20130228 TZCA Dodoma1

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA (CORAM: KILEO, J.A., LUANDA, J.A., And MMILLA, J.A.) CRIMINAL APPEAL NO. 32 OF 2011 ALLy SHABAN! ........... ■ ••• ■ •••••••••••••••••••• ■■ ••••••••••••••••••• I ••• ■ •• ■ •••• APPELLANT VERSUS THE REPUBLIC ..................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dodoma) (Kaijage, J.) dated the 5 th day of SEPTEMBER, 2003 In Criminal Appeal No. 6 of 1999 JUDGMENT OF THE COURT 28th February, & 1st March, 2013 KILEO. J. A.: The appellant Ally Shabani was charged with and convicted of armed robbery contrary to c/s 285 and 286 of the Penal Code in the District Court at Dodoma. He was unsuccessful in his appeal to the High Court. Undeterred he has come to this Court on a second appeal. In brief, the facts of the case as they appear from the prosecution witnesses show that Christian Asenga (PW1) owns a shop and grocery at Chaduru area within the Municipality of Dodoma. His shop is partitioned by a curtain which separates the shop and a bedroom that he sleeps in. At the time of the incident (6/7/1998) he had employed PW3 Joel Chiteto as a shopkeeper and one Emmanuel Shaban to attend the grocery. On that particular day PW1 was sleeping with his guest one Benson Richard (PW2) while PW3 closed the shop and went to assist Emmanuel Shaban at the grocery. At about 23:00 hours four customers came for a drink including the appellant. After the appellant was served with the drink he asked PW3 to go open the shop and get him a cigarette. When PW3 went to open the shop, the appellant together with his other two fellows followed from behind and invaded him. It was alleged that the appellant was holding a knife and one of the bandits (Yoram Megabe) was holding a pistol. Various (unspecified) items were taken from the shop. Many people responded to the alarm that was raised. One of the invaders (Yoram Megabe) was lynched by the mob that had gathered. 2 The appellant's memorandum of appeal comprises of nine grounds which can conveniently be condensed to two main grounds: One, that he was wrongly convicted on weak identification evidence and two that his defence case was not considered. At the hearing of the appeal the appellant appeared in person and unrepresented. The respondent Republic was represented by Mr. Angaza Mwipopo, learned Senior State Attorney. When he was called upon to address us the appellant_ asked us to adopt his grounds of appeal particularly considering that the circumstances at the scene were poor for proper identification. Mr. Mwipopo did not find it wise to support the conviction and sentence. He submitted that the circumstances pertaining at the scene were not favorable for watertight identification. He pointed out also that it would have been difficult for PW1 who was one of the two identifying witnesses to see the appellant while at same time he was wrestling with the second accused. The learned Senior State Attorney urged us not to accord much credence to the testimony of PW1 as his evidence was contradictory of itself. For example while he was being examined in chief he stated that he saw the appellant for the first time at the scene while 3 ' . in cross examination he claimed to have known him previously. Mr. Mwipopo further referred to contradictions between the evidence of PW4 who testified that PW1, PW2 and PW3 mentioned the appellant to him while it is not recorded anywhere that the three witnesses mentioned the appellant to him. Moreover, PW2 did not recognize anyone at the scene. In the circumstances, the learned Senior State opined that conviction could not be sustained. Admittedly, the appellant's conviction was grounded solely on identification. The incident in this case occurred at night (about 23.00 hrs). Identification of the invaders therefore, becomes a crucial issue. There is no dearth of authorities on cases which centre on visual identification. In the celebrated case of Waziri Amani Vs. Republic (1980) TLR 250 the I Court held: "(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. " 4 The Court went further and enumerated a number of factors to be taken into account by a court in order to satisfy itself on whether or not such evidence is watertight. These factors include: the time the witness had the accused under observation, the distance at V;Jhich he observed him, the conditions in which the observation occurred, for instance, whether it was day or night- time, whether there was good or poor lighting at the scene; and further whether the witness knew or had seen the accused before. In Raymond Francis vs Republic (1994) TLR 100 listed as an authority by the learned Senior State Attorney the Court held: ''It is elementary that in a criminal case whose determination depends essentially on identification evidence on conditions favouring a correct identification is of the utmost importance. " There are many other decisions re-stating the principle stated in Waziri Amani and Raymond Francis above to mention just a few: Jaribu Abdalla v. R., Criminal Appeal No. 220 of 1994, Issa Mgare @ Shuka v. R., Crminal Appeal No. 37 of 2005 Said Chally Scania v. R., Criminal Appeal No. 69 of 2005 Kulwa Mwakajape v. R, Criminal Appeal No. 35 of 2005 (all unreported). 5 In Jaribu Abdalla (supra) the Court held: ".... .in matters of identification it is not enough merely to look at the factors favoring accurate identification. Equally important is the credibility of witnesses. The conditions of identification might appear ideal but that is no guarantee against untruthful /✓ ev1uence.... :,,./ Bearing in mind the above principles can we say with confidence that the appellant's identification at the scene of crime was watertight? PWl who was awakened from sleep by his guest, PW2 claimed to have identified the appellant through light from a lamp that was burning outside. However, as submitted by Mr. Mwipopo the intensity of the light from the lamp was not indicated. Moreover, it is not shown in the evidence that PWl mentioned the appellant as one of his invaders at the earliest opportunity. On top of that as pointed out by the learned Senior State Attorney, PWl gave contradictory evidence in that during examination in chief he stated that he did not know the appellant while in cross examination he claimed to have known him. prior to the incident. ~ PW3 also claimed to have recognized the appellant as he knew him before the incident. Like PWl, there is no indication that he mentioned the appellant as one of the culprits at the earliest opportunity. It has been held on various occasions that in order to enhance his or her 6 credibility., a witness of identification would be expected to give description of the suspect, in relation to physique, attire etc, and if he knows him to name him at the earliest opportunity. (See Mohamed Allui vs R, (1942) 9 EACA 72, Marwa Wangiti Mwita and Another v. R. - (2002)TLR 39 Since the two identifying witnesses did not name the appellant or describe him at the earliest available opportunity their credibility is put to question. There is another aspect which to us suggested that the prosecution witnesses might not have been telling the truth. For example, at page 27 of the record PW4 D/Sgt Seleman is recorded as having testified to the effect that PW2 told him that he saw the 2nd accused and described him as being short with a mark of crocodile on his person. However a careful examination of the testimony of PW2 did not show any where he described the appellant to PW4. It also transpires from the record as per evidence of PW4 at page 28 that the appellant was arrested at the scene of crime. This piece of evidence tallies with what the appellant stated in his defence as it appears at page 39 of the record. The appellant had stated that when he was arrested instead of being taken to the police station he was taken to the locus in quo where he was introduced to the victims as the culprit. The appellant complained in one of his grounds of appeal that his defence 7 was not properly considered. Given the above scenario we think he has a point. If the learned judge had given careful consideration of the appellant's defence he would probably have found that it raised doubt on the case for the prosecution. In the light of our discourse above we find that the appeal by Ally Shabani was filed with good cause. We accordingly allow it. Conviction entered is quashed and sentence imposed is set aside. The appellant is to be released from custody forthwith unless he is held therein for some other lawful cause. DATED at DODOMA this 28th Day of February 2013. E. A. KILEO JUSTICE OF APPEAL B. M. LUANDA JUSTICE OF APPEAL B. M. MMILLA JUSTICE OF APPEAL I c ~ t this is,,,, true co f the original. / I Ma DEPUTY R COURTO