20111112 TZCA Arusha3

IN THE COURT OF APPEAL OF TANZANIA ATARUSHA (CORAM: RUTAKANGWA. J.A., LUANDA, J.A., And ORIYO, J.A. CRIMINAL APPEAL NO. 4 OF 2009 WENSLEY ROBERT URASSA ........................................................ APPELLANT VERSUS THE REPUBLIC. ■ •••••••• ■ ••••••••••••••••• ■ ••••••••• ■■ ••••••••••••••••••••••••• • RES PON DENT I ••••••• I (Appeal from the Judgment of the High Court of Tanzania at Moshi) (Rugazia, J.) Dated the 14th day of November, 2008 in DC. Criminal Appeal No. 134 of 2004 JUDGMENT OF THE COURT I 11TH & 15TH NOVEMBER, 2011 RUTAKANGWA, J.A.: I The appellant was convicted by the District Court of Hai District of the offence of Attempted Robbery c/s 287 of the Penal Code. He was I sentenced to a prison term of thirty (30) years. He was also ordered to pay compensation of Tshs. 100,000/=. His first appeal to the High Court sitting at Moshi, was unsuccessful. Hence this second appeal. 1 I The facts establishing the offence of attempted robbery have never been disputed. The dispute all along has been the identities of the attempted robbers. In a nutshell, the prosecution case was as follows: on 18th May 2002 I at around 9.00 p.m. while PWl Apaukundi d/o Anshansen and her cousin, I PW2 Peter Rodence were relaxing in the living room of their residence at Lyamungo Kati village, about six (6) b~ndits invaded them. The bandits 1 were armed with guns, machetes and "simes". They went straight to PWl ' Apaukundi demanding to be given money. PWl Apaukundi told them that she had no money. This answer made her incur the bandits' wrath. They I began to physically assault her by hitting her with a gun butt. In the course of the assault, the gun accident911y went off. An alarm was raised. The bandits hurriedly left the scene of the crime without stealing anything. Both witnesses testified that they recognized only two bandits, who I were mentioned to the people who responded to the alarm one of them I being PW3 Hussein Selemani. The two, they claimed, were the appellant and one Allen, and both were their neighbours. They were borne out on 2 this by PW3 Selemani. The appellant was subsequently arrested and . t '! charged accordingly. The appellant denied the charge. He told the trial District court that he could not have committed the offence, as alleged, because on that day he was in Dar es Salaam. He returned to Machame onI 29/05/2002 only to be arrested on 31/05/2002. He, all the same, conceded that he was well I known to the prosecution witnesses as they were neighbours. !. The trial District Court convicted the appellant .on the basis of the I purported visual identification evidence of these two· witnesses, which it found to be watertight. The first learned appellate judge was of the same view and accordingly dismissed the appellant's appeal. Hence this appeal. In his memorandum of appeal to this Court, the I appellant has listed seven grounds of appeal, four of which are interrelated. In these four I interrelated grounds, the appellant is chqllenging the cogency of the visual I identification evidence upon which his conviction was grounded. He is claiming that the same was not watertight. 3 The respondent Republic which was represented by Ms. Javelin Rugaihuruza, learned State Attorney, supported the appeal. In her well focused brief submission she argued that from the evidence on record, it could not be safely held that the two identifying witnesses unmistakenly ' recognized the appellant among the! bandits. She so reasoned because I I PW1 Apaukundi, made bare assertions that she recognized the appellant among the bandits without making any attempt to explain what enabled her to do so. She also challenged the correctness of the evidence of PW2 1 Peter. To her, as he (PW2) was-'' lying ~:m the floor face downwards, he I could not have easily seen and identifi~d the appellant. To augment her argument, Ms. Rugaihuruza pointed out one telling contradiction in the evidence. While PW1 Apaukundi claimed that she I clearly saw the appellant who was armed with a gun, PW2 Peter also I claimed to have made an unmistaken identification of the appellant who was armed with a knife. It was her strong contention that if these two witnesses had actually seen the a'ppellaAt at the scene of the crime, they ' would have been of one accord on the type of weapon the appellant was 4 carrying as they were together all the time. She accordingly urged us to allow the appeal. Admittedly, the case against the appellant rested entirely on the visual identification evidence of PW1 Apaukundi and PW2 Peter. The law on this type of evidence is well settled. It is to the effect that it is of the ! i weakest character and the courts should only act on iti when fully satisfied ! that it is absolutely watertight. See, for instance, WAZIRI AMANI v.R. [1980] T.L.R. 250, SAID CHALLY SCANIA v.R., Criminal Appeal No. 69 ' of 2005, ISSA MGARA @ SHUKA v.R., Criminal Appeal No. 37 of 2005 and JARIBU ABDALLA v.R., Crimina:I Appeal No. 220 of 1994, (all unreported). In SAID C. SCANIA (supra), this Court unequivocally stated that where a witness is testifying about another in unfavou~able circumstances, I I clear evidence mentioning all aids· to unmistaken id~ntification, like the I ii source of light and its intensity, must be given. This was repeated in ISSA I - MGARA's case (supra) which extended this requirement to recognition ,, ' cases, as was the case here. 5 ·l As correctly submitted by Ms. lugaihuruza, the evidence of PWl Apaukundi, containing bare assertiot, was patentl~I very weak. The , I . offence having been committed a.t night, one would h,ve expected her to I: } I mention all aids which enabled her to make an unmistaken identification of I . , I.: II the appellant. She did not do so. S:he even failed [in her evidence to ' I I : I mention if there was any light from ,Jhatever source Iat the scene of the '1 , :1 I : !• ! crime. It is our considered holding, therefore, that th~ two courts below I I l' erred in law and on the facts in giving ~ny weight to her evidence. 11 • r I ! ; i . !I I ii The evidence of PW2 Peter was ~qually unconvin~ing. He, too, in his evidence in chief, cross-examination ahq , : .. re-examinatiJn I never mentioned .: . I the aids to his alleged unmistaken identification of the appellant. It was : I only while answering a question put to;!him by the trial hiagistrate when he claimed that "there was bright electricity." To us, this smacks of an afterthought. ' ,,j There is another factor which yvas never considered by the two courts below, which rendered PW2 PJter's evidence Jighly suspect. This ! I ·/, '' ' i i 6 t I ! I I' . 1 '; ! I I I . I .'. was the implausibility of his evidence.} As correctly plointed out by Ms. Rugaihuruza, it is inconceivable that I ~e ' • could have seen the applicant, ~ 1 while he was lying on t he· fl oor ,ace dpyvnwar Ii ds. we areI vm . d",cat ed on th",s J, . II by. his own further evidence, as we shali show. . i ~ : 1• . ' While being cross-examined, ·he h~d said:- . .. ·i I': ''PWl complained that she was being beaten by the gun butt. I could nJ . ·' see because ~ was lying, face down." : I I (Emphasis 111 ours.) :i . ; . I ! Responding to the trial court's question) he said:- ''/ did not. see the. rest be'cau.'$e;_ I was lying facel down. ,, : 1 · If he could not see the other bandits J:because he was thus lying on the floor, we have found it difficult to ~urchase his sJory that he was, nevertheless, able to see ttie appellan~. :He was, in our lonsidered opinion, lying. 7 l. i .:\ I That both witnesses might hav~ been lying in their evidence is confirmed by the irreconcilable contradiction pointed out by Ms. i Rugaihuruza. It is totally impossible, as she rightly argued, that PWl Apaukundi could have seen the appellant armed with a gun while PW2 Peter saw him armed with a knife and/or a "sime" at the same time. That ' is why this Court held in JARIBU ABDALLA (supra) that it is not enough to look merely for factors favouring an accurate identification, while I ignoring the issue of credibility of the' witnesses. The Court significantly pointed out therein, that:- "... the condition of identification might appear I ideal, but that is no guarantee against untruthful evidence. " The facts of this case fall within the ambits of this warning. " To sum up, we say and hold that the conviction of the appellant was predicated on the patently very weak, unreliable and seemingly untruthful visual identification evidence of PWl :Apaukundi and PW2 Peter. This conviction, therefore, cannot be safely upheld. We accordingly allow this appeal in its entirety as urged by the appellant and Ms,: Rugaihuruza. The 8 appellant's conviction is hereby quashed and set asi~e as well as the sentences imposed on him. The appellant is to be released forthwith from prison unless he is otherwise lawfully held. i th DATED at ARUSHA this 12 day of November, 2011. E. M. K. RUTAKANGWA JUSTICE 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. ~ Z. A. Maruma DEPUTY REGISTRAR 9