20110607 TZCA Dar es Salaam

1 IN THE COURT OFAPPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: MUNUO, J.A., NSEKELA, J.A. And KIMARO, J.A.) CRIMINAL APPEAL NO. 78 OF 2010 ~~:F'!."~~~~}............................................................................. APPELLANTS VERSUS THE REPUBLIC ...................-•••-;. ii .,.\.I\!....... ■ ••••••• ■■ ••• ■ •• ■ •••• ■ •• ■•· ••••••••••••••• ■ Il ••• RES PON DENT ' ·•."l;J.\ l•• , t . ' ~ i ' ,. {.:, (Appeal from the decision of the High Court of Tanzania at Dar es Salaam) (Aboud, J.) dated the 24 th day of October, 2008 in HC. Criminal Appeal No. 120 of 2007 JUDGMENT OF THE COURT 8April & 7 June, 2011 MUNUO, J.A.: .-~ .' ' Jafari Juma were convicted of armed The appellants, Y_usuf Akidarand ~, ft. \ ~J«~:t;.~ ·· ·· robbery c/ss 285 and 287 A of the Penal Code, Cap. 16. The prosecution alleged that on the 24 th January, 2007 at about 03.00 a.m at Chunguuni area in Bagamoyo District within Coast Region, the appellants jointly and together seized fish valued at Tsh 50,000/= the property of Hashim Akida and at the time of stealing cut him with a panga in order to obtain the fish. The learned trial magistrate sentenced the appellants to 30 years 2 imprisonment. Subsequently, the appellants lodged Criminal Appeal No. 120 of 2007 in the High Court of Tanzania at Dar es Salaam. However, the appeal was unsuccessful. Hence this second appeal to challenge the conviction and sentence. The complainant, ~ashim Akida testified as P.W.1. He stated that ,, - while asleep he heard noise as if somebody was stealing fish from his refrigerator. He opened the door and saw a suspect walking out with fish in a nylon bag. He then opened the outer door and saw the door leading to the refrigerator open and spotted another suspect pulling fish from his fridge. He closed the door and raised a thief alarm causing another suspect to close in and cut him with a panga, wounding the victim's three fingures. During the attack, the suspect P. W.1 had closed in the . refrigerator room, escaped. The complainant stated that the appellants were the robbers who stole fish from his fridge and later attacked him. He tendered his PF3 form, Exhibit Pl, to show that he suffered a cut wound on the skull and minor bruises on the right side of his hand and fingers, dangerous harm inflicted by a sharp weapon. 3 In this appeal, the appellants filed a joint memorandum of appeal - comprising eight grounds. In grounds 1, 2 and 4 of the appeal, the appellants challenged the identification evidence against them contending that they were not properly identified and that the identification evidence was incredible and weak so the learned judge should have allowed the appeal. In ground 5 of the appeal, the appellants faulted the trial magistrate for relying on the statement recorded by P.W.3 when no such statements were tendered at the trial. The appellants contended that in this case, there is no cogent evidence to sustain the conviction of armed robbery. The appeal they urged, ought to be allowed. The Respondent Republic was represented by Ms Dionisia Saiga, learned State Attorney. The learned State Attorney supported the conviction and sentence. She further observed that the learned judge was satisfied that the identification evidence was watertight in that the scene was lit with electric tube light. Furthermore, the learned State Attorney contended, the victim struggled with the appellants as they fought over the stolen fish so the said victim amply identified his assailants. It was the contention of the Republic that the complainant identified the appellants by 4 name thereby enabling the police to apprehend them. The learned State Attorney alleged that the complainant identified the bandits by name. She further observed that one of the appellants was locked in the room by the complainant but that the said suspects escaped when the other suspects attacked the complainant. The important issue is this appeal is whether or not the identification evidence on record is watertight. The learned judge dealt with issue of identification on page 5 and 6 of the typed judgment by stating, and we quote: "It is my view that the circumstances under which this case occurred falls squarely within the required factors to prove proper identification as was decided in the case of Waziri Amani v R (1980) TLR 250. There is no doubt that the trial court relied on prosecution evidence of visual identification after he satisfied himself that possibilities of mistaken identities are eliminated; because prosecution witnesses had time to observe the appellants, they were very close to 5 them as elaborated above, they knew the appellants before the robbery and there was electricity light in and outside the robbed house. Prosecution witnesses were certain that the appellants were the ones who robbed them and they immediately mentioned the appellants when he reported the incident to the police." The case of Waziri Amani cited above held that - (i) Evidence of visual identification is of the weakest kind and most unreliable. (ii) No court should act on evidence of visual identification unless all possibilities of mistaken identity are eliminated and the court is fully satisfied that the evidence before it is absolutely watertight. In Waziri Amani's case, the Court sustained the conviction on the correct identification of the appellant as the killer of the deceased. From the record of appeal, four witnesses testified for the prosecution in the matter before us. The complainant was the only e-ye 6 witness. He stated that he spotted a bandit going out of the room with a nylon bag containing fish, that he went out of his room and closed the burgled room with another suspect therein, that a bandit wounded him with a bush knife when he raised a thief alarm, that in the meantime, the suspect in the fridge room escaped and ran away. The complainant then stated and we quote: " ... The 1st accused is the person who earlier beat me with a blunt object. The 3rd accused is the person I had locked inside the house. The 2nd accused was not there." In cross-examination by the 1st accused, the complainant stated that there was tube light out there so there was no darknc,~;s. We are of the settled mind that apart from saying that the area was lit with an electric tube light, the complainant c.fr1 not say how he identified the appellants or whether he kn~w them by . Jme or whatever. P.W.2 Yassin Thabit stated that he saw the 3rd accused (now 2nd appellant) running/passing around the house on the matr·-:11 night but he did not see him carrying anything. 7 P.W.3 and P.W.4 are the police officers who visited the scene of crime on the material night upon receiving a report of the armed robbery. The police found a dead body, an iron bar and a bush knife near it. It appears the deceased was a victim of mob/instant justice by the people who responded to the thief alarm the complainant had raised. However; although P.W.3 E. 3987 DC Yohana proceeded to the hospital where he interviewed the complainant who had been wounded during the robbery, he did not state anything on whether the bandits had been identified or how the complainant identified the appellants. The .evidence of P.W.4 D. 2873 Detective Corporal Norad shows that the complainant implicated the appellants Jasu and Utunda. P.W.4 stated that the 1st appellant was apprehended at midnight on the 12/2/2007 upon information from informers. P.W.4 could not remember when the 2nd appellant was arrested save that he was implicated by an informer. The appellants opted to remain silent in defence. In the absence of concrete identification evidence excluding possibilities of mistaken identity, and considering that the victim of the armed robbery did not state how he identified the appellants walking out of 8 " the burgled store with fish they had stolen from his fridge, we are unable to hold that the suspects were properly identified. We are satisfied that the evidence against the appellant is weak and insufficient to sustain a conviction. Under the circumstances, we find merit in this appeal. We accordingly quash the conviction and set aside the sentence imposed on the appellants. We order that the appellants be released forthwith if they are not detained for other lawful cause. The appeal is hereby allowed. DATED at DAR ES SALAAM this 30 th day of May, 2011. /f' ,. E.N.MUNUO . '-~ ""~~JUSTICE OF APPEAL 'ti; - ,'!' /' I --,.. _ _ -,. , H. R. NSEKELA -, ·, • 1..STICE OF APPEAL ·,:_: ~~.I ' "; 1 i' / '._ . --· . ···1 -~ ,.,. ,./l" .Jls~iJE ~~1~~EAL I certifythattHr--·•"1s a true copy of the original. -------- -....... DE COURTO