20140303 TZCA Bukoba

IN THE COURT OF APPEAL OF TANZANIA AT BUKOBA (CORAM: OTHMAN, C.3.. LUANDA. J.A.. And MUSSA. J.A.^ CRIMINAL APPEAL NO. 155 OF 2013 1. DEMERITUS JOHN @ KAJULI 2. JOSEPHAT STANSLAUS @ SEMENDARI 3. BUBERWA KARUYA 4. HAKIMU AHMAD APPELLANTS VERSUS THE REPUBLIC............................................................................ RESPONDENT (Appeal from the conviction and sentence of the High Court of Tanzania at Bukoba) (Miemmas, J.T dated 14th day of December, 2012 in Criminal Session Case No. 20 of 2008 JUDGMENT OF THE COURT 26th February & 3rd March, 2014 OTHMAN, C.J.: Demeritus John @ Kajuli (1st appellant), Josephat Stanslaus @ Sernendari (2nd appellant), Buberwa Karuya (3rd appellant) and Hakimu Ahmad (4th appellant) were jointly charged and convicted by the High Court (Mjemmas, J.) at Bukoba of the murder of Respikius s/o Mwijage, whose burnt skull and dead body was found (Exh P .l) in his house that had been set ablaze by assailants on 2/06/2007 at Rugela village, Karagwe District. Each of the appellant was sentenced to suiter aeatn oy nanging. Aggrieved by the convictions and sentences, the appellants have lodged this appeal. At the hearing of the appeal, the appellants were represented by Mr. Josephat Rweyemamu, learned Counsel. The respondent Republic which resisted the appeal was represented by Ms. Grace Komba, learned State Attorney. Briefly/ the prosecution case at the trial was anchored on the evidence of sisters, PW1 (Kokutona Zimbeya) and PW2 (Agnes Respikius). PW2 was also the deceased's wife. PW1 gave evidence that at about midnight on 1/6/2007, while she was with her husband, one Godfrey Zimbeiya guarding a charcoal furnace they were surrounded by a group of 15 assailants, including the 1st, 2nd, 4th appellants and John Kajuli, the Hamlet Chairman (he died while in remand custody). She knew all of them as they were neighbours in Chabujune village. They were searching for her younger brother, Issack Abdallah. They lead them to a swamp area where her husband managed to disappear. The assailants stopped at her house and burnt it. All the while, she managed to recognize them due to the moonlight. Thereafter, they took her to PW2's house where she remained 5 paces away from it but under restraint. It was PW1 and PW2's evidence that, when the deceased opened the door they pulled him out, tied his hands and legs with ropes and threw him back into his house, which they had set ablaze. The assailants then closed the door. The moonlight and the burning fire light had enabled PW1 and PW2 to correctly identify the appellants. Each of the appellants denied any involvement in the death of the deceased. The three assessors opined that the prosecution had not proved its case against the appellants and so they were not,guilty. In its judgment, the High Court found out that although PW1 did not specify the intensity of the moonlight, the appellants' identification was water-tight and had no room for mistake. It also held that PW2's Identification of the appellants was unmistaken as she had managed to recognize them by mponlight and the light from the burning house. On the evidence of PW3 (D 7759 D/CPL Ahmad), the trial .court also held that the appellants' conduct of escaping from the village corroborated PW1 and PW2's evidence. Finally, holding that they had common intention/ it convicted each of the appellants for the murder of the deceased. The appellants' two grounds of appeal contained in their memorandum of appeal principally challenge PW1 and PW2's visual identification evidence for being contradictory and made under unfavourable conditions of identification. Mr. Rweyemamu was critical of the High Court in the way it was impressed by PW1 and PW2's identification evidence and the credibility it had accorded to these key prosecution witnesses. First, he submitted that PW1 and PW2's evidence was contradictory in regard to the 3rd aooellant. He pointed out that while PW1 repeatedly stated that she had only identified the 1st, 2nd and 4L" appellants; on the other hand PW2 who had slipped away from the burning house and hid under a coffee tree claimed to have identified the 3 rd appellant. Since the 3rd appellant came from the same village as PW1, She too should have easily identified her. She did not. That it was unsafe under these unfavourable circumstances :of identification to rely on the sole evidence of PW2 to convict the 3rd appellant. Second, he lucidly submitted that the conditions for identification at the charcoal furnace were not favourable. The identification by moonlight, which PW1 relied upon, was subjective. Moonlight p e r se was not sufficient. There were many factors that impaired vision, even with moonlight. Third, Mr. Rweyemamu submitted that PW1 was with her husband at the charcoal furnace. The assailants had tied her husband's hand by the back. They were both taken to the swamp area and he managed to escape. He was thus an important and independent witness to the event and should have been called by the prosecution to corroborate PW l's evidence. He did not and no reason was assigned by the prosecution for not producing him. He invited us to draw an adverse inference against the case for the prosecution. Fourth, with regard to identification at the deceased's house, Mr. Rweyemamu submitted that while PW1 said she did not see PW2 until the morning when she raised an alarm; PW2 said she saw PW1 lying down near the house. That as PW1 knew that PW2, her sister, lived in. that house, she should have seen her too, if PW2 really saw her. Fifth, relying on Nyigoso Masolwa v. R. (1994) T.L.R. 186 and Marwa Wangiti Mwita and Another v. R. (2002) T.L.R. 39 Mr. Rweyemamu submitted that apart from John Kajuli, PW1 and PW2 did not immediately name any of the appellants to the villagers or to PW3 who immediately came to the scene of crime. That if PW2 was in pain for the loss of her husband and the appellants came to the scene of crime, she should have promptly named them to the villagers. This meant that PW2 was not sure whom she had identified. Responding, Ms. Komba relying on Shamir s/o John v. R., Criminal Appeal No. 166 of 2004 (CAT, unreported) submitted that PW1 and PW2's identification evidence was correct. Moonlight at the charcoal furnace made PW l's identification of the appellants, favourable. The incident at the deceased's and PW2's hqme took two hours and there was light from the burning house. There was also no material contradictions in the evidence of PW1 and PW2 as the* 3rd appellant was only named by PW2, who had seen him tie up the deceased's hands. Furthermore, as PW1 and PW2 concentrated on the event and PW2 had slipped away from the house, it was possible that PW1 did not see her. ■" Ms. Komba contended that it was not necessary for the prosecution to have called PW l's husband as a witness. He had only witnessed a part of the events of that night and was not present at the deceased's house. There was no cause to draw an adverse inference against the prosecution for his non-production. Ms. Komba went on to submit that there were valid reasons for PW l an.d PW2 not to immediately name the appellants to those that came to the scene of the crime. Much as the appellants were present, PW2 reasonably said there were no village leaders present to whom she could comfortably name the appellants. The suspects involved, like John Kajuli were named to the police (PW3) who came soon after the event. In a short rejoinder, Mr. Rweyemamu submitted that given PW l's identification made under unfavorable conditions at the charcoal furnace and PW l and PW2 contradictory identification evidence at the scene of the crime, both pieces of evidence needed to be corroborated by other independent and credible evidence. PW l and PW2's evidence could not corroborate each other. That as there was none to that effect, the appellants should enjoy the benefit of doubt. The law is well settled that on first appeal the Court is entitled to reappraise the whole evidence, form its own impression of it and come to its own findings and conclusion (See, Sultan Seif Nassor V. R., (2003) T.L.R. 231, Ntako Aivan Ntibasubile and 3 Others V.R., Criminal Appeal No. 50 of 1993). Having closely examined the record and bearing in mind the parties submissions, in our considered view, PW1 and PW2's visual identification evidence is central to the determination of this appeal. In a string of decisions, the Court has stated that evidence of visual identification is not only of the weakest kind, but it is also most unreliable and a Court should not act on it unless all possibilities of mistaken identity are eliminated and it is satisfied that the evidence before it is absolutely water-tight (See, Waziri Amani V.R. (1980) TLR 250; Raymond Francis V.R. (1994) T.L.R. 100; R.V. Eria Sebatwo (1960) EA 174; Igola Iguna and Noni @ Dindai Mabina V.R., Criminal Appeal Np. 34 of 2001, (CAT, unreported). Eye witness identification, even when wholly.honest, may lead to the conviction of the innocent (R. v. Forbes, (2001) 1 ALL ER 686). It is most essential for the court to examine closely whether or not the conditions of identification are favourable and to exclude all possibilities of mistaken identification. The evidence reveals that the murder of the deceased involved an interconnected 'series of events that began when PW1 and her husband were guarding their charcoal furnace at or about midnight on 1/6/2007. Having given PW l's evidence at the charcoal furnace and upto the swamp area where she was taken, the scrutiny it unreservedly deserves, one, we would agree with Mr. Rweyemamu that the conditions of visual identification were unfavorable. They were in the bush. There was no evidence that the charcoal furnace generated any light. If anything, little information was led in evidence on the geography or landscape of the area PW1 was raided by the assailants. With these as prevailing conditions, moonlight' by itself was insufficient to assure correct and unmistaken identification of the appellants, even if PW1 knew them before. Although PW1 and her husband were forcefully led to the swamp area, PW1 did not state how close or proximate she was to any of the 15 assailants or who walked in what order or position in relation to her. Two, it is trite that the prosecution is not duty bound to call and examine each and every witness who is acquainted with the material facts of an event or a case. As a matter of prosecutorial discretion, it is entitled to craft its own trial strategy and to choose and examine, which among,its potential witnesses it is confident will establish the foundation or vital parts of its case. Given his constitutional authority and mandate under Article 59 B (2) and (4) of the Constitution of the United Republic of Tanzania and statutory powers under section 16(1) and (2) of the National Prosecution Service Act, No 27 of 2008 the Director of Public Prosecution ougnt to nave an interest in protecting the conviction of the innocent. At times, however, a court may be invited to draw a 'permissible' adverse inference against the prosecution case where a crucial or material witness who is within reach and who could have testified against a critical or decisive aspect of its case is withheld without sufficient reason. (See, Aziz Abdallah v.R. (1991) T.L.R. 71; AN Amsi v.R., Criminal Appeal No 117 of 1991; Mwinyi Jurna Nafaika v.R., Criminal Appeal No. 8.of 1997, all (CAT, all unreported) Considering the seriousness of the charge of murder; vthe unfavourable identification conditions obtaining at the charcoal furnace and the swamp area; the fact that PW l's husband was at the charcoal furnace, and unlike PW l, had his hands tied by the back by the assailants, an act that must have involved proximity with the assailants; was forcefully led toqether with PW1 to the swamp area, and was escorted by a group of assailants without PW1 deeper into the swamp area and managed to disappear, in our respectful view, he was a crucial witness for the prosecution. There was a time while in the swamp area where PW1 was without all the assailants. It may further be noticed that at the preliminary hearing, PW l's husband was listed as one of the prosecution witnesses and no reason, let done a plausible one was assigned for his non-production. With respect, we agree with Mr. Rweyemamu that the trial Court should have drawn an adverse inference that the absentee witness would not * haye assisted the prosecution clear the air about the unfavourably conditions of visual identification at the charcoal furnace and at the swamp area. That said, and for the avoidance of doubt, this does not inevitably or necessarily lead to the collapse of the prosecution case. The evidence as a whole needs to be thoroughly reexamined, as we are further inclined to do before any conclusion can be arrived at. We turn next to PW1 and PW2's evidence at the scene of the crime and thereafter. PW1 said it was the 1st appellant who pulled the deceased out of the house. For PW2, it was the 4th appellant. That aside, it was PW l's evidence that she did not see the 3rd appellant. Furthermore, it was PW2's evidence that she saw PW1 sitting away. PW1 only heard PW2 crying the next morning-. Now, if it is to be taken as these witnesses say 'that the event lasted about two hours and there was sufficient light from the burning house> in our considered view, it remains mystifying that PW1 did not see PW2, who she must have known lived with the deceased. Reappraising their evidence further, PW2 said PW1 was ordered to leave with the appellants. However, PW1 said they told her' to go and sleep at a church that was under construction. Considered a whole, in our respective view, had the learned Judge closely scrutinized the evidence, he would no doubt have found that these contractions and lapses were material and went to the root of the identification evidence and their credibility. The next crucial question that arises is whether or not PW1 and PW2 immediately named the appellants to the villagers or to PW3, all of whom came to the scene of the crime. In Marwa Wanqiti Mwita and Another V.R. T2002] T.L.R. 39 at p. 43, the Court pertinently observed: "The a b ility o f a w itness to name a suspect a t the earliest opportunity is an a ll im portant assurance o f h is reliability, in the sam e way as unexplained delay o r com plete failure to do so should p u t a prudent Court to inquiry". Again in Jaribu Abdallah V.R. (2003) T.L.R. 271, we held: "In m atters o f identification, it is not enough to m erely look at factors favouring accurate identification, equally im portant is the cred ib ility o f the witness. The a b ility o f the w itness to name the offender a t the earliest possible m om ent is a reassuring, though not a decisive factor". PW2 said she could not name the appellants who were there all present at the scene of the crime that morning as they had come with John Kajuli, and there was IIU u u i c i v u ia y e icciu e i picsei n. rv v z. b uvvn e v iu e n u r reveals that some villagers had come because they saw fire light, and women from the hamlet were the first to come to the deceased's house. Given the events as they unfolded and the grief she must have been in, we are of the settled view that that earliest opportunity was convenient for PW2 to confide in her fellow women. After all they were brave enough to be the first to rush to her alarm. PW3 came to scene of the crime at 1pm on 2/6/2007. The Only suspect who was named and arrested on the spot was John Kajuli. PVV3 who had 25 years experience as a police officer did not specifically mention who among the appellants was expressly named to him. The 2nd, 3rd and 4th appellants testified that they were there. PW2 agreed. The 3m appellant had attended the deceased's funeral. The 1st appellant was arrested on 29/6/2007, while visiting John Kajuli at Kayanga prison. The 2nd, 3rd and 4th appellants were all arrested a month after the incident. In its Judgment, the High Court relying on PW3's evidence held, that the appellant's conduct of escaping from the village corroborated PW1 and PW2's evidence that they were involved in the commission of the offence. With respect, PW3 gave at best vague statements that some suspects had gone into hiding. He did not give any details of any search efforts made by the police and against which precise appellant. This reinforces the fact that apart from John Kajuli, the appellants were not immediately named by PW1 and PW2 at the earliest possible opportunity to the police, far if they did, PW3's evidence would have been more forthcoming on the precise search efforts made by the police against each of the appellants. In these circumstances, with respect, the High Court was not entitled to hold as it did. Having closely re-examined the totality of the evidence and cautious of , the seductive effect of visual identification evidence, we are of the settled view that PW1 and PW2's evidence had omissions, deficiencies and contradictions of a material nature. Moreover, this dented their credibility. The evidence viewed as a whole does not convincingly exclude all possibilities of mistaken identification. In these circumstances, it would be unsafe to uphold the appellants' convictions. We, therefore, uphold the. appellants' two grounds of appeal and proceed to allow the appeal by quashing the conviction and setting aside the Sentence imposed on each of the appellants. They are to be set free forthwith unless anyone of them is held for any other lawful cause. DATED at BUKOBA this 28th day of February, 2014. M. C. OTHMAN CHIEF JUSTICE B. M. LUANDA JUSTICE OF APPEAL K. M. MUSSA JUSTICE OF APPEAL I certify that this is a true copy of the original. Z. A. MARUMA DEPUTY REGISTRAR COURT OF APPEAL