20111115 TZCA Arusha

f l ,/ ,I I IN THE COURT OF APPEAU OF TANZANIA ATARusHl I ., 'I I CORAM: (RUTAKANGWA,l.A., LUANDA, J.A., And ORIYO,J.A.} CRIMINAL APPEAL N4. 11 OF 2009 CONSTANTINE MASUMBUKO KARARO @ MATESO ........................ APPELLANT . . VERSUS: : . THE REPUBLIC ......................................................................... RESPONDENT (Appeal from the Judgment of th~ High Court of Tinzania at Mosl,i) / rr (Rugazia, .lJ.) (Dated 11th NoveJber, 2008) DC. Criminal Appeal No. 68 of 2007 .I i JUDGMENT OF THE COURT 14™ & 18™ November, 2011 RUTAKANGWA,J.A,: I On 6th Fe~ruary, 2006, at about i :00 p.m., an Jidentified number of bandits struCl< at Kibosho Kirima Kati, in Moshi Distrct. These bandits were armed with a gun, a macheJ and clubs. Their targets were customers who were whiling away theiJ time at various groceries and bars I 1 At the trial of the appellant and his colleagues, PWl Joseph, PW2 Irene, PW3 Bonaventura and PW4 Pantaleo, led evidence on how the robberies were carried out. All of them, except PW4 Pantaleo who admitted not to have identified any bandit, testified that they had identified the appellant as he was very well known to them. Furthermore, they claimed ' that earlier on in the evening the appellant had thrice called at PWl Joseph's grocery before the bandits struck. The 1st and 2nd accused persons had no case to answer. While not disputing the armed robberies having taken place as explained by PWl - PW4, the appellant and the 4th accused dissociated themselves from the same. The appellant, in particular, told the trial court in his very brief evidence that on 6. 2. 2006 at the time when the robberies were being •. committed, he was at his home and not at the scene of the crime as alleged by the prosecution witnesses. All the same, while under cross- examination, he admitted to be a resident of Kibosho Kirima and that he was known to PWl Joseph and PW2 Irene. 3 I The trial court believed the evidence of the four prosecution I witnesses, (i.e. PW1-PW4). It accordingly found that four armed robberies I were committed on that night at Kibosho Kirima Kati. It also found it as a fact established by the evidence of PW1' Joseph, PW2 Irene and PW3 I Bonaventura that the appellant was one of the armed robbers, and I I proceeded to convict him as charged . in the I 1st, 2nd and 3rd counts. Since ,. I PW4 Pantaleo never identified any bandi~ at the scene of the crime, the I appellant was acquitted in the 4 th count. ,As for the 4th accused, the trial court found him not guilty in every count and acquitted him. The appellant I was sentenced to three concurrent terms of thirty years imprisonment. I I I I j Aggrieved by the convictions ,and sentences, the appellant unsuccessfully appealed to the High Court at Moshi. The learned first I appellate judge, while dismissing· the appeal, l rightly in our view, opined I . that the prosecution case rested squ~rely on the identification of the I appellant. He entertained no reservations on the truthfulness of the visual I identification evidence of PW1 Joseph, PW2 Irene and PW3 Bonaventura, I who hailed from the same village as the' appellant and knew him before the ! 4 ,I .I:. i incident. He concurred with the finding of the trial court that in the circumstances of this case the witnesses never made any mistake in their identification of the appellant. Dissatisfied with the decision of the High Court, the appellant preferred this appeal. The memorandum of the appeal list~ seven grounds of appeal in all. In short, his major grievances are: One, he was wrongly convicted on the basis of unreliable visual identification evidence as there was no sufficient light at the scene of the crime to facilitate a positive identification. Two, PW1 Joseph ought not to have been believed as his PF3 was tendered in evidence contrary to the requirements of s. 39 (b) of the Criminal Procedure Act, Cap. 20 (the Act) and he did not mention his name immediately after the incident. :Three, that after the prosecution had substituted a fresh charge after the holding of a preliminary hearing, no fresh preliminary hearing was held. Four, the prosecution case was flawed by contradictions in the evidence of PW1, PW2 and PW3. 5 The appellant appeared before us in person to prosecute his appeal. He tendered a written submission in elaboration of his grounds of appeal urging us to allow his appeal in its entirety. The respondent Republic was represented by Ms. Javelin Rugaihuruza, learned State Attorney. On her part, she supported the appeal for one principal reason. The visual identification evidence relied on by the two courts below, lacked cogency. In elaboration, she said that the three identifying witnesses made bare a~sertions that they recognized the appellant among the robbers because there was electricity light at the scene of the crimes. It was her contention that this evidence, unsupported by any details on the type of lamp which produced the light relied on and its intensity, was unsatisfactory and unconvincing. Ms Rugaihuzura also doubted the truthfulness of these assertions by PWl Joseph and PW2 Irene. While PWl Joseph testified that he recognized the appellant and he was putting on a black singlet, she said, PW2 Irene said that he was putting on a shirt. She found this to be a fundamental 6 •. contradiction going to affect their credibility. For these reasons, she pressed us to allow this appeal. We have carefully gone through the evidence on record and the judgments of the two courts below, while alive to the fact that this a second appeal. As already alluded to, the case against the appellant rested wholly on the purported visual identification evidence of PW1 - PW3. It is settled law that visual identification is of the weakest character and the courts should approach it with great caution. We have respectfully found out that the two courts below did not do so. They never subjected the evidence of the three identifying witnesses to any scrutiny. They never addressed themselves to the fact that although all these witnesses were together with PW4 Pantaleo and all of them knew the appellant, PW4 Pantaleo failed to recognize the appellant among the armed robbers. Had they done so, in our considered opinion, they would not have readily believed the bare assertions of PW1 - PW3. 7 'J t I, Ii 1, 11 l1 I! 11 !I 11 i: I It is trite law that in a situation whJe there was a~ invasion by a mob of armed bandits under unfavourJble circumstan~es, "positive evidence of the identification of the alckers" and oh "all aids to II i unmistaken identification," is necessary: /see, for instanc?, AYUBU S/0 ZAHARO v. R, Criminal Appeal No. 171 of 2004 and ~AID CHALLY SCANIA v. R, Criminal Appeal No. 69 of ZOOS (both unrepbrted). We shall 1 never tire, in the interests of justi~e, of sjying again and ~gain that "even honest witnesses often make mistakes in !e recognition o~ friends or close relatives" (SHAMIR JOHN v., ~ C+inal Appeal N~. 166 of 2004 (unreported)). For this reason, this Court in KULWA s/d MKWAJAPE & TWO OTHERS v. R., Criminal Appeal Nol 35 of 2005 (un~eported) held:- ' . .. the intensity and )umination of thJ lamp is important so tht a clear picturJ . . f ,.,,. . ' ,./.J . , ,. .,I,. ,.,,. 1s given o u ,e .conu1c.1on 1n w, ,1c,, u ,~ II appellant was identifieJ " : l I i I! I :1(, -:: ,, Ii' i i 8 I 11 Ii I I I I I! 11 I jl I There is no gainsaying here that although the appellant was known to the witnesses, the conditions under which the purported identification was made were not at all favourable to an unmistaken identification. The ~ attack took place at night. The bandits were armed with offensive weapons, which included a gun. The identifying witnesses had been taking liquor for a long time. Worse still, of the three witnesses who testified to have identified the appellant, it was only PW2 Irene who said, while being cross - examined by the appellant, that "there was electricity." It is only this piece of bare assertion, belatedly made as it was, which convinced the two courts below to hold that these three witnesses unmistakably identified the appellant among the robbers. The other two 1 witnesses never led any iota of evidence on what aided them to make an impeccable identification of the appellant. Their bare assertions, therefore, were wrongly acted on by the two courts below to ground the three convictions. That notwithstanding, we have found out that the credibility of PW2 Irene was dented by these two other factors which were not considered 9 ,. \ by the two courts below. One, PW2 Irene told the trial court that when the robberies were being committed she was inside the grocery. The appellant was not one of the bandits who entered the grocery, she testified. PW2 Irene further said that during the course of the robbery the appellant was ·'· hiding himself. Then how did she see him as he was not arrested at the scene of the crime?. Two, it is our considered opinion that if both PWl Joseph and PW2 Irene had seen the appellant at the scene of the crime simultaneously, they would not have contradicted each other on the type of clothes he was putting on. For the above reasons, we have found ourselves in full agreement with the appellant's and Ms. Rugaihuruz~'s contentions that the purported I visual identification evidence against appellant was not watertight. Either PWl, PW2 and PW3 were mistaken in their identification or they were not as honest in their evidence compared to PW4 Pantaleo who was vividly forthright. 10 • I' \! ' 11 I In fine, we allow this appeal in its e~tirety. The con~ictions of the 11 I appellant as well as the prison sentences Ii imposed on hi~ are hereby 11 1/ ' I I quashed and set aside. The appellant is to be released forthwith from 11 ,, prison unless he is otherwise lawfully held. 1; ~I 1i 1 I i 1 1 I DATED at ARUSHA this 15th day of 1ovember, 2011.i I . i I i i E. M. K. RUTAKA~GWA JUSTICE OF AP.PEAL I: I" I' B. M. LUANDA i I JUSTICE OF APPEAL i I i 11 i ,I K. K. ORIYp I I JUSTICE OF APPEAL ,I ') (; i I certify that this is a true copy of the oribinal. 'i 1, 11 ;' 1IMl Z.A.Wma ii DEPUTY REG,ISTRAR ,< I 1i ,I i ' i ;1 11 i f i 1, .\ I " i, I