20110923 TZCA Mwanza

• IN THE COURT OF APPEAL OF TANZANIA ATMWANZA CRIMINAL APPEAL NO.123 OF 2005 (CORAM:RUTAKANGWA, J.A, KIMARO, J.A., And LUANDA, IA.) RICHARD ALEXANDER............................................................... 1s APPELLANT PETER WILLE ............................................................ APPELLANT VERSUS THEREPUBLIC ............................................................................ . RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Mwanza) (Masanche, 1) Dated the 8th day of March 2004 in Criminal Anneals No. 122 & 123 of 2002 JUDGMENT OF THE COURT 19 & 26 September, 2011 KIMARO, J.A.: The District Court of Mwanza convicted the two appellants of the offence of armed robbery contrary to sections 285 and 286 of the Penal Code [CAP 16 R.E.2002] and sentenced each of them to thirty years imprisonment. In addition, each appellant was ordered to pay to Salvatory Stephano the complainant, an amount of T shs. 50,000/= as compensation for the injuries sustained during the commission of the offence. 1 Aggrieved by the conviction and the sentence they unsuccessfully appealed to the High Court. Still protesting their innocence, they have filed this second appeal. In their joint memorandum of appeal the appellants are basically challenging the evidence of their identification. They contend that it was not sufficient to ground their conviction as the offence was committed under difficult identifying conditions. They also complain that the evidence of the prosecution came from relaUves and there was no independent witness to corroborate the evidence of the related witnesses. Another complaint is failure to comply with the procedure in the admission of exhibits. Lastly is a specific complaint from the second appellant that he was not given time to defend himself before he was convicted. The facts in brief were that Salvatory Stephano, PW1 was a businessman running a grocery. On 15th March, 2000 he returned home at about midnight. As he approached his house he saw torch light and he thought it was his children who were outside for short calls. Before he gained access into the house he was told he was under arrest. Within no 2 time, he was hit on the head by a heavy object and his T. shillings 6,000/= which he had in his trouser pockets were taken away. It was his testimony that he was forced to go inside the house where he saw other bandits who demanded for more money. His wife who was also under the custody of the bandits told him that she had given some money to the bandits. As he had no more money to give them, they hit him again. This time he fell unconscious. According to PW1 when he recovered he was able to identify the two appellants with the assistance of a wick lamp which was on. PW1 said the first appellant was his close relative. The wife of PW1, Yusta Kasongi, PW3 gave her testimony on how she was awakened from her sleep when she heard the door of the house being broken. She lit a wick lamp and went to the sitting room where she found the appellants and other bandits and they forced her to sleep on the floor. She complied. In the meantime another door was forced open and other bandits went in. All this time her husband had not returned home from his business. Although she managed to escape and ran away out of the house, the bandits gave her a chase and managed to get hold of her and returned her inside the house. When her husband returned home, she heard the bandits talking to him. Her husband was also taken inside the house and suffered the ordeal already indicated above. Apart from PW3 being harassed and tortured by threats and use of a knife so as to force her to surrender to them money, she was raped by two bandits and was left unconscious with her hands tied up. It was when she regained consciousness that she managed to untie her hands and then ran naked to the neighbours for assistance. In that process PW3 and her husband were assisted to go to hospital for treatment. Both PW1 and PW3 said the bandits managed to take away from the house ten pieces of cushions for coaches, households, a wall clock, three trousers and cash T shillings 20,000/=. The other important witness for the prosecution was an investigation Police officer No. B 348D/SGT Vedasto PW4. He visited the scene of crime and confirmed that he found the door of the house ajar and some properties in the house missing. In his defence th e first appellant denied the commission of the offence. He gave a narration of his arrest. He conceded knowing the complainant as his relative and said he once had a family quarrel with him because PW1 received dowries for her sisters. For reasons not disclosed 4 in the proceedings of the trial court, the second appellant did not give his defence but he was present in court when the judgment was delivered. As already indicated, the appellants' appeal to the High Court was not successful. In upholding the decision of the trial court, the learned judge on first appeal held that he was satisfied that there was no mistaken identity of the appellants. Citing the case of Waziri Amani Vs R. [1980] T.L.R.250, the learned judge said the guidelines set out in the said case were met in this case in that the appellants were previously known to PW1 and PW3. PW1 was related to the first appellant as he was his uncle. The appellants were not satisfied with the decision of the High Court and they lodged this appeal. During the hearing of the appeal, the appellants, like in the subordinate courts, appeared in person. The respondent Republic was represented by Mr. David Kakwaya, learned State Attorney. The appellants had no additional grounds to add to their grounds of appeal. They also opted not to elaborate on the grounds of appeal before hearing from the learned State Attorney for the respondent Republic. 5 On his part, the learned State Attorney supported the appeal. He submitted that the identifying circumstances were difficult.- Starting with the evidence of PW1, the learned State Attorney said PW1's testimony was that he was hit by a heavy object twice and he fell down unconscious. There was no evidence to show the size of the room and the intensity of the light. Furthermore, the learned State Attorney contended, the offence was committed during the night. Although people visited the scene of crime, no evidence was led to show that the names of the appellants were disclosed to them. He said under such circumstances, it is difficult to say with certainty that there wasno mistake in the identification of the appellants. As for the evidence of PW3, the wife of PW1, the learned State Attorney said her evidence was suffering from the same deficiency. She spoke of identification with an assistance of a weak light. She also said that the appellants used torch lights, yet she did not say how that assisted her to identify the appellants and her evidence does not show that she mentioned the names of the appellants to anyone. Citing the case of Issa s/o Mgara @ Shuka V R Criminal Appeal No. 37 of 2005 11 (unreported) the learned State Attorney urged the Court to hold that the appellants were not sufficiently identified. As for the second appellant who did not give his defence the learned State Attorney said the record of the trial court does not show what happened. The learned State Attorney hesitated to pray for a re-trial because there is no sufficient evidence to support the conviction. He prayed that the appeal be allowed. As the respondent Republic supported the appeal, the appellants did not see the need for saying anything else in repIy, apart from reiterating the prayer made by the respondent Republic that their appeal should be allowed. This is a second appeal where the Court's jurisdiction to interfere with findings of facts of the subordinate courts is restricted unless there has been a misapprehension of evidence, a miscarriage of justice or some violation of some principle of the law or practice. See the case of Daniel Nguru V R Criminal Appeal No. 178 of 2004 (unreported). 7 The issue before us is whether there is need for the Court to interfere with the concurrent findings of the lower courts? As it will be shown later in this judgment, and with respect to the learned judge on first appeal, there is need for us to interfere. Starting with the ground of appeal on the identification of the appellants both PW1 and PW3 said the offence was committed at night. PW1 was hit by a heavy object twice and in that process he lost consciousness. The injuries PW1 sustained made him be admitted at Bugando Hospital. The situation for PW3 was not better. She was - terrorised, threatened with death, lifted and taken outside the house where - she was raped by two of the bandits. Later she was returned to the house where the bandits left, leaving PW3 with her hands tied. It was fortunate for her that she managed to untie her hands and moved naked to the neighbours to report the incident. Both witnesses said the source of light they had was a wick lamp. However, the intensity of the lights was not explained. The size of the room in which the incident occurred was not even given. Although PW3 said the torch light coming from the bandits assisted her in the identification of the appellants, she did not give any detail of how that light assisted her. We agree with the learned State 8 - Attorney that the circumstances under which the offence was committed, as given by PW1 and PW3 was difficult. In such a situation it is difficult for us to say with certainty that there was no mistaken identity of the appellants. In the case of Issa Mgara @ Shuka supra the Court held that: Clear evidence ought to have been given by the prosecution to establlsh beyond reasonable doubt that the li'hts relled on by the witnesses was reasonably br,'ht to enable the identifying witnesses to see and positively identify the appellant among = others. The witnesses said they had a wick lamp but they did not give any details on how that wick lamp assisted them to make a correct identification of the appellants. Both witnesses said they recognised the appellants easily because they knew them before. Indeed the evidence shows that the first appellant is related to PW1 and they once had a family quarrel. This fact notwithstanding, clear evidence of source of light ought to have been given. In the same case of Issa Mgara©Shuka the Court held: We wish to stress that even in recognition cases where such evidence may be more reliable than identification of a stranger, dear evidence of source of li'ht and its intensity is of paramount importance. This is because, as occasionally held, even when the witness is purporting to recogni'e someone whom he knows as may be the case here, mistakes in recognition of dose relatives and friends are often made. As the identifying witnesses had once been at loggerheads with the first appellant it was easy for them to suspect the first appellant. That is why it was important for the witnesses to disclose the intensity of the light which enabled them to identify correctly the appellants. Since there were no details given, we find this ground of appeal having merit and we allow it. On the second ground of appeal that the prosecution evidence came from related witnesses we must outright say that this ground has no merit. There is no law or practice which bars receipt of evidence from related witnesses. What matters in evidence is the competence and the credibility 10 of the witness to testify and nothing else. See the case of Mustapha Ramadhani Kihiyo V R. [2006] T.L.R. 323. The other ground of complaint by the appellants was failure to comply with the procedure in the admission of the exhibits. Here the appellants referred to the admission of the PF3 which was admitted in court as Exhibit P1 and P2 respectively to show the extent of injuries suffered by PW1 and PW3. This was tendered in court without objection from both appellants. In our considered opinion the omission by the trial court to inform the appellants of their right to have the doctor summoned for cross examination did not occasion any failure of justice. The appellants were facing a charge of armed robbery and it is the ingredients of the armed robbery which had to be proved. The appellants were entitled as of right to be informed of their right to have the doctor summoned for cross-examination under section 240(3) of the Criminal Procedure Act [CAP 20 R.E.2002] if the trial court was going to rely on that evidence to determine the charge the appellants were facing. In this case it is not the injuries sustained by PW1 and PW3 which prove the ingredients of the offence of armed robbery. What the prosecution are 11 required to prove in an offence of armed robbery is use of a weapon in committing theft. This ground therefore, has no merit. The last ground of appeal concerns the second appellant alone who did not give his defence. As already pointed out, the record is silent on what actually took place, and the first judge on appeal simply said that he absconded and was sentenced inabsentia. With respect to the learned judge on first appeal, the record does not support him. Page 7 of the typed judgment of the trial court shows that the judgment was delivered in the presence of the second appellant on 21/8/200 1. The record of appeal at page 16 shows that the prosecution closed its case on 2/7/2001. On that day the second appellant was present. The case was adjourned for defence hearing on 16/7/2001. On that day the case did not proceed. It was adjourned to 18/7/2001. The record of appeal further shows that the second appellant was out on bail. On 18/7/2001 the first appellant appeared in court but the second appellant did not appear. The trial court proceeded with the defence of the first appellant and adjourned the case for judgment. The judgment was 12 delivered on 21/7/2001 in the presence of the second appellant and he was convicted and sentenced as aforesaid after giving his mitigation. The learned State Attorney submitted that it would have been a good case for ordering a re —trial but since the evidence would not be sufficient to sustain a conviction he prayed that the appeal be allowed. The proceedings of the trial court show that the second appellant was present throughout the trial. He was absent on 18/7/2001 and there is no explanation given to show why he was absent. That day was fixed for defence and the court proceeded with the defence inhis absence. In terms of section 227 (b) of CAP 20 the proceedings by the trial court to proceed in his absence did not become invalid. The learned State Attorney has not supported the conviction because of the weak evidence they have. We entirely agree with him. We find the appeal having merit. We allow the appeal, quash the conviction, set aside the sentence and order the immediate release of both the appellants from prison, unless they are held for any other lawful purpose. It is so ordered. 13 DATED at MWANZA this 23rd day of September, 2011. E. M. K. RUTAKANGWA JUSTICE OF APPEAL N. P. KIMARO JUSTICE OF APPEAL B. M. LUANDA JUSTICE OF APPEAL a ( IerUfy that ti s is a true copy of the original. 3. S. MGLI IA DEPUTY REGISTRAR COURT OF APPEAL 14