20110923 TZCA Mwanza

1 IN THE COURT OF APPEAL OF TANZANIA ATMWANZA I (CORAM: RUTAKANGWA, J.A., LUAINDA, J.A., And ORIYO, J.A.) CRIMINAL APPEAL NO. 63 OF 2006 I · ST KASUKU . ALLY ........................................................................ ' . 1ND APPELLANT . PAULO MATHIAS ................................................................. 2 APPELLANT VERSUS THE REPUBLIC ..................................1••••••••••••••••••••••••••••••••••••••••• RESPONDENT (Appeal from the ludgme~t of the High Court of Tanzania at Mwanza) I {Rweyemamu, J.) Dated the 07th day of October, 2005 I ' ' 1ln CR. Appeal Nos. 75 & 76 of 2005 JUDGMENT OF THE COURT 22 & 26 September, 2011 RUTAKANGWA, l.A: The two appellants, Kasuku Ally (1 st appellant) and Paulo Mathias (2 nd I appellant) were convicted as charged by the District Court of Bunda District I (the trial court), of the offence of. ~obbery with violence. They were sentenced to serve a term of imprisonment of fifteen years plus twelve I 2 i strokes of the cane each. Their appeals against the conviction and sentences were dismissed by the High Court sitting at Mwanza. Still protesting their innocence, they have lodged this appeal. The crucial evidence leading to their conviction was brief. It came primarily from PW3 Helena Manyama, the wife of PW1 Baraka Shija. PW1 Baraka had two wives. PW3 Helena was his second wife. Both wives were living separately at different villages.; On 29th September, 2001, PW1 Baraka spent the night at the house of his senior wife. PW3 Helena was to spend that night with her young children only. However, at around 04.00 a.m., she heard a knock at their house's door. Thinking it was her husband, she got out of bed and went to open the door. On opening the door, she met people, other than PW1 Baraka, who had a torch and a stick. Without much ado they demanded money from her while assaulting her with the stick. Fearful that she would be killed, she gave them Tshs. 220,000/=. After receiving the money, the bandits left. She 3 then raised an alarm. Among the people who responded to the alarm was PW4 Joseph Nyamhanga. According to PW4 Joseph, PW3 Helena recounted to them what had befell her without mentioning the name of any suspect. Later in the morning she mentioned the two appellants and two others who were not arrested, as the people who had robbed her of their Tshs. 220,000/=. The appellants were subsequently arrested and charged accordingly. Defending himself against the charge, the 1st appellant denied complicity in the robbery. He told the trial court that he was arrested at their ' home, together with the 2nd appellant, on the morning of 30th September, 2001 by people who included PW4 Joseph, because he had not responded to the alarm the previous night. They were subsequently sent to Bunda Police Station from where they were taken to court to answer the charge of robbery. The 2nd appellant gave an almost identical explanation. ' j 4 In a judgment which is glaringly lacking in analysis, the trial District Magistrate readily found the two appellants guilty as charged, because: "... PWJ identified the accused through the light which were (sic) on inside her house on the material day of the incident'~ He found corroboration for the identification evidence of PW3 Helena in the evidence of PW4 Joseph. The learned first appellate judge found the conviction of the appellants unassailable. This was because in her view, the identification evidence of PW3 Helena was watertight as she k_new the appellants before and "she named them on first opportunity". The appellants have lodged a joint memorandum of appeal listing five grounds of complaint against the decisions of the two courts below. The crux of their complaints, however, is that they were improperly convicted on the I 5 basis of insufficient visual identification evidence which was predicated on mere suspicions. When the appeal came up for hearing, the appellants appeared in person and were unrepresented. They had nothing to say in elaboration of their grounds of appeal. The respondent Republic, which did not support the conviction of the appellants, was represented by Mr. Patience Ntwina, learned Principal State Attorney. In his brief but focused submission, Mr. Ntwina urged us to quash the conviction of the appellants. He was of the firm view that the visual identification evidence of PW3 Helena, the only eyewitness to early morning robbery, lacked cogency and could not, therefore, be said to have been watertight. He pointed out that although the appellants lived in the neighborhoods of the scene of the crime and were known to PW3 Helena, she failed to give clear evidence on what aided her to impeccably recognize them as the bandits. He also pointed dut that her evidence on whether she \ 6 mentioned the names of the bandits, was fundamentally contradicted by PW4 Joseph. I That a robbery took place at the home of PWl Baraka and PW3 Helena I I in the early hours of 30th September, 2001, has never been disputed by the I appellants. The issue all along ha~I always been the identity of the robbers. I While PW3 Helena claimed in the trial court that the two appellants were the I I ones who robbed her of their Tshs. 220,000/=, the appellants have I I persistently claimed that they were\ peacefully sleeping at their home when I the robbery was being committed ~nd they were not arrested until late in I I I th the morning of 30 September, 2001. The strength or weakness of this I ' appeal, therefore, depends entirely 6n the cogency/sufficiency or otherwise \ of the visual identification evidence orW3 Helena. I It is trite law that visual identification I evidence is of the weakest I character and more often than not most unreliable. Courts should always I I approach it with utmost caution and $hould refrain from acting on it unless I • I satisfied that it is absolutely watertight: see, Waziri Amani V. Republic I \ 7 \ I [1980] T. L. R. 250. Although ev1.dence of recognition may be more reliable I I than identification of a stranger, courts should always remain alive to the fact I I that mistakes in recognition even\ of close relatives or friends often occur: I I see, for instance, Shamir John y. Republic, Criminal Appeal No. 166 of I I 2004 (unreported). Therefore, eveh recognition evidence must be watertight I too. There is no doubt that PW3 Helena's I I I visual identification was that of recognition. In deciding this appe~I, therefore, we have to resolve this I I pertinent question, which as Mr. Nt\yina rightly pointed out, received scanty I attention from the first appellate \judge: , Was PW3 Helena's evidence watertight? \ \ In dismissing the appellant's appeal, the , learned first appellate judge held:- ' I " Supporting the conviction, Mr. Kahangwa State \ Attorney for the respondent submitted that PW3s I 1 I evidence of identification was watertight, as it was I I sufficiently detailed; lighting was adequate; the I I 8 identifying witness knew the appellants before, and she named them on first opportunity. I agree with him. Further, there was no dispute that PWJ and the appellants were neighbors, there was no explanation whatsoever, why the witness would wish to falsely implicate the appellants. " We take it to be common knowledge that in cases of this nature, it is always the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt. This is a mandatory statutory requirement. While motive may be a factor to be considered in determining the credibility of a witness, we are of the settled view that the appellants here had no duty to lead evidence to show that PW3 Helena had a known reason to falsely accuse them. While few such motives are sometimes obvious, most of them are always latent. Furthermore, the undisputed fact that the appellants and PW3 Helena were neighbours was no guarantee against untruthful evidence or mistaken identity on the part of PW3 Helena. On this we are born out by the evidence of PW4 Joseph. I \ .. I PW3 Helena testified that after the robbers had left, she raised an I 9 I alarm and many people responded. She also claimed in her evidence that I I i she told these people that she had', recognized the appellants as the robbers. I This piece of crucial evidence was discredited by PW4 Joseph, who was the I I only person out of the many who iresponded to the alarm, who testified at I I the trial of the appellants. He said:-: I "... on my arrival I fouhd many people were there I already responded to it ~nd the said mama (i.e PWJ) was also there. She. told me that she was invaded but did not mention the bandits. My co- 1 alarm men told me that, he was suspecting the two young men from Mzee All½ whom she saw one day I ' before putting on coats. "(Emphasis is ours). I I I The prosecution did not tender any evidence to contradict PW4 Joseph. I I The two courts below, unfortunately, never alluded to this evidence which 1 I rendered the purported visual identification evidence of PW3 Helena highly improbable. We are using the word "improbable" deliberately. This is I I \ I \ \ I because if she had seen and unmistakably . ' recognized the two appellants as ' the robbers, she would not have failed to name them to PW4 Joseph and his colleagues. The evidence PW4 Joseph is given credence by the fact that the appellants were arrested at their home much later after the robbery although they were neighbours of PW3 Helena. \ From the above discussion it'. is clear that PW3 Helena was absolutely ' not certain of the identity of the robbers. Her visual identication evidence, therefore, cannot, by any stretch ,of imagination, be said to have been absolutely watertight. We find further support for this conclusion from one I other germane fact. Although the learned first appellate judge held that I there was "adequate lighting" at the· scene of the crime, we have found no I 1 evidence on record to bear her out. I I I 1 I PW3 Helena told the trial court that upon entering the house the I I I bandits immediately put off the light which was on in the house. She went on to say that the bandits only used torchlight when counting the money. I She never said that it was this light: which enabled her to recognize the I Il \ \ I I I I \ I 11 appellants. All the same that light was used while counting the money. Naturally it could not have been directed at the faces of the bandits. This notwithstanding her evidence is silent not only on the source of the light in the house before it was put off but also on its intensity and of that from the torch. This Court has persistently, held that "where a witness is testifying about identifying another person in unfavourable circumstances, like during the night, he must give clear evidence which leaves no doubt that the identification is correct and reliable". Mere assertions that there was light will not suffice: see, for instance, Said Chaly Scania V. Republic, Criminal Appeal No. 69 of 2005 (unreported).· In the light of the above, we are satisfied that the identification evidence of PW3 Helena was sufficiently wanting in cogency. The two courts below, in our respectful judgment, erred in law in grounding a conviction on it. We are, therefore, constrained to allow this appeal as urged by the appellants and respondent Republic, in its entirety. We accordingly quash and set aside the conviction of the appellants and the sentences imposed on 12 them. We order that the appeUants be immediately released from prison unless they are otherwise lawfully held. DATED at Mwanza this 23 rd day of September, 2011. E. M. K. RUTAKANGWA JUSTIC:E OF APPEAL B. M. LUANDA JUSTICE OF APPEAL K. K. ORIYO JUSTICE OF APPEAL ~., I certify that this is a true copy of the original. J. S. MGETTA DEPUTY REGISTRAR COURT OF APPEAL