20120914 TZCA Mwanza

1 IN THE COURT OF APPEAL OF TANZANIA ATMWANZA CRIMINAL APPEAL NO. 17 OF 2010 CORAM: BWANA, J.A.• MJASIRI,J.A. And MANDIA, l .. A. CHOKE RA MWITA ••• ■ •••••••• ■ •••• I •••• ■ ••••••••••• I ••••••••• I •••••••• I •••••••••••• I •••• APPELLANT VERSUS THE REPUBLIC •••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• RESPONDENTS (Appeal from the decision of the High Court of Tanzania at Mwanza) (Rwakibarira, J.) dated 13th day of March,2008 in Criminal Appeal No. 114 of 2005 JUDGMENT OF THE COURT 12th &. 17th Sept. 2012 BWANA, J.A: The appellant, Chokera Mwita, was charged with and convicted of the offence of Armed Robbery contrary to sections 285 and 286 of the Penal Code. He was sentenced to serve thirty (30) years imprisonment.· His first appeal before the High Court was unsuccessful, hence this second appeal. It was the prosecution case, supported by three witnesses, that on 28th June 2001 at about 1.00 hrs at Mahina East area of Mwanza city, 2 Chokera Mwita did steal a number of items, all valued at Tshs. 165,000/= the property of Masumbuko Maneno and that Chokera Mwita used a bush knife immediately before or after such stealing. In the course of stealing, he used the said bush knife to chop off two fingers of the right hand of .Abia Maneno and to cut the right shoulder of the said Masumbuko Maneno. The appellant denied to have committed the offence, claiming that the whole matter is fabricated. All the three prosecution witnesses, testified to the fact that on the material night while sleeping, the main door to their house was forced open by bandits. Masumbuko Maneno, PWl and Abia Maneno, PW3, at first fought back the bandits. As a result of the fight, the the two prosecution witnesses suffered the injuries referred to above. Examined at hospital, the said injuries were classified as grievous harm. According to PWl and PW3, they could identify the appellant due to hurricane lamp and torch light which were illuminating the areas inside the house. They could also identify him by voice as the appellant was said to be well known to PWl before the fateful night. He was one of the three 3 • bandits who forcefully entered the house and committed the offence with which the appellant was subsequently charged with and convicted. Before us, the appellant appeared in person, unrepresented, while the respondent Republic was represented by Bibiana Kileo, assisted by Victor Kalumuna, both learned State Attorneys. In this appeal the latter counsel argued the appeal on behalf of the respondent Republic. The appellant raised six grounds of appeal in his memorandum of appeal, touching on issues ranging from non compliance with . the provisions of section 231 of the Criminal Procedure Act, Cap. 20; unfavourable identification; non compliance with the provisions of section 240(3) of Cap 20 to contradictions in the prosecution case, contradictions that should be interpreted in favour of the appellant. The respondent Republic does not support the conviction and sentence meted against the appellant. Their decision not to support the conviction is based on what Mr. Kalumuna described as gross failure to comply with section 231 of Cap. 20, a provision that requires an accused 4 "'. person to be informed of his rights following the closure of the prosecution case. This was not done in this case, although eventually the appellant was affirmed and gave his defence. However, his right to call defence witness, if any, was not explained to him. This failure, according to Mr. Kalumuna, caused injustice to the appellant. Mr. Kalumuna further addressed us on the issue of identification-both visual and voice recognition. He was of the view that the said identifications were not adequate so as to remove all chances of mistaken identity. In so far as non compliance with section 240(3) of Cap 20 is concerned, Mr. Kalumuna suggested to the Court that since the appellant was not explained his rights under that provision and his reply recorded and since the medical doctor who prepared PF3 was not made available for cross examination, the said PF3 be expunged from the record. In his brief reply to Mr. Kalumuna's submission, the appellant requested the court to see to it that justice is done in this matter. 5 . In principle we agree with Mr. Kalumuna on certain aspects of his submission. We are in agreement with him for example on issues pertaining to the expunge of PF3 from the record. We however, differ with him on the implications of non compliance with section 231 of Cap 20. There is no proof on record suggesting that injustice was caused to the appellant as a result of that failure, on the part of the trial court, to inform him of his rights to give evidence in support of his case and to call witnesses. We note, however, that eventually the appellant was affirmed and gave his defence. We think that the trial magistrate should have explained to him the procedure involved. If the said magistrate failed to inform the appellant of his rights with regard to calling defence witnesses and have the appellant's position recorded, we hold that the failure is curable under section 388 of Cap 20 as such error, omission or irregularity in the proceedings had not occasioned a failure of justice. More basic however, is our view that this appeal may be determined by considering the issue of identification, both visual and vocal. It was the prosecution case that the appellant was known to PWl before this incident. It is also on record that the appellant was identified due to the harricane 6 • lamp and torch light that was illuminating the house at the material time. Further and in so far as it concerns the voice recognition, PW1 stated:- "one of them uttered the following words: LEO ULIKUWA UKIKA TALIA MASAMAKI YAKO, LEO UTANITAMBUA ... "(Emphasis added)". PW1 further stated that he could identify the appellant by the light ofthe "kerosene lamp." We examine firstly the evidence in support of visual identification. The following facts were relied upon by the trial court and upheld by the first appellate court. • That the appellant was identified with the help of the "kerosene lamp" and torch. • That PW1 knew the appellant before the incident but according to PW3, it was the first time to see the appellant. Did "kerosene lamp" and torch light provide sufficient illumination in the house during the robbery saga? We think there is no sufficient description of the intensity of the light. Torch light has been held by this court in several cases that: 7 •~ ..if this evidence is to be relied upon then serious doubts do arise... " (See: Gerald Lucas vs. The Republic, Criminal Appeal No. 220 of 2005 (unreported). In James Chilonji v The Republic, Criminal Appeal No. 101 of 2003 (unreported) the Court held:- ".. .if PW2s claim was that it was the flash light which enabled her to identify the appellant, that could not be so because a flash light (torch) enables the person using it to see the object or person lit on and not the other way around'~ We subscribe to those views. Therefore both PWl and PW3 could not reliably identify the appellant using the flash light. In so far as the lantern lamp is concerned, neither PWl nor PW3 spoke of the intensity of its light, thus leaving un attended the issue of likelihood of mistaken identity. In short, the law on visual identification is well settled. Before relying on it the court should not act on such evidence unless all possibilities of mistaken identity are eliminated and that the court is satisfied that the evidence before it is absolutely water tight (See: 8 Waziri Aman v. The Republic, (1980) TLR 250, Gerald Lucas v. Republic supra; Raymond Francis v. Republic (1994) TLR 100; Emmanuel Luka and Others v. Republic, Criminal Appeal No. 325 of 2010; Ramadhani Vincent v. Republic, Criminal Appeal No. 240 of 2009; Emmanuel Mdendemi v. Republic Criminal Appeal No. 16 of 2007- all unreported). In the instant case, there is no proof that evidence of PWl and PW2 was watertight, implicating the appellant given the fracas and the fact that the intensity of the light has not been established. We should also consider the issue of identification through voice recognition. PWl claims that he noted the voice of the appellant when he uttered to him some words, (supra). PWl further claims that he knew the appellant before the fatal day. Voice identification, as was stated by this Court in Stuart Erasto Yakobo v Republic, Criminal Appeal No. 202 of 2004 (unreported); 9 "... the issue is whether voice identification is reliable in law. In our considered opinion, voice identification is one of the weakest kind of evidence and great care and caution must be taken before acting on it .. there is always a possibility that a person may imitate another person's voice. For voice identification to be relied upon, it must be established that the witness is very familiar with the voice in question as being the same voice of a person at the scene of crime... " [Emphasis provided]. (See also: Badwin Komba @ Ballo v Republic, Criminal Appeal No. 56 of 2003, unreported; Kanganja Ally and Juma Ally v Republic (1980) TLR 270. In the case of Gerald Lucas (supra) this Court held that:- "Familiarity of an accused's voice has many dimensions. The accused may be related to the 10 witness as blood relative; may have lived or stayed together for quite some time and the like. This list of such possibilities is never limited. In the instant case, however we do not see anything to that effect that PW2 had previous long acquaintances with the appellant so as to enable the former recognize the latter's voice unmistakably and even to the exclusion of imitation... " [Emphasis provided]. We subscribe to the foregoing views. PWl's claim that the appellant talked about "LEO ULIKUWA UKIKATALIA MASAMAKI YAKO, LEO UTANITAMBUA," and that he has known him before, cannot, in our considered view, enable the witness to recognize the appellant's voice unmistakably and to the exclusion of imitation. We therefore hold that proof of both visual and voice identification was not watertight in this case. All the above considered, we allow this appeal. We quash the conviction by the trial court and as upheld by the first appellate court. The sentence of thirty (30) years imprisonment and twelve ( 12) strokes of the cane is set 11 _asipe. We order that the appeUant, Chokera Mwita, be set free forthwith · unless lawfully held. DATED at MWANZA this 14th day of September,2012. S.J. BWANA JUSTICE OF APPEAL S. MJASIRI JUSTICE OF APPEAL W.S. MANDIA JUSTICE OF APPEAL - ii I certify that this is a true copy of the original. .ti:. p pf!::-·•.:-:.. •. (t ' ~ ,. ----- < ' ··\ O' ~ \ ~.~ Z.A. A UMA . \ ~\ DEPUTY REGISTRAR /~l~i COURT OF APPEAL . __ / ,cl;~. ~.;.. ..~ :