salum ally ahmed vs republic 2013 tzhc 2155 7 august 2013

IN THE HIGH COURT OF TANZANIA AT SONGEA (DC) CRIMINAL APPEAL NO. 13 OF 2013 (Originating from Songea District Court Criminal Case No. 73 of 2012) SALUM ALLY AHMED.....................APPELLANT VERSUS THE REPUBLIC ..........................RESPONDENT JUDGMENT 19/7-07/8/2013 KWARIKO, J. The appellant herein together with one BARAKA S/O BEDO and STANLEY S/O CASPARY @ MTEGA then 2nd and 3rd accused persons respectively were arraigned before the district court of Songea with two counts of Armed Robbery c/s 287 A of the Penal Code Cap. 16 R.E. 2002 as amended by the Written Laws [Miscellaneous Amendments] Act No. 3 of 2011. It was alleged by the prosecution that the three had on the 31st day of January 2012 at Mkongotema village within the rural district of Songea in Ruvuma Region jointly and together did steal cash Tshs. 1,126,000/= the property of EGNO MGENI and Tshs. 3,000,000/=, two cellular phones make Motorola value at TShs. 65,000/= and Nokia valued at Tshs. 55,000/= the property of OCTAVIANA DANDA and immediately before such stealing did use improvised explosive devices to the said EGNO MGENI and OCTAVIANA DANDA in order to obtain the said property. The appellant and his co-accused denied the charge and the prosecution brought before the trial court a total of ten (10) witnesses to prove the same. Briefly the facts of the case from the prosecution can be recapitulated as follows: That, while asleep in his home on the material night at 01.00 hours LEMIJUS BEATUS NGUNJA, PW3 and his wife OCTAVIANA DANDA, PW4 were invaded by three thugs. The thugs demanded money where they surrendered Tshs. 300,000/= to them. Also, during the robbery two mobile phones make Motorola and Nokia were stolen and PW3 was injured by machete. These two witnesses said they identified the appellant herein among the three thugs by torch light which came from the torch one of the thugs was beaming on them. The facts of the case further reveal that the thugs invaded another homestead which belonged to EGNO MGENI, PW6 and his wife TEDI MTAZAMA, PW5 where a total Tshs. 846,000/= was stolen. However, these witnesses did not identify any of the thugs. The information of the robbery was received by the police where among others No. E 6127 CpI. KAJOGOO, PW1 and No. E 703 D/Sgt. VALENTINO, PW2 were dispatched to the scene. Since these two policemen had prior information that the thugs had embarked in a bus named GGM, when they met this bus on the way they stopped it. They singled out the appellant and his co-accused persons who were said to have embarked in the bus at the middle of the bush. Upon searching the appellant was found with fresh bleeding wound in his right hand. The appellant and others also was said to have been searched and found in possession of two mobile phones including a Motorola which was later identified to be stolen property of PW4, OCTAVIANA DANDA. This phone was admitted in court as exhibit PI whereas the PF3 of PW3, LEMIJUS NGUNJA was tendered in court by DR. MAXENCIUS KAYOMBO, PW8 as exhibit P2. In their defence the appellant and his co-accused did not deny that they were fished out by the police from GGM bus when they were coming from Madaba area to Songea Town. The appellant said was coming from Uyole where he connected transport at Madaba and had business mission at Songea. The 2nd and 3rd accused persons said were Morogoro and Ludewa businessman and peasant respectively who were coming to Songea to do some business. However, they denied robbery allegations. At the end of the trial the court found that the case had not been proved against the 2nd and 3rd accused and were accordingly acquitted. Whereas the trial court found that the appellant had been sufficiently identified at the scene of crime hence was found guilty, convicted and sentenced to statutory terms of imprisonment of thirty (30) years in each count and the sentences were ordered to run concurrently. Having been aggrieved by the trial court's decision the appellant brought this appeal where he raised about eight grounds of appeal. However, the grounds of appeal raise two essential points of complaints that the evidence in relation to visual identification at night was not water tight and the prosecution case was not proved beyond reasonable doubt. During the hearing of the appeal the appellant adopted his grounds of appeal and said he reserved any explanation until he heard the respondent's stance in respect of his appeal. Luckly, Ms. Jacquiline learned State Attorney who appeared on behalf of the respondent Republic did not oppose this appeal thus making the appellant's life easy. Ms. Jacquiline gave reasons for her stance which reasons will be referred in the course of this judgment. On its part this court after it has gone through the original record, the evidence, the decision thereon, the grounds of appeal and the submission by the respondent's counsel it is satisfied that the prosecution case against the appellant was not proved beyond reasonable doubt. The following are the reasons for this court's stance: Since the trial court's conviction against the appellant to a great extent depended on the evidence of identification at the scene of crime, this being a first appeal the court has a duty to revisit that evidence to see if the same was sufficient to round conviction. Hence, a look at PW3 and PW4's evidence in relation to the identification of the appellant at the scene, these two said they identified the appellant through torch light and the torch was in the hands of one of the thugs. As rightly submitted by Ms. Jacquiline, learned State Attorney it is a settled law that the evidence of visual identification is of the weakest kind and should not be relied upon until all possibilities of mistaken identification are eliminated, (See WAZIRI AMANI V.R [1980] TLR 250. In the present case PW3 and PW4 said the torch which was in the hands of one of the thugs and which was beamed on them was the source of light which enabled them to identify the appellant at that dead night hour, 01.08 a.m. It is common knowledge that when one is illuminated with a torch his visibility gets hampered and thus difficult to identify another. Therefore, in this case if PW3 and PW4 were struck by torch light that was beamed on to them by another person there was no possibilities that they identified any thugs at the scene. After all it has been decided that torch lights are not effective in identifying thieves (See MOHAMED MUSERO VR [1993] TLR 290 and MICHAEL GODWIN & ANOTHER VR, Criminal Appeal No. 66 Court of Appeal of Tanzania at Mwanza, [unreported]). Also, this court fully agrees with Ms. Jacquiline learned State Attorney that since PW3 and PW4 said three thugs had invaded them, then they ought to have explained the peculiarities of the appellant which made them to identify him but failed to identify the other two thugs. They did not do that and this shows that they wrongly pointed out the appellant whom they said was stranger to them without any proof of his identity. This court has considered the other leg of evidence by PW3 and PW4 against the appellant that PW3 cut the appellant's right hand finger during the robbery where also PW3 got injured. That blood was smeared all over the sitting room. Also, the appellant's bleeding right hand finger smeared PW5's mosquito net during the robbery. It was said that the blood was identified to belong to the appellant. On this as correctly submitted by Ms. Jacquiline the alleged blood sample ought to have been sent to a Government Chemist for examination to prove its owner. There is no any evidence which was tendered to prove that blood, if any, found at PW3's or PW5's respective homes were scientifically analysed and proved to belong to the appellant or to any other person including PW3. This evidence therefore cannot be said that it rightly connected the appellant with the robbery. The other evidence by PW4 against the appellant is that he identified the appellant through the scar in his right hand and was emphatic that the same was caused by the cut injury he sustained during the robbery. Again this evidence is doubtful since the appellant's scar, if any, was not conclusive evidence that he had sustained the same during the alleged robbery. If at all the appellant was found with fresh wound when was arrested by PW1 and PW2 why wasn't he taken to hospital for treatment and also to get evidence to prove the charge? No any evidence was brought to that effect. In this case a PF3 could have been tendered in court to support the allegations and prove PW4's evidence that he had sustained injury on the appellant. In this respect I find that the trial magistrate was also wrong to shift the burden of proof to the appellant in relation to the said old scar. The trial magistrate believed that the appellant's scar was sustained during the robbery otherwise he (the appellant) ought to have given explanation on how he sustained the same. Here, it should be remembered that in a criminal trial the burden of proof never shifts to the accused person as it is the duty of the prosecution to prove their case and the accused's evidence is only required to raise a reasonable doubt on that evidence. In this case therefore if the prosecution alleged that the appellant had sustained injuries during the robbery or had old scars they ought to have proved the allegation by concrete and well connected evidence. They failed to do so. I also agree with Ms. Jacquiline that PW4's evidence that she identified the appellant by his name ought to have been corroborated by another independent evidence. This is so because if the complainants said did not know the appellant before how could they have known that his name was SALUM? Their evidence was that one of the thugs mentioned the name of SALUM when he said "SALUM UA" literally meaning "SALUM, KILL". How were they sure that the SALUM they heard being mentioned was the appellant if they didn't know him before? After all, even if the name SALUM was mentioned in the course of the robbery then it could not necessarily mean it was the appellant's name as there are many people with the name SALUM. Otherwise, I agree with Ms Jacquiline that ordinarily thieves would not be calling each others' names at the scene of crime for fear of being identified. Now, since PW3 and PW4 said they did not know their attackers before, and if they said they identified the appellant, the law says that there ought to have been an identification parade to that effect. In this case there is no evidence to show how the prosecutors believed that the two witnesses had identified any of the attackers without being subjected to an identification parade. No one came to tell the court that PW3 and PW4 had mentioned the identity of their attackers soon after the robbery. And if PW3 and PW4 said they identified the appellant whom they did not know before why PW5, PW6 and PW7 failed to identify any of the attackers if they were invaded by the same bandits and in the same night. This question was not answered during the trial. Therefore, I can safely say that the complainants did not identify any of their attackers since the conditions for favourable identification were not met. The criterion for favourable visual identification were not explained and met. It is surprising that PW3 said the robbery took about five seconds. I do not think in five seconds can any one identify a bandit. Thus, the duration which the witnesses had the thugs under observation was not proved and also the distance between them was not explained (See NUNG'UNIKO GIDULE VR, Criminal Appeal No. 223 of 2008, Court of Appeal of Tanzania at Iringa, Unreported). Lastly, PW1 and PW2/s evidence against the appellant that he was found in possession of stolen property casts doubt. This is so because no any independent witness came to testify to support these police witnesses. These witnesses said the appellant was among bus passengers and when was searched was found in possession of stolen phone which later PW4 identified as her stolen property. Firstly, there ought to have been an independent witness to support the policemen and more so since they said there were many passengers in the bus. The bus driver and conductor PW9 and PW10 respectively did not testify any substantial evidence as they said they couldn't remember anything that happened that day. Else, the policemen ought to have recorded the search and made the appellant and other witnesses sign against it. They did not do that and this makes the alleged search exercise illegal. And therefore the trial court erred to believe that the alleged mobile phone which was said to have been found in possession of the appellant belonged to PW3 and PW4 (See JOSEPH MBELWA VR, Criminal Appeal No. 10 of 2009, Court of Appeal of Tanzania at Iringa, [unreported]). Conclusively, the court agrees with both parties that not only that the prosecution case did not prove that the appellant was identified at the scene of crime but also the whole prosecution case against him was not proved beyond reasonable doubt as it has been shown herein above. I therefore allow this appeal, quash the conviction and set aside the sentence. It is thus ordered that the appellant be released from custody unless his continued incarceration is related to other lawful cause. It is ordered accordingly. KWARIKO )|!S2UDGE j ■ t • li /£•»,> V < . •. - j : ■■■■ : ,• Judgment delivered in court today in the presence of the Appellant and Ms. Tumaini learned State Attorney for the Respondent, Republic. Ms. Harriet court clerk present.