20131018 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA AT DODOMA DC. CRIMINAL APPEAL NO. 77 OF 2010 (Original Criminal Case No. 299 /2009 of Singida at Singida) PASCAL S/0 PAULO AND MARTINE AUGUSTINE ..... APPELLANTS VERSUS THE REPU-B-LIC ..... ............................. ................ RESPONDENT JUDGMENT 10 - 07-2013 & 18-10-2013 R. K. MKUYE,J.: The appellants Pascal Paul and Martine Augustine were jointly charged before the District Court of Singida at Singida with two counts namely, armed robbery contrary to section 287 A; and rape contrary to sections 130(1) and (2) and 131 (1) of the Penal Code, Cap 16, RE 2002. Following a full trial they were convicted with an offence of armed robbery and sentenced to a mandatory sentence . of thirty years imprisonment. The prosecution case at the trial court was that on the material date while Effzabeth Hdngida · (PWl) was asleep, she heard a door - - ~-. ~ - . -· bang and some robberers entered into her room. The robberers ordered her to remain where she was and commanded her to 1 ,,. ~ surrender her mobile phone and money while threatening to kill her if she had none. Those people claimed to have been sent to kill her. As one of them pleaded with them not to kill her because she used to sell fish to them, they ordered her to give them the sales proceeds of that day. They took shs. 3000/= which she had. One of the robberers, allegedly, flashed the torch light on the bed where her daughter was sleeping with two children. They picked one child and went to the sitting room and came back after a while. The robberers went into the childrens' room and children started crying. PWl allegedly managed to identified the robberers with the aid of moonlight illuminating through the broken door. Though PWl was threatened to be chopped off her head, she sneaked out and raised alarm. The robberers took two mattresses and took to their heels. Some people responded to the alarm raised and the incident was reported at the police who after visiting the place directed people to follow /pursue the foot prints and the same ended at one Mghanga's (a woman) house where the 2nd appellant was found · and arrested. Both appellants denied- involvement in the offence. The 1st ·~~~~--~0p~ellent•~tes4-i-f-iee~-te~tne---effeet--•t•Aet-ne-•wes~en:es-ted- 0n--~8/8/~889~at- -----------his ·sister-'-s-residenee---wher-e-he-hod-gone--to--console--her-following· th-e·- death of her husband. The 2nd appellant testified that he was 2 . arrested by a group of people who alleged ·to ·have followed his foot prints and later the police came and took him and on searching him nothing was recovered. The trial court convicted the appellant on the basis of PW l, PW2 and PW3's evidence that they identified them. After being dissatisfied with the trial courts I decision, the appellants through the services of the late Mr. Shashi learned advocate filed this appeal while basing on thirteen grounds of appeal which were argued in their wholesome by Mr. Kidumage learned advocate who took over from him (the late Mr. Shashi), on. the following heads: l. That the identification evidence was not watertight. 2. That the arresting of appellant by tracing foot prints indicates they were not properly identified. 3. That the appellants were not mentioned to the police. 4. That no independent witness testified in court. 5. That the prosecution evidence was contradicting. 6. That the defence evidence was not considered by the trial court. The respondent Republic was represented by Mr. Sarara learned state attorney who sought to oppose the appeal. It was Mr. Kidumage's contention in relation to the first ground that the appellants were not properly identified at the scene of 3 crime since it was dark and the condition was terrific. He further· charged that while PW2 and PW3 said they identified the appellants through the lamplight (kibatali) and light of match box, PW 1 said she identified them with the aid of moonlight which illuminated through the broken door when she was looking at her children in the children's room. He contented further that the 1st appellant was unkown in that area and yet no identification parade was conducted. For that matter, he asserted that, the identification was not watertight and he cited the case of Waziri Amani V R {1980) TLR 250 in support. In the second and third grounds of appeal, it vvas Mr. Kidumage's contention that since the appellants were arrested after tracing the foot prints, it meant that they were not identified at the scene of crime. Otherwise, he argued, they would have been mentioned at the police. · Mr. Kidumage argued in relation to ground No. 4 that there was no independent witness who testified in this case. With regard to the fifth ground of appeal, Mr. Kidumage was of the view that there were contradictions on the prosecution evidence with regard to the light which enabled identification as --·~---·•--·f2~W:l- soid,she-~iE:leAfifie_EJ-N9e-reb0erers-witri the aid 0f moonli§ht; P·W2---· - - - - - ------- soid~-she--iden-tified- the appellants through -a-lamplight (kibatariJ;· -- and PW3 said she was able to identify the assailants through a 4 ' match box light.·. On -top of that, Mr. Kidumage argued, while PW2 said the 2 nd appellant ran away after alarm was raised, PW3 said the l st appellant removed the 2nd appellant from the victim. Again, while PW3 said two robberers entered inside, PW4 said it was four robberes who entered inside. In the sixth point it was submitted by Mr. Kidumage that the defence evidence particularly from DW3 and DW4 who said the l st appellant had slept in their house was not considered. In reply, Mr. Sarara learned state attorney, in relation to the issue of identification submitted that the appellants were properly identified by PW l through lamplight inside the room and the torch light. PW2 identified them through the match box light as the incident took about 15 minutes. He added that PW2 also saw the blue jacket. He also submitted that the 2nd accused was seen at Saranga Bar and therefore the factors set out in Waziri Amani's case (supra) were met. As to ground No. 2 Mr. Sarara was of the view that when the appellants were traced through foot prints a person called Pascal was found with the jacket seen at the scene of crime. In relation to lack of independent witness, Mr. Sarara leanred state attorney did not comment. 5 With regard to point No. 3, the learned state attorney argued · that the witnesses did not mention the appellant's names as they did not know them but they provided their description. On non consideration of defence evidence, Mr. Sarara submitted that in the first place DW3, the appellants sister was inside the court room following up the court proceedings. Secondly, he argued, both DW3 and DW4 had an interest to serve and referred to this court the case of Abraham Saingulani V R (1981) TLR 265. In rejoinder, Mr. Kidumage learned advocate argued that the evidence regarding the jacket contradicted itself as to its colour. He also argued that the issue of light was questionable as the robberers used torch light and for that matter they wouldn't have flashed it on themselves to avoid identify. I think, I should begin with the first ground of appeal as to whether the appellants were properly identified or not since if it is decided in the negative it will dispose of the whole appeal without necessarily considering the other grounds of appeal on their merits. The appellants major complaint is that they were not properly identified. 6 Admittedly, the trial court found the appellants were properly identified on four grounds, namely one, the victims spent about five minutes with the accused/ appellants; two, the robberers after entering inside the room put off the oil lamp; three, the 2 nd appellant was known even before the event; and four, the 1st appellant was arrested while wearing the blue jacket seen with it during the incident. However, it may not be insignificant to mention here that, I was unable to see where a witness or witnesses said the incident took about five minutes as appears in the judgment or fifteen minutes as the learned state attorney tried to suggest so as to imply that the victims had observed the robberers for such time. As such, the period spent by the robberers in that incident remains unkown. The identification evidence in this case essentially, came from three witnesses to which Mr. Kidumage learned advocate asserts that it contradicts. Unfortunately the learned state attorney did not address the court on the alleged contradiction. PWl said she was able to identify the appellants through the lamp light before it was put off by the robberers. Later she said she identified them with the aid of moonlight through the broken door. PW2 on her part said, she identified the robberers with ·the help of Kibatari in their room. PW3 said she was able to identify the robberers through a match box ------ ·-- --··-· -·- - ,. --- -. - - · - -- - ~ light. 7 •· In the first place, ·as rightly argued by Mr. Kidumage learned advocate,·· there is a contradiction on the type of light which enabled the witnesses to identify the robberers. Unfortunately, there was no explanation on the variance. The three witnesses who were in the same vicinity mentioned different types of light which enabled each to identify the robberers. It is not known as why and at what stage the lamp light, moonlight, kibatari light and match box light came into play. Secondly, the location where the light illuminated from the place where the witnesses were and where the robberers were was not explained. This factor was very crucial in order to eliminate the possibilities of mistaken identify. Three, no description of illumination or intensity of the said lamp, moonlight, kibatari or match box was stated. It was held in the case of Lubeleje Mavina & Another V R Criminal Appeal No. 272 of 2009 (CAT) (Unreported) that: "... unlike light from bulbs or tube lights whose light intensity remains constant depending on their watts, the intensity of light from wick lamps is not always constant. It is adjustable depending on the tests of the consumer and needs of the particular moment". In the same case of Lvbeleje (supra) while .citing with approval -.th~_J::s:ts_~:LQLl(uJw~a_MgkwgJaR~ and 2 Qlhe.t~\LRCrim. . -ARpeaLNo.~_35. _ 8 · "the intensity and illumination of the lamp is important so that a clear picture, is given of the condition in which the appellants were identified". Clearly, in this case, the type of lamp and the intensity of light was not clearly stated by any of the witnesses. Even PW l who said she identified the appellants before the lamp was put off did not explain the type and its intensity of the said lamp. The same with PW. Though she said she identified the appellants in the children's room with the help of moonlight through the broken door, she did not explain whether it was broad moonlight or not. Moreover, she did not explain the distance from where she observed to the children's room and how exactly she was able to peep through the broken door. Likewise, PW2 and PW3 did not elaborate on the intensity of the kibatari and the light of the match box respectively. It is now trite law that where a witness is testifying about identifying another person in unfavourable circumstances like during the night, he/she must give clear evidence which leaves no doubt that the identification is correct and reliable. To do so he/she needs to state the aids to rnistaken identification like proxirnily to the person being identified, the source of light; its intensity etc. (See the case of .. --· -· .. Cosmos Alphonce V R Crim. Appeal No. 241 of 2007 (CAT) (Unreported). 9 · lh this case none of the three witnesses explained about the proximity to the persons (appellants) being identified. I think with what I have already demonstrated the doubts in identification evidence have to be resolved in favour of the appellants. In the circumstances, I am satisfied and I hereby hold that the appellants were not sufficiently identified. In order words, I am inclined to agree with Mr. Kidumage's argument that the prosecution failed to prove their case beyond reasonable doubt and thus I allow the appeal. In the final event, I quash the conviction, set aside the sentence and order an immediate release of both appellants from custody unless held for other lawful reasons. ~\._,\<:...-~ .-Q... (R. K. MKUYE} JUDGE 18/10/2013 Delivered in the presence of Mr. Kidumage and the appellants and Mr. Kyando for the respondent Republic on this 18th day of October, 2013.