20110922 TZCA Mwanza2

1 IN THE COURT OF APPEAL OF TANZANlA I ATMWANZA I I (CORAM: RUTAKANGWA, J.A., LUANDA, J.~., And ORIYO. J.A.} CRIMINAL APPEAL NO.[ 199 OF 2007 r . I SALIM S/0 ADAM @ KONGO @ MAGORI ....... •~ ............. ~ ................. APPELLANT . VERSUS Ii . THE REPUBLIC ............................................•.............................. RESPONDENT 1· (Appeal from the Judgment of the High Court of Tanzania at Musoma) I I. . I {Mackanja, ~.) i. th Dated the 16 day of May, 2007 I In CR. Sessions Case No .. 100 of 2001 I ____________ J JUDGMENT OF THE COURT ; 21 & 23 September, 2011 RUTAKANGWA, J.A: ' I I 'I 1, This is an appeal against a convicti0n for murder by the High Court [; . I sitting at Musoma; Following his convictio n the appellant was sentenced to 1 ! suffer death by hanging. Protesting his innocence, the appellant has I accessed this Court by way of this appeal being assisted by Mr. Salum I Magongo, learned advocate. I I! I I I The facts of the case were, briefly as follows:- The deceased was one I Magige s/o Onyango. He was the father of PW3 Hamisi Magige, and the 2 ·~ paternal uncle of PWl Kichere s/o Kihe~gu. On 21 st June, 1997, the I deceased and PW3 Hamisi went to graze c~ttle. At an undisclosed time the I deceased was brutally attacked. The attack~r slashed him with a machete on 11 the body, inflicting serious bodily injuries.f: The deceased collapsed while 1, bleeding profusely, as the attacker fled wit~; his weapon. PW3 Hamisi rushed I home to break the bad tidings to PWl Kichere. I The latter accompanied by I some ten other villagers hastened to the sdene of the crime, which area was 1, I i covered with thick vegetation. They found I the deceased still alive, took him 1 home and later to hospital. The deceased never returned home alive as he I i died in hospital. PW3 Hamisi, the only ey~witness, reported that it was the I appellant, Salim Adam Kongo, who had att~cked his father. I A Post-mortem examination perform~d on the body of the deceased on I th 24 June, 1997 at Musoma Hospital, estatjlished that the cause of death was 1: I "severe blood loss incompatible with life'; (exh.Pl). The appellant, having allegedly fled from the village immediately after the fatal assault, was 1 I' th arrested a year later on 24 June, 1998 ~hen he returned to the village and charged with the murder of the deceased. 1 I l ,. I 3 At his trial, the appellant categorically Idenied murdering the deceased or being in any way responsible for his deat~. He told the trial judge that he ! I could not have done so as on the day of t~e murder he was far away with I' I Chale Marera and Makunja Nyamunkozo at Ikuza Village, Mazinga Ward in I I Muleba District. The three assessors who aided the le~rned trial judge were unanimous I 1' 1, in their verdict. Accepting the visual identification evidence of PW3 Hamisi, I I they returned a verdict of guilty of murder ~s charged. I I I jl The learned trial judge, in his judg111ent, agreed with this unanimous 1' I verdict. He was satisfied that going by what he found to be the credible i; I evidence of PWl Kichere and PW3 Hamisi,1, the existence of prior bad blood I I between the appellant and the deceased, had been proved. Having so held, I, I he proceeded to reject the appellant's def~nce of alibi because he had failed 1: I to call Chale Marera and Makunja Nyarmunkozo to bear him out on this I I I defence. He categorically held that th~ appellant's failure to do so had I I, "rendered his alleged a/ibievidentiary ineffectual." 4 ' Having rejected the appellant's alibi, the learned trial judge remained ' with one crucial issue to grapple with. This was the identity of the murderer. Going by the evidence of PW3 Hamisi, whom he found to be "a young man of truth", who knew the appellant very well before that fateful day, the learned trial judge had no difficulty in finding that the appellant was the only person who could have murdered the deceased. Hence the conviction for murder. Mr. Magongo faulted the learned trial judge in unjustifiably and unreasonably rejecting the defence of alibi. He also reproached him for predicating the conviction for murder on the visual identification evidence of a sole eyewitness which was totally wanting in cogency. On these two grounds of appeal, Mr. Magongo had the support of Mr. David Kakwaya, learned State Attorney, who represented the respondent Republic. Both counsel argued convincingly that the evidence of PW3 Hamisi left much to be desired. They criticized the learned trial judge for failing to appreciate these salient facts before arriving at the guilty verdict. Firstly, the area where the murder took place was covered with thick vegetation and/or thickets. Secondly, PW3 Hamisi was not with the deceased when the deceased was attacked. He was about 60 metres away in the midst of the 5 thickets picking some pieces of loose charcoal. Thirdly, as PW3 Hamisi was not in the immediate vicinity of the exact scene of the crime he could not have easily seen and identified the attacker who vanished, as suddenly as he had appeared without being noticed by PW3, after inflicting the fatal injuries. Fourthly, the evidence of PW3 Hamisi is starkly silent on the length of time he had the attacker under observation. Fifthly, no evidence was led to show the time when the attack took place. So, contrary to the holding of the trial judge, the state of the weather and the time of the day when the fatal attack took place is not known. Sixth, while PW3 Hamisi testified to have seen the appellant cut the deceased with a machete from a distance of 60 metres on the head and hand, the Report on Post-mortem examination contradicted him. The body of the deceased had no cut wound, either on the head or on any of his hands. It was the contention of both counsel, therefore, that learned trial judge failed in his duty to objectively and properly appreciate the prosecution evidence on record from which these facts have been gathered. Had he done so, they reasoned, he would not have rejected the appellant's defence of alibi, and proceeded to hold that PW3 made an impeccable identification of 6 the appellant as the murderer. They accordingly urged us to allow this appea I in its entirety. After studying the evidence on record, the judgment of the trial High Court and considering the focused submissions of Mr. Magongo and Mr. Kakwaya, we are settled in our minds that the fact that Magige s/o Nyango was murdered on 21 st June, 1997 is not at issue. Equally uncontested is the cause of his death. What was at issue in the trial High Court, was the identity of the murderer. Having revisited their evidence and the law, the respondent Republic is now of the view that they were wrong in believing that the murderer was the appellant. They now believe that PW3 Hamisi might have been totally mistaken in his purported identification of the murderer. We, too, are equally so convinced. Admittedly, the prosecution rested its case on the purported visual identification evidence of PW3 Hamisi. As this Court had occasion to note in the case of Mengi Paulo Samweli Luhanga and Another V. Republic, Criminal Appeal No. 222 of 2006 (unreported), "eyewitnesses testimony can be a very powerful tool in determining a person's guilt or innocence." We II ! I 7 i \ were quoting the observation of Dr. Paul Michael, one of the world's renowned eyewitness identification experts. Il I' t I j! The Court also accepted and adopted .in the case Dr. Paul's finding to i' 1l the effect that eyewitness testimony: I I II " can also be dev4stating when false l' eyewitness identification is ma/:Je. False eyewitness .I . I . identification can occur because the witness is either 1 . I honestly confused or is deliberately dishonest i. \ Honest confusion on the pah of the eyewftness can occur because the visfon is imperfect and I 1' the eyes are infallible as i sensory organs. I have encountered eyewi/nesses that report 1: seeing the impossible... " (~mphasis is ours). I It is on the basis of these truths t.,~at case law has. developed these 1 I salutary principles of law:- (a) I Evidence of visual identification ls of the weakest character and I: most unreliable which should be /acted upon cautiously when the I 11 ~ "' 8 ! court is satisfied that the evidende is watertight ,and that all I' ! possibilities of mistaken identity ar~ eliminated (Waziri Amani I I V, Republic (1980) T.L.R 250 and Nhembo Ndalu V. l I' Republic, Criminal Appeal No. 33 of 2005 (unreported)); II (b) In a case depending for its determination essentially on ' I identification be of a single witness or more than one witness, . I I such evidence must be watertight, even if it is evidence II I of recognition (Hassan Junia I Kanenyera V. Republic !I, (1992) T. L. R. 100 and Mengi P S. Luhanga & Another V. 1 • ! Republic (supra)) and, ! I (c) In identification cases, witnesses must clearly state in their Ii evidence conditions favouring r a correct identification or i recognition of the accused (Raymond Francis V. Republic " I (1991) T.L.R. 100, Issa Mgara @Shuka V. Republic, Criminal I' I I . Appeal No. 37 of 2005, Math~w Stephen @Lawrence V. I ! Republic, Criminal Appeal No. 16 of 2007, James Kisabo @ I Ii Mirango & Another V. Repub.lic, Criminal Appeal No. 261 of I I 2006 (all unreported)). I 9 In the case of lames Kisabo @ Mirango (supra) this Court observed that "even in most favourable conditions there is no guarantee against untruthful evidence or mistaken identity." Since the above enumerated principles form part of our firmly settled law, the accuracy of PW3 Hamisi's evidence ought to have tested against these legal benchmarks. Did the learned 'trial judge discharge this duty? Having perused his judgment carefully, it is 'our respectful finding that he did not. Hence the joint criticism of the same, by counsel for both sides in this appeal. In so holding we are not saying that PW3 Hamisi was deliberately dishonest in his testimony. But given the surrounding circumstances, we firmly believe that he might have been honestly confused and mistaken. We shall venture to give a few reasons. First of all it was the evidence of PW1 Kichere, PW3 Hamisi and PW2 No. 4565 Det. S/Sgt Raymond, that the area where the offence was committed was covered with thick vegetation and grasses. PW2 5/Sgt Raymond was the police officer who investigated the case. PW3 Hamisi himself unequivocally told the trial High Court thus:- "The place is covered with thickets that is why I did not see accused before he hacked my father to death'~ This admission alone by the only eyewitness who was about 50 to 60 meters far off, in our respectfu'I opinion, reduces the finding of the learned trial judge that visibility of PW3 Hamisi could not have been impeded as "there was human activity in the area", to a figment of his own imagination. As both counsel rightly argued before us, there is no iota of evidence on . record to support this finding. PW3 Hamisi, then, who in 1997 was only 8 years old, ought to have given evidence to show how he was able to see and recognize the appellant as the murderer of his father from the position he was picking small pieces of charcoal in the midst of the dense thickets. Secondly, PW3 Hamisi did not allude at all in his evidence to the length of time he had the attacker under observation , so as to convince any reasonable person that he was not mistaken in his identification of the appellant as the murderer. A fleeting glance is not acceptable in law. 11 Thirdly, PW3 Hamisi did not state in his evidence the time of the day when the offence was committed and the state of the weather at the time. For this reason, we find and hold that the learned trial judge's bold finding that the murder was committed at "noon" when all "was bright" lacks a factual basis. It was meant to bolster the otherwise very weak prosecution case. Fourthly, both PW1 Kichere and PW3 Hamisi led evidence to establish that the deceased and the appellant were not the best of friends. PW3 Hamisi specifically said that the two were not friends at all. To demonstrate the existence of the bad blood between the two, PW3 Hamisi testified that sometime in the past the appellant had cut the deceased's cow's legs. This was followed by another incident whereby the appellant slashed the deceased with a machete. After the latter incident the appellant allegedly left the village, and many days passed. Indeed, as PW3 Hamisi put it, he never saw the appellant again anywhere until the fateful day of 21 st June, 1997. Is it possible then that these past events, if true, would have impacted on the mind of PW3 Hamisi so as to lead him to the belief that nobody else could have committed this brutal act on his father, but the appellant? We 12 could not rule out this possibility in the light of his shaky and inconclusive identification evidence. After all, some witnesses under the sun "report seeing the impossible" as we have already shown. All said and done, we are not a shade unsure that the purported visual identification evidence of PW3 Hamisi was absolutely watertight. In our respectful opinion, it left a lot of pertinent questions unanswered. His evidence, being that of a single identifying witness, it was prudent for the trial High Court to have looked for corroboration before proceeding to ground a conviction on it. As there was no clear evidence to show that the appellant had been living at the village immediately prior to the murder of the deceased and he fled thereafter, we have found no such corroborative evidence on record. It is, therefore, very possible that the appellant was in Muleba District when the murder of Magige s/o Nyango took place. After all, the prosecution never made any attempt to disprove his defence of alibi, notice of which he had given at the stage of the preliminary hearing on 9 th October, 2003, and his trial began on 27th April, 2007. In fine, we allow this appeal in its entirety. The conviction of appellant for the murder of Magige s/o Nyango and the death sentence meted on him I I '.1 I'' ,! 13 ""- are accordingly quashed and set aside. TTe appellant is to be released I forthwith from prison unless he is otherwise :lawfully held. I ,I I I ' I I ' I I nd DATED at Mwanza this 22 Day of September, I 2011. ,, E. M. K. RUTAKANGWA ' I, I JUSTICE OF APPEAL ' l i B. M. LUANDA i JUSTICE OF APPEAL r I I K. K. ORIYO I JUSTICE OF APPEAL ,, ,! I I certify that this is a true copy of the original. ,, ----~- I <:::: 5 ;;; ~ .I J. S. MGETTA I DEPUTY REGISTRAR COURT OF APPEAL ' I I I I I I I I I I l I 'I' I I ' I ,I I ' I I i