20120521 TZCA Mwanza1

. -i \N«~~~ - ~·~ ~ l ~~ ,-r-- IN THE COURT OF APPEAL OF TANZANIA ATMWANZA , (CORAM: RUTAKANGWA, J.A., KILEO, J.A., And ORIYO, J'.A.) CRIMINAL APPEAL NO. 185 OF 2010 1. WILLIAM KITONGE@ MWITA } . 2. WILSON CHARLES ·. .. .................................. APPELLANTS 3. TUMAINI PAULO ., . VERSUS r---,. -. / THE REPUBLIC ....................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (Rwakibarila, J.) dated the 18th day of May, 2010 in HC Criminal Appeal No. 90 of 2009 JUDGMENT OF THE COURT l,7 & 21 May, 2012. RUTAKANGWA, J.A.: On ih May, 2008, at about 02.00 hours, Fatuma Salehe and her husband were awakened, as claimed, from their sleep by "a knock on the door of" their house. She switched on the light in their bedroom and . . proceeded to the living room. In the said room she came face to face with three strangers. She "was shocked", as she put it, and hastily returned to the.bedroom, from where she raised an alarm'. She was, however, ordered 2 to keep quiet by the intruders and she obeyed. In the meanwhile, their son Juma Mohamedi, who was in another room, raised an alarm even before knowing what was afoot. The three bandits, who were armed with pangas, demanded to be given money while at the same time assaulting Fatuma and Juma, hitting the latter with the flat side of the panga. None of the three occupants in the house, all the. same, sustained any bodily harm, be it visible or , invisible, as a result of the assaults. The bandits then made away with one_ T.V. set, two T.V. decoders, two Nokia Mobile phones and ·cash .Tshs. 65,0.00/- (as per the charge sheet). On 9th ~ay, 2008, Jl:Jma spotted the three appellants ·herein at a () I ·- - pombe club near the very house where the alleged armed robbery was committed. He went to inform his mother who in turn informed the police. Fatuma and Juma led one No. F 1628 Detective Hina to the said club and the latter arrested the appellants. No stolen property was found with them. The appellants were sent to Kirumba Police Station where they were detained in custody until 16th May, 2008 when they were formally charged 3 in court with committing the above stated robbery. That was after Fatuma and Juma had had their statements, concerning the alleged robbery, recorded by No. C 1490 Detective S/Sgt. Gaspare on 13 th May, 2008, that is six (6) clear days after the alleged robbery. The appellants denied the charge of armed robbery when read out to them. The prosecution called Fatuma, Juma, Det. Hina and D.S. Sgt Gaspare, who testified as PWl, PW2, PW3 and PW4 respectively, to prove the guilt of the appellants. The trial District Court of Nyamagana District on being satisfied that PWl Fatuma and PW2 Juma had unmistakenly identified the three . appellants at the scene of the_ crime convicted the appellants as· charged, CJ and sentenced them to. thirty (30) years imprisonment. Their appeal against conviction was dismissed by the High Court (Rwakibarila, J.) sitting at Mwanza. The learned first appellate judge was satisfied, like the trial Resident Magistrate, that a robbery was committed as alleged and the identification evidence of PWl Fatuma and PW2 Juma, upon which. the . conviction was predicated was impeccable. Hence . this second . appeal. 4 This being a second appeal we are, ordinarily, not free to interfere with the concurrent finding of fact of the two courts below on the issue of whether or not the appellants were unmistakenly identified as the robbers. We can justifiably do so if we are satisfi~d that that finding was perverse or was based on a clear misapprehension of the evidence on record or was arrived at in violation of a principle of law. The appellants, and indeed the respondent Republic are urging us to interfere because the two courts below misapprehended the quality of the entire prosecution evidence upon which their .conviction was based. This has been brought out clearly in the_ · submissions of counsel for both sides, before us, in elaboration of the sole ground of complaint against the decision of the High Court. , ). ( _j In this appeal, the appellants were represented by Mr. Salum Magongo, learned advocate. The respondent Republic was represented by Mr. Kennedy Edmund assisted by Mr. Hezron Mwasimba, learned State Attorneys. 5 As intimated above, Mr. Magongo came before us with only one ground of appeal. The same reads thus:- "That the evidence of identification is not watertight // Arguing briefly in elaboration of this ground of appeal, Mr. Magongo · began by asserting that the prosecution case against the appellants rested entirely on the purported visual identification evidence of PWl Fatuma and PW2 Juma. He then ·postulated the stance of the law on the issue as he understands it. It was his contention that in a case depending. entirely on visual identification evidence it is settled law that it is of the weakest character and the courts should not act on such evidence unless satisfied that all possibilities of mistaken identity are eliminated and the evidence is absolutely watertight: Having take_n us through the ·evidence of the -only · two identification witnesses, Mr. Magongo pressed us to hold that their evidence was highly unreliable. He was of this stance, because, assuming the robbery took place, the circumstances at the scene of the crime were not conducive for a favourable unmistaken identification of the bandits. 6 Mr. Magongo was of that view because the robbery allegedly took place. in the dead of the night when the two witnesses had already fallen asleep; the bandits physically attacked the two witnesses; PWl Fatuma confessed to have been in total confusion; the evidence on the source of light at the scene of the crime which was almost put out immediately once the bandits had entered the bedroom was not elaborately explained; nor was the intensity of the said light described at all. Furthermore, he argued, the encounter was a brief one and so the confu·sed witnesses had . · no sufficient time to study their assailants. On all this Mr. Magongo was supported by Mr .. Mwasimba. Accordingly, the two learned counsel urged· us to accord little weight to this evidence. fn his focused submission, Mr. Magongo went further to discredit the () two identifying witnesses. He was of the firm view, which was supported by Mr. Mwasimba, that the evidence of those two witnesses smacks of a fabrication. He gave us four reasons for so believing. One, it is unimaginable that the two witnesses would have been so physically attacked with pangas and yet emerge from the ordeal unscathed, that is . without even a _contusion. Two, it is inconceivable that the robbery could .. 7 have·taken place in the presence of the husband of PWl Fatuma and yet firstly, he remained oblivious of what was happening to the members of his family, and secondly, did not even testify in support of the charge. Three, since the robbery took place in a popul_ated area, and the two witnesses raised alarms separately, it is hard to believe that the neighbours would have failed to respond and/or to volunteer to testify in court to prove the i •: ' ' alleged incident to have occurred. Four, since the two witnesses claimed to nave been seeing the appellants often in the same area, they would not have failed to name them and/or to give their descriptions to the police so as to facilitate their early arrest. For these reasons, the two counsel have urged, us to .hold that the robbery was not proved beyond a reasonable · doubt. () We have carefully gone through the evidence and the judgments of the two courts below. We must confess more in sorrow than in fear of · dismaying anybody that we have .found out that both the trial Resident Magistrate and the learned first appellate judge did not address themselves to these salient points which go to render their account of the alleged robbery highly improbable, and su_spect. 8 ,;~~tfJJtkil:llt!)}j}lr;rtlr/i&}1&enfifiilJfiel/!,~i)vti~1/sf}ij/fjf{fjfjfi;fj,'/ :ft~Wlfiifl.Jj"fH!@llitjlfliXll&,WtldJJiif!{}m'.f/fl&l!~~~~iiilf~~~at~'· ,·\::it/i§"lJtllftJaFli!liffe.'f§H.t_![tia1lJ?i/imp@iftafflil§il{JJi!:Jff/'$di/oJJPJlf.fr J~ _','.,~~.- jlY_;.:,f_~~;-.'\-;;;:._.;.s:.~.,.,_,_,,,,.,~, ...... ,...,~~- .,._.,~-~-\. z ~-:•.,.,.,· .4','·••ll"..:'Y, ;~j """'t .......-.. -._ • . ~'"~( ·· witneis.~. -:-~r:ir~v~-~i\~~i'!!~~,~"·~~;-:""~<l' S<£,i]!l/;t&/Jlifitifn'elitlellfi~~~~nititfiliff/t7fifiatifirX~itkiJifj/tJ''f!!Y i~~~~-';'-~-i•~"'~·--.-··· --~ •,-..'?I.~~-'"""'[\•.~-.,,·~--:~,::...,.,, ,f~ ~"-:~ .. -~.--,;-.-, r ..- • <h • • ;, • '. ,., i~ii~ll!RllliiititiL,~~/.{;,kiJk,if;{lt~tttfitft!!f/!li}{{flllJY/ittfftee"fi;faga'ff;j§~ ., .dftiwi1£ffi1iJJll!f.Ql!f~;i.i.ifl,llilfllifiJ1JPtt} ,[Emphasis is ours]. I 9 In our considered opinion, any objective consideration of the four points listed above, would lead one to only one reasonable inference. This is that the alleged armed robbery was a figment of the two eyewitnesses' own imagination. Otherwise we fail to understand why the neighbours failed to respond to the alarms allegedly raised when there is no claim that firearms, which would have kept the neighbours away, were used. PWl Fatuma had the temerity of telling the trial court on cross-examination from the 1st appellant that their ·"neighbour came in the morning." However, she did not disclose the identity of this neighbour, nor did the prosecution find him/her essential for their .case in order to show that a robbery took place as alleged. Of course it will be gilding the lilly or over egging the. pudding by trying to over-emphasize the importance of the evidence of the husband of PWl Fatuma. Going by the evidence of two identifying witnesses, h witnessed the .entire incident. Not only. that. According to PWl Fatuma the robbers also stole her husband's brief case and jacket, which are no, listed in the charge sheet, and mocked him saying:- I 10 ''huyu jamaa huwa anajifanya ana he/a kumbe hana he/a.// This being a criminal case we have found ourselves in fult agreement with the contentions of both counsel in this appeal that the husband of PWl Fatuma was an essential prosecution witness in proving the alleged robbery and the identity of the robbers. That he and the neighbours were not called for unexplained reasons, necessarily leads us to only one irresistible inference. It is that if they had been called as witnesses, they most likely would. have belied the two witnesses on both issues. - See, for, instance:- (a) Joina Siwakwi v. R., Criminal Appeal No. 5 of 1998, . (b) Festo Mawata v. R., Criminal Appeal No. 299 of 2007, and (c) Gallus F. Stanislaus@ Wasiwasi & Another v. R., Criminal Appe_al _No. 231 of 2007 (all un_reported) .. In her evidence, PWl Fatuma testified that the pombe club where the appellants were found, whiling away time, two days after the alleged I 11 robbery, was not "far from" their home. Given the claim that the appellants were known to the two witnesses prior to the alleged incident and going by the evidence on record the bandits had not taken any precaution to adisguise themselves and hide their identities, it would have been foolhardy for them to openly return to the neighbourhood of the scene of the crime after such a relatively short interval. This fact also, in our ·respectful opinion, renders the story of PW1 Fatuma and PW2 Juma highly implausible. May be· that was why they never gave any statement to the police until· four days aftet the arrest of the appellants and nine days after the alleged incident. That again was not only a serious omission, but a discrediting one: See, Mulangaluliye Augustino v. R., Criminal Appeal No. 318 of 2010 (unreported). In view of the above findings and inferences, we have found ourselves constrained to hold that on - the sketchy and highly suspect evidence on record; for even the ·investigatQrS. never visited the scene of the alleged crime, the prosecution abysmally ·failed to prove beyond reasonable doubt that any offence, leave alone the alleged armed robbery, · was committed by the appellants _or any other person, at the home of PW1 I 12 Faturria. In our respectful view, had the two courts below dispassionately evaluated the entire evidence, they would not have convicted the appellants. ,'.iJ~.9?!J9:i~9.~,!Q.~./t,~~!l~*9!~vJ.b~~;JJ;D.PJ!~D~9,:.~Yl,~~.~J\clq~[!tification.:evidenc~ we ... ,thin~ it:9ught n6t.,,to,d~tain'.~us:now: ,·That;evidence-p(oming4r6rrft'.PWI --:, ~ Fatuma .and:J?W2-- .Jumqir-;-~O-~!ffi!iJi9iP&i&~l~i2~Mi~~Jgij~J'.~iit11~ti~~$: ,;~l:L~9~¥c,:~>~nJ90.str~!~g;:_1,~.~Y-:~,s~~~s.:.~ith~.IJg)yr~ir:ig .doubts .in.our~niit1_oihthatfrt J}J.~: J?.?;lte.n_tly~ !~c-~J.Q9:-!PJf;99~Df:-Y, &Jt1i.~¥.ot1YZfinlHng;l~lier~fp_fe}~tliaNeye,ri}iff;tme'._4f : , o.t(~n£g,:,,pf:.~_r_rnEtotroboe,\y~nad~been~prcivedj{,we \~ou1diri0Ffiave\Ja1ledfMt :.,. .;_IJC?l~q:,;;m.~.~\)t\~.P]:{J28L:H[9Yl:9iJb~J9Jl}~gppp_¢lla:nts0,:had~been~,::impeGca111Jf' ..,.... ..,_ . . . _t,_:~. ,J!:1~:Pl!fi,~911-S..S!l~.1,~2RP~r~,($1;QS~i:,g1j9.:evid.erite.;;~asfnqt,tqQSOlut~IY,,.\iYgt~.rtjgh!11' . . . ·. . . . (J -1 All said and done, we allow this appeal in its entirety. The conviction of the appellants is hereby quashed and set aside as well· as the imposed sentence of thirty years imprisonment. The appellants are to be released forthwith from prison, unless they are otherwise lawfully held. I 13 DATED at MWANZA this 21 st day of May, 2012. E.M.K. RUTAKANGWA JUSTICE OF APPEAL E.A. KILEO JUSTICE OF APPEAL K.K. ORIYO JUSTICE OF APPEAL I certify that this is a true copy of the original. E. Y. MKWIZU DEPUTY REGISTRAR