marwa vs kachanga vs republic 2013 tzhc 2043 25 february 2013

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT PAR ES SALAAM CRIMINAL APPEAL N0.25 OF 2012 (Appeal from the judgment and decision of the Ilala District Court, at Samora Avenue, (P. Kalala, RM) in Criminal Case No. 243 of 2009 dated 9th August 2010) MARWA KACHANG'A APPELLANT VERSUS REPUBLIC RESPONDENT Date of last order: 28/ 11/2012 Date ofjudgment: 25/ 02/2013 JUDGMENT Fauz Twaib, J: In the District Court of Ilala District at Samora Avenue, the appellant was charged, together with one Jimmy Ashen Mwita, with armed robbery contrary to section 287 of the Penal Code, Cap 16 (R.E. 2002). At the end of the trial, Jimmy Ashen Mwita was acquitted. The r Appellant was convicted and sentenced to serve 30 years imprisonment. Aggrieved, the appellant filed the present appeal, citing five grounds of appeal. At the hearing of the appeal, the Appellant added two other grounds. Essentially, the grounds of appeal amount to a challenge of the visual identification of the Appellant at the scene of crime and the sufficiency of the prosecution evidence against him. The two additional grounds were that the change was read over to him before the trial began, and that all the prosecution witnesses were relatives. Page 1 of 5 The first additional ground of appeal can be dealt with here and now. There is nothing in law that requires that the charge must be read over to the accused immediately before the beginning of the trial, if that was done before. That ground of appeal stands dismissed. In the second additional ground of appeal, the Appellant asserts that the case against him was a frame up. He said that all the prosecution witnesses were relatives. PW1 and PW3 were wife and husband respectively while PW2 was a relative of PW3. It is true that PW1 and PW3 are spouses, however, there is nothing to show that any of them was related to PW2 other than being neighbours. This argument was never brought up by the Appellant at the trial. One would have expected him to challenge the prosecution evidence on this ground, if net during cross-examination, then at least through his own evidence. The Appellant's appeal hinges primarily on his challenge of the identification done of him by PWlMtongoleMseveni and PW2 Kirato Mseti at the scene of crime. They were the prosecution's main witnesses. PW1 testified that she was attacked by robbers (all men) at around 20.30 Hrs on 24th February 2009 at her home in Kivule Kazerange, within Ilala District. She was then cooking. The five men had knocked on the door and she opened it. One of them who was in front wore a white shirt, black trousers and a "barkashia" (a cap usually worn by Muslim men). She identified him in Court as the 1st accused. PW 1 further testified that PW1 had beaten her up and forced her to show the bedroom where money was kept. PW1 tried to shout until neighbours came and succeeded to chase the robbers away. But they succeeded to take with them a total sum of Tshsl,350,000. PWlsaid that she heard the sound of gunfire in the air as the robbers were running away. Page 2 of 5 The evidence relevant for identification on the material night (at 20.30 Hrs on 25thFebryary 2009) was that there was "chemli" (lantern lamp), that PW1 and PW2 knew the accused before the incident by face because he used to pass by their home when going to one Mama Bonge who used to sell food and local brew. PW1 told the Court that the Appellant was caught when, three days after the incident, he passed through their home. She and her husband (PW2 Mseveni) shouted for help. Neighbours came and assisted in*apprehending him, He was then taken to the Police Station at Sitakishari. The evidence of identification given by PW1 was corroborated by PW2 in all material respects by PW2. He said on the material date and time, he had visited the Msevenis at their home. Some people (the robbers) came to knock at the door. He also identified the Appellant as one of the culprits, who had beaten up PW1 and forced her to show where money was kept. He could recognize the Appellant because there was lantern lamp light, he knew him before and that during the incident, he (the Appellant) had come as close as about five steps of PW2. Mr. Mwakanyamale, learned State Attorney for the Respondent Republic, did not support the conviction. He took the view that the circumstances under which the Appellant is said to have been identified by PW1 and PW2 were not sufficient to satisfy the requirements of the law on identification as spelt out in Waziri Amani v R (1980) TLR 250. In that case, the Court of Appeal observed there can be no hard and fast rules as to the manner in which a trial Court can resolve questions of identity. However, it laid down the following guidelines: "We would, for example, expect to find in the record questions such as the following posed and resolved by [the trial Judge]: the time the witness had the accused under observation; the distance at which he observed him; the conditions in which such observation occurred for Page 3 of 5 instance, whether it was day or night-time whether there was good or poor light at the scene; and further whether the witness knew or had seen the accused before or not." Hence, it is now settled that before basing a conviction solely on evidence of visual identification, such evidence must remove all possibilities of mistaken identity and the court must be fully satisfied that the evidence is watertight. See Shiku Salehe v R (1987) TLR 193. v Eria Sebwato[\9§Q] E.A. 174. The issue, therefore, is whether the evidence adduced at the trial sufficiently satisfied this legal test. Though it is not clear exactly how long PW1 and PW2 had the Appellant under observation, I am satisfied that it must (from what is said to have taken place) have been sufficient to enable PW1 and PW2 (and especially PW1, who suffered beatings at the culprit's hands and had been very close to him) to identify him in the lantern light. This, coupled by the fact that the two witnesses also knew the Appellant before the crime, was sufficient, in my view, to remove any possibilities of mistaken identity. In the result, I am constrained, with all due respect to the learned State i Attorney, to disagree with him in his support of this appeal, which I hereby dismiss. DATED at DAR ES SALAAM this 25thday of February 2013. Fauz Twaib JUDGE 25th February 2013 Page 4 of 5 Delivered in Court this 25thday of February 2013. t Fauz Twaib JUDGE 25th February 2013 Page 5 of 5