20130520 TZHC Mbeya1

IN THE HIGH COURT OF TANZANIA ti AT MBEYA DC CRIMINAL APPEAL NO. 53 OF 2011 (Original Criminal Case No.53 of 2011 of the District Court of Chunya at Chunya) BEFORE: M. H. M. SEENENE- DM FRANCISCO JAMES MWANITEGA.........APPELLANT VERSUS THE REPUBLIC................................RESPONDENT JUDGMENT Date of last order: 05/11/2012 Date of Judgment: 20/05/20 13 KARUA. J. The District Court of Chunya sentenced the two appellants, Francisco James Mwanitega. and Tensiphory Evarist hence forth referred as the 1st and 2nd appellants, respectively, to a prison term of 30 years each, consequent upon the appellants conviction, on a charge of armed a bandits are said to be the first and second appellants in this case. The bandits had PW1 tied up and led PW5 into the bedrooms in search of the money. PW5 handed over a handbag containing money and gold to the 2nd appellant. At best the bandits took away a sum of shs.51,000,000/= and some gold ornaments. They then vanished into thin air. When PW1 and PW5 gathered neighbours for their assistance, by blowing the police whistle, the two appellants had already gone. PW2, Hassan Saidi, heard the whistle and responded. The police were also notified. PW1 and PW5 were able to identify the first and second appellants with the aid of electricity light. The appellants did not cover their faces. PW3, D/Sgt. Mashaka, investigated the crime. He was able to arrest the 1st and 2d appellants and recorded their caution statements. PW4, Zakoleo Sanga, 'a justice of peace, recorded the extra judicial statement of the 1st and 2d appellant. In their extra judicial statement the appellants denied robbing the complainants. In their defence the 1st and 2nd appellants denied committing the crime. They admitted that the police interrogated them but denied recording caution 3 it statements. They contended that the same was in voluntarily obtained from them. In convicting the appellants the trial magistrate discarded the caution statements. In his reasoned judgment the trial magistrate subscribed as hereunder: "On the caution statements purported to be the admissions made by the accused persons I am very much doubt with it as the accused persons in their defence complained to be badly beaten by the interrogator (PW3) when he was interrogating then-i. Also the interrogation was completed for about two days. That act show that the statements were taken by coercion without a free consent. If the accused gave their statements freely they could not dispute it when they, were taken to the justice of the peace. From that act I conclude that the statement was not recorded freely but was a forced one." With respect, that reasoning is faultless. However, the trial magistrate should have conducted an inquiry once the prosecution wanted to introduce the statements in 4 II ¶ / evidence though the trial court later rejected the caution statements because they were not voluntary made. Indeed, this is the law and there are several judicial pronouncements made by this Court and the Court of Appeal to that effect. In convicting the apepllants the trial magistrate relied on the visual identification made by PW1 and PW5 and took into account the identification parade. The question is whether the conditions prevailing at the scene of crime were conducive for a positive identification. I remind myself of the caution made by the Court of Appeal in the remarkable case of Waziri Arnani V. Republic [1980] TLR no.250. The echoes of that decision are intense and reverberating. The evidence of visual identification, is of the weakest kind and most unreliable; no court should act on the evidence of visual identification unless the possibility of mistaken identity are eliminated and the court is fully satisfied that the evidence before it is absolutely watertight. In the case at bar the appellant and the complainants, were not familiar to each other. PW1 and PW5 merely recall what they saw on the date of incident that those appellants were their assailants. They say the incident took almost 30 minutes. They were able to 5 / identify the appellants with the aid of electricity lights. The question that begs the answer came out in a recent case decided by the Court of Appeal on 28th November 2012 in the case of Kaniili Mwaulambo and others Versus Republic in consolidated Criminal Appeal No.145 of 2010 and 167 of 2009 (unreported). In that case the victims of crime were able to identify their assailants with the aid of a pressure lamp. However none of the witnesses gave evidence on the intensity of the light coming from the pressure lamps. The court flashed back at their earlier decision in Hashim Mwalim and 7 other versus Republic Criminal Appeal No.2 34 of 2006 (unreported) wherein the justices emphasized the need for witnesses to spell out the type of lamps and the intensity of the light each generated. As is the case, with the pressure lamps, the electricity light that aided PW1 and PW5 to recognize the appellants differs. There are floodlights; beam light or dim lights and indeed different sources of electricity lights. Just as in the case of Hashimu (Supra), the witnesses in this case, did not spell out the type of electricity lights and the brightness produced by that light. I think the benchmarks set in the case of Waziri Aman (supra) were not met in this case. The trial magistrate did not properly N . resolve the issue of how PW1 and PW5 identified the appellants. The record is silent on the analysis of the identification. Apart from the time the appellants were said to be with their \Tictims, the conditions of how PW 1 and PW5 observed the appellants and whether the electricity lights were shining in a stable manner or fluctuating are missing in the record. The affront to justice is apparent in this case when it is considered that the complainants had never seen the appellants before. No wonder the complainants could not name the appellants when they were rescued by their neighbours as the persons who had invaded them. In Wangiti Marwa Mwita Vs. Republic Crimina l Appeal No. 6 of 1995 (unreported), the Court of Appeal said failure to name a suspect at the earliest possible opportunity casts doubt on the credibility of a witness. The identification parade did not assist much the prosecution case. The trial magistrate accepted the appellants story that they were badly beaten by PW3 who investigated the case, when they were being interrogated. This is why he refused to accept the caution statements. The interrogation were terminated after two days. The appellants were easily picked up in the condition they were in the course of the carrying out of the identification FA parade. Before the parade, the prosecution witnesses are said to have been brought into the room that the appellaits were. In these circumstances the identification parade was not properly conducted. For the reasons stated, the proof in my views, was not sound at all, beyond all reasonable doubt, that the appellants committed the crime that is said they had committed. In the circumstances, I quash the appellants conviction and set aside the sentence. The appellants are set fr itiess dt1Xwise lawfully held. '•v \ I 4' •' r •. •• •f ;: '. I1 /1 S. V. G. KARUA JUDGE DATED AT MBEYA 20th May 2013 Appearances: For the appellant: Present in person For the respondent: Mr. Rogers, State Attorney. Assisted by Mr. Kihaka