nicholaus pangawe lukinga vs the republic 2012 tzhc 51 11 july 2012

IN THE HIGH COURT OF TANZANIA AT IRINGA DC CRIMINAL APPEAL NO. 16 OF 2010 ORIGINATING FROM IRINGA DISTRICT COURT CRIMINAL CASE NO. 643/2008 NICHOLAUS PANGAWE LUKINGA........ APPELANT VERSUS THE REPUBLIC.................................. RESPONDENT JUDGMENT MKUYE. J Mr. Matitu learned State Attorney has supported the appeal lodged by the appellant Nicholaus Pangawe Lukinga who was initially before the District Court of Iringa at Iringa charged and convicted with the offence of the armed robbery contrary to section 285 and 287 of the Penal Code Cap 16 R.E. 2002 sentenced to imprisonment for 30 years. The facts leading to this appeal are that on 12/11/2008 at about 03.00 one Mkimbi s/o Mimbi was invaded in his house. The event led to bloodshed as in the course of invasion, the assailants demanded money from PW1 and his wife Yusepha Mloli (PW2), but they resisted. The robbers/assailants reacted by punishing and injuring them and the fracas ended in occasioning l death of a two months old child, the daughter of PW1. The robberers/assailants* also took away shs. .400,000/=. The appellant during trial denied to have committed the offence. The appellant fronted six (6) grounds of appeal which are one, that the prosecution failed to prove the offence against appellant beyond reasonable doubt; two the identification of the appellant was done in unfavourable conditions; three, the appellant was arrested at a place about 60 km from the scene of crime. Four, the trial magistrate erred in believing that the red colour in his clothes was human blood in the absence of expert proof. Five, the appellant was convicted on the weakness of defence; Six, the appellant was convicted on suspicion that he wore shoes with footmarks seen at the complaints' residence. When the appeal came up for hearing the appellant who was unrepresented opted to hear first from the respondent Republic with a view of responding if he objected the appeal. The Republic was represented by Mr. Matitu, learned state attorney. Arguing the appeal, the learned state attorney for the respondent Republic contented that the offence was committed at night and PW1 and PW2 who were invaded did not identify the assailants. The appellant was convicted on the basis of circumstantial evidence of PW3 Mussa Hassan Degala and PW6 Langi Hamis whose evidence he submitted cannot prove the offence against the appellant because of glaring doubts which are to be resolved in favour of the appellant. The learned counsel, went further to point out the doubts such as one, that the appellant was not arrested at the scene of crime; two, PW3's evidence that they followed up footmarks while riding bicycles did not show the nature of land whether it was wet or dry. Three, the footmarks went towards the bush but it was not shown as to how he saw the footsteps on the grass. Four, since many people responded to the alarm raised, it is not known as to how he (they) differentiated the footmarks with those of other people. Five, PW3 and PW6 contradicted themselves on the contents found in the bag which was found in possession of the appellant. Where as PW3 said he saw blood stained clothes, PW6 said he saw spanners and clothes without mentioning blood stains. Six, that the alleged stained clothes were not tendered in court. Neither were they taken to be analysed scientifically to determine whose blood was it. Seven, much as it was said the appellant admitted to commit the offence but his caution statement was not tendered in court. But I think it may not be insignificant to point out here that I was unable to see in the court record where this point was grounded. I am of this opinion because PW5 WP 1392 D/Sgt Evona, in her testimony said- when she interrogated the accused persons they all denied to have committed the offence or to have taken cover in the forest. I think this argument is misconceived. The learned state attorney then concluded that the circumstantial evidence did not prove the offence beyond reasonable doubt. (Ally Bakary and Pili Bakari V R TLR (1992) 10). 3 Indeed as testified by PW1 Mkimbi S/o Mbimbi and PW2, Yusepha Mloli, who were the victims of the invasion, none of them was able to identify the assailants. Neither was the accused/appellant apprehended at the scene of crime as was testified by PW3 Mussa Hassan Degela who said the appellant was not found at the scene of crime. The issue of identification on unfavourable conditions as complained by the appellant does not therefore arise. As rightly stated by the learned state attorney the conviction of appellant based on circumstantial evidence, particularly of PW3 and PW6 Legi Hamis. The issue to be determined is whether such circumstantial evidence proved beyond reasonable doubt that it was the appellant and nobody else who committed the offence. PW3 said in court that they traced the bandits through footmarks. They used bicycles. They followed footmarks which led them to the forest where they saw three people whom one among them ran away. He said the footmarks seemed to originate from the bush to PW l's residence and then appeared to leave the place and back to the bush. From this evidence, PW3 did not, however, explain what made him to be curious to follow those footmarks and whether it was a practice in the village. PW6 said they found the footmarks to be the same with the ones they had traced from Mr. Mbimbi's house. He tried to show that he started tracing the footmarks from the victims' house. But PW3 said PW6 joined the search party when they arrived at 4 Kigamboni village, which was a different village from Makombwe where PW1 and PW2 were invaded. PW6 also supported this when he said they found him thatching his hut in the forest. That is when he was informed that Mbimbi was invaded and that the search party was tracing the invaders through footmarks. It is clear that PW6 was just informed about the footmarks. He did not trace them from Mbimbi's house. But again the witnesses did not provide explaination as to how they identified the footmarks to be those of the appellant in a situation whereby other people could have shoes with similar footmarks. The witnesses did not explain as to how they were able to trace the said footmarks all through from PW ls' house to the bush. Where did they first see the footmarks; how was the road/path, the nature of the land, whether it was wet or dry, sandy or hard. It was not clearly stated as to the distance form PW l's house to the bush and whether it was possible to keep the footmarks for a certain period of time. At one time the two witnesses said they traced them along the river and then to the forest. How could they have managed to see the footmarks along the river and on the grass/forest for that matter. I think taken in its totality, PW3 and PW6s' evidence regarding footmarks raises strong suspicion that it could be the appellant who committed the offence but it remains with some questions still nagging. PW3 also said on apprehension of the appellant, they found him with a bag containing clothes. He said also that the clothes were (wet) marked with blood stains and there were spanners. PW6 on the other hand said they found the appellant with a bag 5 and when it was opened they saw some clothes and some ♦ spanners. These witnesses, again, contradicted themselves on the state of the alleged clothes found in the bag. While PW3 said the clothes had blood stains, PW6 did not mention blood, much as he saw clothes and spanners. Does this mean the two witnesses saw/perceived differently. It was expected for the two witnesses to give similar account on the state of the clothes found in the alleged bag. More seriously the doubt becomes intensified due to the fact that neither the clothes nor the bag were tendered in court so as to form part of evidence. No reasons were given for failure to tender them in court. Was it done deliberately so as to hide something. That remains unclear. On top of that, assuming the clothes had red spots or blood as it was suggested, was the alleged blood proved by experts i.e. from Government Chemist to be human blood or not. And for that matter, whose blood was it. Was it from the victims (PW1 and PW2), the appellant, or the persons who ran away from the place where the appellant was apprehended. But again, if the appellant was seen with blood stained clothes what does it tell. Does it necessarily mean that it was connected with 'the offence in this case. I think, such nagging questions would not have arisen if the said blood was taken to be examined scientifically by DNA or government chemist. All in all, in the absence of the expert opinion regarding the existence of blood on clothes found in possession of the 6 appellant, such evidence remains to be a mere allegation not ‘supported by any evidence. It was held in Ally Bakari's case (supra) that: Where the evidence against the accused is wholly circumstantial the facts from which on inference adverse to the accused is sought to be drawn must be proved beyond reasonable doubt and must be clearly connected with the facts from which the inference is to be inferred." I find that the circumstantial evidence in this case is not connected with the facts from which the inference is to be made. In other words the circumstantial evidence does not lead irresistibly to an inference of guilty to the appellant. It was not proved beyond reasonable doubt that the appellant was the one who committed the offence. The circumstantial evidence is coupled with glaring doubts which are to be resolved in favour of the appellant. As a result, I allow the appeal, quash the conviction, set aside the sentence imposed against the appellant and order his immediate release unless held for other lawful reasons. R.K.MKUYE JUDGE 11/7/2012 7 Date: 11/7/2012 . Coram: Hon R.K.Mkuye, J For Respondent: Mr. Matitu State Attorney for Republic C/C: Mr. Charles Delivered on this 11th day of July 2012 in the presence of the appellant and Mr. Matitu Learned State Attorney for respondent Republic. R.K.MKUYE j.— JUDGE f V; V\ /■:/ ^ . ■ ■ 11/7/2012