20140612 TZCA Tabora

,7 - . --- _:..i.:::tifp.i-.....!.L o.::...~.~..:oc1!::z:::z3l.~-Y' ~!-.lJ:"'.1,..-::--~--~~ ~~ ~~,.,.:...'.?f'2~~~!1, . . - ~~1 1 ...' ~ _ ; : . . , --·:~.•;:. L ·::; . . IN(THE"COURT.Of:APP.EAL O.E TANZANIA · AT TABORA (CORAM: MBAROUK. J.A .• MASSATI, J.A., And MUSSA, J.A.) CRIMINAL APPEAL NO. 74 OF 2009 1. ZENGO S/O MAHEMA } 2. ANDREW FRANCIS 3. JUMAPILI JUMA@ KAMNANI .......................................... APPELLANTS 4. MAGINA MADUGULU VERSUS THE REPUBLIC ...................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Tabora) (Kaduri, J.) dated the 28th day of January, 2009 in Criminal Case No. 146 of 2008 JUDGMENT OF THE COURT th th 9 & .13 June, 2014 MASSATI, J.A.: Before the District Court of Igunga in Tabora Region, a total of 5 persons including the appellants herein, were charged YJith and convicted of three counts, namely; conspiracy to commit an offence; armed robbery and gang rape. The trial court sentenced them to 2 years, 30 years and life imprisonment for the said counts respectively; plus 12 strokes of the cane, for all, but the life imprisonment was for these appellants. On first appeal, the High Court quashed the convictiqns on counts one and three in respect of all the appellants and except for the first accused person at the trial, 1 whose -conviction for robbery was also quashed, the convictions of the appellants herein for the c;:ount of robbery were upheld. This appeal is an .' attempt at assailing that finding of the High Court. • . The charge laid at the doors of the appellants was that, on the 4th June, 2007 at 1.00 hours, at Mbutu Village, in Igunga District these appellants robbed a shot gun belonging to Joseph Petro by use of physical . force on one Masanja s/o Lutambi, in order to steal and retain the gun. At the trial, it was established that PW1, JOSEPH YASUBA, the owner of the_gun was, on the material night, attending a mourning session, in the neighourhood. He had left the gun in question in the security of a wooden suit case in his bed room where his wife, MARIAM GODFREY (PW2) was sleeping. It was also established that on that night, PW1's house was invaded and the gun was stolen after applying force on PW2. Apart from PW2, PW3 MKAMBA d/o JOSEPH and PW4 MASANJA NTAMBI were also injured in the course of the commission of the offence. PW1 was sent for that same night, and briefed of what happened. The matter was eventually reported to the local authorities and then to the police who investigated the case ·and arrested and charged the appe~lants and another one as shown in the preface of this judgment. 2 put up by the appellants~ the trial court found that the appellants were " properly identified, and entered the. convictions. The High Court agreed • that the appellants were adequately identified, but disagreed with the trial court's findings on the first and third counts. In approving the trial court's finding on the identification of the appellants; the learned judge on first appeal, remarked:- "The trial Court took into consideration the time taken at the place of the incident the proximity between the identifying witnesses and the appellants and the source and intensity of the light that helped the identification of the appellants. " and concluded that:- "I think the trial magistrate correctly directed his mind to the issue of identifications.... " It is toward this finding that the appellants have decided to wage a war. 3 ~, . In this CoI,Jrt, the appellants hav,e. -appear~d to argue the appeal •.in person. :Each of ,them has filed a ·separate memorandum of appeal with .:at ; least 6- grounds each, the major one and com_mon to _all, being that the ,. .. two courts below wrongly relied on the evidence of weak visual identification. Others include; that the prosecution case was discrepant and unreliable, coming from members of the same family; and that the prosecution case was not proved beyond reasonable doubt. In their respective memoranda of appeal, the appellants also referred to a number of decided cases as authorities. These include, BAHATI MAKEJA V R. Criminal Appeal No. 118 of 2006; SWALE KALONGA & MAKOYE SOWi V R. Criminal Appeal No. 46 of 2001; SAIDI CHALLY SCANIA V R., - Criminal Appeal No. 69 of 2005; GERALD LUCAS V R. Criminal Appeal No. 220 of 2005; NKESHIMANA JOHN @ DIODONE V R. Criminal Appeal No. 229 of 2005; MT 38350 PTE LEADSMAN M~GERESI V R., Criminal Appeal No. 93 of 1988, and JAMES CHILONJI V R. Criminal Appeal No. 101 of 2003 (all unreported) as well as MOHAMED ALLUI V REX, (1942) 9 EACA 72; CRISTIAN KAALE & ANOTHER V R. (1972) TLR 302 · MOSHI D/O RAJABU V R. (1967) HCD. 384 and EDWIN MHANDO V R. (1993) TLR. 170. In elaqoration, the appellants argued that their convictions were based on hearsay evidence and that they were not 4 . identified, The fourth·appellant µ>ointed.oot that/a1though he was a tenant in their house, PW2 was not able to mention his n·ame to those who first ,- . . responded to the alarms. They . thus prayed that their appeals be allowed. Mr. Juma Masanja, the learned State Attorney, who appeared for the respondent/Republic did not support the convictions, but supported the app~al. It was his view that the evidence of visual identification relied upon by the lower courts was wanting. He went on to point out a number of discrepancies in the said evidence. Firstly, premised from the fact that the · offence was committed at night, it was his view that the evidence of there being sufficient light was questionable. This was so, because, although there were chimney lamps, their intensity was not disclosed. The use of torches by the alleged thugs further suggests that the light from the chimney lamps was not sufficiently luminous. Secondly, the witnesses of identification namely PW2, PW3 and PW4 were all terrorised and it was doubtful whether they could make proper identification in the circumstances. Thirdly, PW2, PW3 . and PW4 neither described nor mentioned the suspects to the persons who first responded to their alarms. Those include Msengi Mwahi, who never testified. This erodes the credibility of the identifying witnesses. For that he referred to us, the 5 wrong for the first appellate court to, have . used double standards in .· evaluati_ng the credibility of PW2 by finding her a truthful witness, b'Ut also ., . '• not believing her that she was raped. It is for those reasons that the learned State Attorney urged us to allow the appeal. From the submissions of the parties, it is clear to us that the main issue in this appeal is whether the appellants were properly identified and whether the prose.cution case was proved beyond reasonable doubts to justify their convictions. It is trite law that evidence of visual identification is of the weakest kind and most unreliable and should not be acted upon unless all possibilities of mistaken identity are eliminated and the court is satisfied that the evidence before it is absolutely watertight. (See WAZIRI AMANI V R. (1980) TLR 250). It is equally settled law that even in cases of recognition, that evidence must also be watertight (See HASSAN JUMA KANENYEZA V R. (1992) TLR. To safeguard against mistaken identity, the Court, has over the years, developed a number of safeguards, which have now crystallised into rules of law. These include:- 6 clear evidence must be given on the type tand •.• intensity of the light. (See WAZIRI AMANI V • R. (1980) TLR 250) (ii) An identifying witness is expected to name or describe the suspect(s) at the earliest possible time to the nearest person(s) and those other person(s) should also testify (See MOHAMED ALLUI V R. (supra) JARIBU ABDALLAH V R. (supra) MARWA WANGI AND ANOTHER V R., Criminal Appeal No. 6 of 1995 (unreported). (iii) Under normal circumstances it is not easy for a person toward whom a torch is flashed to identify -the person flashing the torch at him/her (See ANGEL SAMBO V R. Criminal Appeal No. 274 of 2007 (unreported) (iv) It is not enough for conditions of identification to be favourable. Equally important is the 7 ABDALLAfl V R.· (sµpra) ; The above list is not exhaustive, but we think they may safely be applied in • ,ol - • the present appeal. We accept that, the evidence of visual identification of the appellants in this case, comes from the testimonies of PW2, PW3 and PW4 which the lower courts found credible. We are alive to_ the fact that, as a matter of principle, in a second appeal like the present one this Court would rarely interfere with the concurrent findings of the lower courts unless there has been an incorrect appreciation of the evidence or a misdirection on a point of law or principle, and thus a misapprehension of the substance, nature and quality of the evidence leading to an unfair conviction (See SALUM MHANDO V R. (1993) TLR. 170). ISAYA MOHAMED ISACK V R. Criminal Appeal No. 38 of 2008 (unreported). In the present case, first, the credibility of PW2, PW3 and ·pw4 who claimed to have recognised the bandits is dented by their failure to name the ·suspects at the earliest opportunity, which we agree with Mr. Masanja, was, in our view, to the neighbours who first responded to the alarm, . immediately after the incident. Both PW2 and PW4 claim that they named 8 . . the suspects;tb:'.'f?W1'..b~t,1there.<:is':no explahati.on1oh why they had to wait · -:·:- ,f '"·.< for PW1 in order to menti.on · the suspects. This, makes such evidence . suspect. Secondly, the in1:ensity ·. . of the light from the chimney lamps which all the witnesses claimed was the source of the Hght which enabled them to see the suspects is not at all convincing. This is explained by the fact that the bandits had to switch on torches to get a clear vision of their victims and make their demands. The proximity test which both courts accepted as another factor that enhanced their visibility is shattered by the fact that the first appellate court did not believe that PW2 was raped. Against the finding on the charge of rape, the learned judge on first appeal said:- 11 The last count of gang rape is doubtful. · For 4 people to rape the same woman in turns, it would take sometime. We are not told for how long this rape took'~ This shows that the High Court did not believe PW2. As the rape was one of the factors that the trial court used in determining the time and proximity between the robbers and PW2, which the High Court had, earlier on found to be a correct direction, this turn about is not consistent with 9 ··".::--,appeal .. We ither.efore· quash1 the conviGtions and ~-set aside the sentences · imposed·.upon the _appellants. We order their immediate release from custody unless they are othe(wise lawfully held: DATED at TABORA this 1th day of June, 2014. M.S. MBAROUK JUSTICE OF APPEAL S.A. MASSATI JUSTICE OF APPEAL K.M. MUSSA JUSTICE OF APPEAL