vs R [1994] TLR 100 at page 103 where it was stated:- ' "..... .it is elementary that in a criminal case where determination depends essentially on identification, evidence on conditions favouring a correct identification is of utmost importance'~ The salient factors to be considered when examining the circumstances in which the witness made the identification of the appellants are now se~led as laid down in Waziri Amani V R [1980] TLR 250. Such factors include:- - the time of incident, - the length of time the witness had the accused under observation, . - the distance at which the observation occurred, 6 if night time, the source of light and its intensity, Whether witness had seen or knew accused before. ~., In this case, it is not in dispute that the incident took place at night (at 23:30 hours). The available source of light according to PW1, was from a "chemli" lamp and from a torch held by the bandits. Was the light from the "chemli" lamp and the light from the bandits torch sufficient for the purposes of aiding PW1 to identify the appellants in the night? It is also doubtful that the light from the torch held by the bandits aided PW1 to identify the bandits. As it was correctly stated by the Court in Said Chaly Scania Vs R Criminal Appeal No. 69 of 2005: (unreported) "..... .it is highly improbable that a person in whose face a torch fight is shone at night would be able to see clearly and recognize reliably the person 7 directing the torchlight to his face. Such light would have temporary blinding effect on his eyes and, consequently, disable him from seeing clearly in front of him'~ ~- . ,. We are satisfied that the source of light at the scene was from a "chemli" lamp. However evidence is missing on the size of the room lit, the intensity of the light, etc. It is for these unsatisfactory conditions at the scene that we think that Mr. Kakwaya, learned State Attorney, is correct in his submissions that the conditions for a proper, unmistaken identification of the • appellants were. unfavourable and the possibility of mistaken identity cannot be ruled out in this case. ·i i. ' In the result, we allow the appeals of all the three appellants by quashing their convictions for armed robbery and setting aside the sentences imposed upon each. The appellants are to be set free forthwith unless otherwise lawfully detained. 8 DATED at MWANZA this lih day of October, 2011 E.M.K. RUTAKANGWA JUSTICE OF APPEAL N.P. KIMARO JUSTICE OF APPEAL K.K. ORIYO JUSTICE OF APPEAL I certify that this is the true copy of the original ~ i • ; I I I, J.S. MGETTA DEPUTY REGISTRAR COURT OF APPEAL q .. I V l 9 i r I I