20141215 TZHC Dar es Salaam

--... . ... IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CRIMINAL APPEAL NO. 14-9 OF 2014 ( original criminal case no. 385 of 2012, District Court of Morogoro at Morogoro) 1. JUMA MANEVA 2. KHAMIS KHALIFA@ZUNGU 3. ABDALLAH HAMISI VERSUS REPUBLIC KOROSSO W.B, J. , JUDGMENT Juma Maneva (1st appellant), Khamis Khalifa @Zungu (2nd appellant) and Abdallah Hamisi (3rd appellant) were prosecuted and convicted for 1 the offence of Armed Robbery contrary to section 287(A) of the Penal Code, Cap 16 [R.E 2002] at the District court of Morogoro, at Morogoro and each appellant was sentenced to thirty years imprisonment. The appellants being aggrieved by the conviction and sentence meted appealed to this Court. It was alleged that on the 29th of July 2012 at around 23.OOhrs at Magera Ngerengere within Morogoro District in Morogoro Region the appellants persons break into the house of Saito Mbaraka and steal Money worth Tshs 220,000.0, a bag of clothes valued at Tshs. 300,000.0 and 60 mobile phones belonging to one Saito Mbaraka and immediately before the stealing did slash Saito Mbaraka on his head and arm using a bush knife to facilitate the said stealing. The acts of violence were designed to obtain and retain the properties they had stolen. Aggrieved by the decision of the trial court, the appellants preferred and appeal to this court, filing a petition of appeal containing eighteen grounds of appeal. At the hearing of this appeal, the appellants appeared in person while Mr. Katuli, learned State Attorney, appeared for the respondent Republic. The learned State Attorney at the outset took a stand not to support the conviction of the appellants and the consequent sentence. This court's review of evidence meted in court which led to the conviction of the three appellants shows that prosecution led evidence that, on and at the material time of the attack, Saito Mbaraka and his wife was sleeping when he heard the sound of a gunshot from outside the house 2 followed by four armed people (the appellants) breaking in the house and entering. apart from being cut with the bush knife, Saito Mbaraka was also beaten by a club stick on his back leading to his falling down. The prosecution evidence was also to the effect that the appellants were known to the witnesses PWl, and that it was easy to identify them because the house uses solar power. Despite raising alarm by PW2 neighbors did not come to assist them from fear of the gun shots as the bandits were shooting in the air. It was after they had left that the wife assisted PW 1 outside and neighbors then came to assist and then he was rushed to the hospital for treatment. During the appeal, the appellants preferred to stick to the grounds of appeal filed which had eighteen grounds of appeal, we preferred to consolidate the grounds as they basically addressed the following issues: First, that the trial magistrate erred in law and fact by relying on the evidence on identification of the accused in circumstances which were unfavorable for proper identification bearing in mind the fact that it was at night, and the issue of intensity of light was not clearly defined. The appellants disputed the visual identification evidence and the recognition evidence upon which the conviction was founded by the trial court. The second issue, being witness inconsistencies and contradictions in their testimonies before the court, that the trial magistrate erred in law and fact in relying in such evidence. The third issue raised by the appellants is that the prosecution failure to tender in court important exhibits such as alleged weapons to have been used at the scene of crime, weakens the prosecution case. Fourth, the appellants submitted that the prosecution 3 had not proven its case beyond reasonable doubt therefore the trial magistrate should have given the benefit of doubt to the appellants and fifth, that trial magistrate erred in law and fact in his failure to consider the evidence of the appellants as it raised doubt to the prosecution evidence and gave plausible explanation of facts. All the three appellants decided to stick behind the grounds of appeal before the court and respond after hearing the respondent republic. The respondents republic represented by Mr. Kakuli, who did not support the conviction and sentence meted by the trial court. On the ground of appeal related to identification, did not dispute the fact that the alleged incident occurred at night relying on the evidence of PW l, PW4 and PW5 all of whom were victims of the crime and all of whom had stated to have known the appellants prior to the attack/break-in. It was the submission of the republic that the evidence on identification did not satisfy the standard required. That despite the fact that the prosecution witnesses who had stated they identified the appellants because they knew them from before, such identification is supposed to be watertight leaving no shadow of doubt. That the prosecution witnesses never explained on the intensity of light, providing type and size of lamp and intensity to enable one to know the level of intensity of the said light which warranted them to identify the assailants who had attacked them. The court was referred to the case of Kulwa Makwajape and 2 Others V. R, Criminal appeal no. 35 of 2005, CA, Mwanza Registry. which lays out the importance of intensity of light and the court stated that the intensity of 4 light is important and also to highlight the type of light. The respondent republic also addressed the issue of inconsistencies and contradictions in the testimonies of the prosecution witnesses in discussing identification of the appellants. Whilst PWl had stated that he saw four people who broke into the house and stole and injured him, stating that the four people included the three appellants and another person by the name of Sele, PW4 had stated that she saw three people and PWS stated he saw three people. The learned state attorney contended that such contradictions in the evidence of prosecution witnesses on identification left doubt in the evidence of the prosecution on the said fact in issue. The Respondent republic further stated that there were other contradictions such as where PWl stated he saw the 1st appellant holding a bush knife "sime", but PW4 on the other hand in his evidence stated that he saw the 1st appellant with a club "gongo". While PW 1 said he saw the 3rd appellant with the club and Pw4 said the 3rd appellant had the bush knife. The learned State Attorney argued that the said contradiction leave doubt on the evidence of the prosecution, not only on identification but also on the credibility of the witnesses. The court was referred to the case of Doroviko Simeo vs. Republic, Criminal Appeal no. 256 of 2008, CA, Mwanza Registry, where the court quoted with approval the case of Bahati Mackeja vs. R., Criminal Appeal no. 118 of 2006, CA, where the court addressed the issue related to contradictions in evidence of prosecution witnesses. 5 Mr. Kakuli learned State Attorney propounded that thee narrated contradictions went to the root of the matter therefore they were serious. The other issue, leading to the position presented of not supporting conviction and sentence, was failure of the prosecution witnesses to name the appellants as those who had arrived and committed the crime to those who had arrived immediately thereafter at the scene of crime. That PW4, who had been the first one to assist PWl had not been told the name of the assailants. the case referred to support this, was John Gilikola vs. R., Criminal Appeal no. 31 of 2009 CA, Mwanza Registry. In this case they quoted with approval the case of Marwa Wangiti Mwita and another vs. R., Criminal Appeal no. 6 of 2005, where the court of Appeal reiterated the importance of naming the assailants at the earliest possible opportunity to show truthfulness and credibility. Also there is no explanation of the delay to arrest the appellants if they were well known as testified by PW 1, the delay raises doubt on whether they were really known and their names given to the police at the earliest possible time. The case of Kulwa Makajape and 2 others vs. R (he could not remember the citation) was referred to, where the court had stated that, unexplained delay in arresting an accused person where it is alleged the accuseds are well known brings doubt to the identification. Therefore the respondent republic prayer was for the court to allow the appeal. The appellants had nothing further to say in response to the learned state Attorney submission just prayed for their appeal to be allowed. In the instant case, being the first appeal, it is the role of this court to consider the grounds of appeal, and in doing that to also scrutinize, 6 analyze and evaluate the evidence upon which the conviction of the appellant was based. Suffice to say in the trial court, all the appellants had raised defenses of alibi, the first appellant stating that on the date of the commission of the said crime he was at hope sleeping with his son as his wife had gone to a funeral and that he had been arrested on the 17th of August 2012. The second appellant, had told the trial court he knew nothing of the charges facing him. The third appellant defense in the trial court he had been at his home. The offence for which the appellants were charged and convicted is Armed Robbery contrary to section 287 A of the Penal Code, Cap 16 of the laws which states interalia " A person who steals anything, and, at or immediately before or after stealing is armed with any dangerous or offensive weapon or instrument, and at or immediately before or after stealing uses or threatens to use violence to any person in order to obtain or retain the stolen property, commits and offence of armed robbery and shall, on conviction be liable to imprisonment of a term of not less than thirty years with or without corporal punishment." Therefore looking at the above quoted provisions it is clear that in order to prove the offence of armed robbery, possession of and use of weapons is important or using or threatening the use of violence to facilitate commission of stealing. It is expected that in any trial of armed robbery the trial magistrate needs to analyse the evidence before him and whether the ingredients of the offence charged have been proven beyond reasonable doubt. It is unfortunate that the trial court did not 7 make any attempt to deal with ingredients of the offence of armed robbery during the analysis of the evidence in relation to the points for determination as required by S. 312 ( l) of the Criminal Procedure Act in preparation of a judgment and only dealt with queries raised by the defense on doubts in the prosecution evidence. This being the first appeal, despite this failure can be dealt with because we feel that there is sufficient material of the record to enable the court to consider the appeal on merits and to proceed in line with what was stated in the case of Wilv John vs. R. (1956) 23 E.A.C.A 509 quoted with approval in the case of Watende Sultan Mwingo and 3 others, Criminal Appeal no. 233 of 2012 (unreported). It is a common ground that the convictions of the appellants were founded on the evidence of visual identification. The evidence before the court leaves no doubt that PWl s house was invaded on the thick of the night, and that he was robbed and injured. They were 3 witnesses to the invasion, PWl; PW4 and PW5, they all stated they knew the appellants before the incident/house break in and assault. Determination of this appeal is· very much grounded on the question whether the appellants were identified at the scene of the crime and whether the prosecution had proved its case beyond reasonable doubt as against the appellants. In this case the trial magistrate properly directed himself on the . requirements of law when an offence is committed during the night as can be seen when he was analyzing evidence of both parties by stating "it i$ conditional principle that before convicting an accused person the 8 court has .to make sure that the evidence is watertight that there is no mistaken identity of an accused person. There are conditions which have been spelt out like the condition in which the accused person was identified, was it in the night or during the day, the distance between the witness and an accused person, the time within which the witness used to identify the accused person and whether or not the accused person was known to the witness before the occurrence of the crime?" and he went on and made a finding that since PWl, PW4 and PW5 knew the accused persons before the incident, and that PW 1 evidence was to the effect that he had ample time to watch the assailants when he had been hit and fallen down, and there was light from the solar power in the house. The other factor was the evidence of PW 5 who stated he took the assailants to the shop room after demanding to be shown, therefore he too spent some time with the assailants. The learned trial magistrate also had time to go through the statements of witnesses to the police and restated what was written saying the statements expressed the fact that PW 1 had identified the bandits and mentioned their names. That the statement to the police said the bandits also had torch, he further stated that the issue of solar power was not stated in the witness statement to the police. From the analysis of the evidence of the witnesses it is clear that the trial magistrate found the prosecution witnesses to be credible and found any inconsistencies to be minor. On examination of the evidence, this court is of a similar view with that expressed by the learned trial magistrate that any inconsistencies 9 ·I and contradictions in the evidence of the prosecution witnesses where minor and we concur with the findings of the trial magistrate on this. In this appeal, on the question of identification which is an important matter to determine as often restated by the Courts including those of higher stance, evidence of visual identification is the weakest kind and most unreliable. Trial courts are enjoined to refrain from acting on such evidence unless all possibilities of mistaken fact. It was PWl, PW4 and PW5 who had mentioned the names of the appellants as being the assailants on the date of the commission of the crime. Secondly, on the question of intensity and sufficiency of the light for purposes of visual identification and recognition of the appellants, we should bear in mind the fact that although closely interlinked, visual identification and recognition are two distinct processes. (refer to the case of Watende Sultan Mwingo and 3 others vs. R., Criminal Appeal No 233 of 2012, CA, Dar es Salaam Registry) (unreported). On visual identification, the evidence of PWl, PW4, PW5, in essence implies there was sufficient light from the solar power use, which enabled those witnesses to actually see the appellants at the scene of crime. Sufficient light is also important for recognition to the effect that PWl, PW4 and PW5 actually saw the appellants at the scene of crime and immediately recognized them as persons they are familiar with. The fact that the trial magistrate found PWl, PW4 and PW5 to be credible witnesses which this court have decided not to fault, and they stated that 10 there was sufficient light from solar power. The fact that, according to the trial magistrate, the existence of solar power was not stated in PWl statement to the police, as per the trial magistrate finding, which is not really an issue here, relying on the evidence of. PW 2, the police officer who had stated he saw the solar power when examining the scene of crime, that by itself in the absence of description of available light, does not in the opinion of this court address the question whether there was light of sufficient intensity to facilitate visual identification of the appellants and their subsequent recognition. Even if the court was to accept there was solar power, , there was no description of the nature and intensity of the solar light to assist the court to understand whether there was sufficient intensity to leave no doubt on the identification and recognition. (Refer to Waziri Amani V. R (1980)TLR 252) and in Kasim Said and 2 others v. R., Criminal Appeal No. 208 of 2013 (Unreported)where the court of appeal emphasized the need for trial courts to determine sufficiency of the light for purposes of both visual identification and recognition. In the case of Magwisha Mzee and Anor v R Criminal Appeal no 465 and 466 of 2007 (unreported), the court stated "when it comes to issues of light, clear evidence must be given by the prosecution to establish beyond reasonable doubt that the light relied on by witnesses was reasonably bright to enable the identifying witnesses to see and positively identify the accused person. Bare assertions that "there was light would not suffice" and in the case of Issa Mgara@Shuka v. R Criminal Appeal No. 37 of 2005 (unreported), it was held that even in recognition cases where such evidence may be more reliable than identification of a stranger, clear 11 evidence on source of light, and its intensity is of paramount importance. This is because even in recognition cases mistakes are often made. On recognition, there is also the case of Anoe/ Sambo V. R., Criminal Appeal no. 274 of 2007 (unreported), where the court stated that , the fact that a witness knew the suspect before the date is not enough. The witness must go further and state exactly how he identified the appellant at the time of the incident, say by his distinctive clothing, height or voice. From the above position it our case it is clear that the evidence does not meet the condition set. The identification of the appellants by the prosecution witnesses did not provide enough details as required to leave no room for mistaken identity when also ground it with the issue of the evidence inability to satisfy this court on the sufficiency of the light and intensity for visual identification. The other issue of concern for this court, was the fact that it is disturbing that there was no witness who came before the trial court and described the fact that either PWl, PW4 or PW5 had described and or mentioned the names of t-h·e assailants to the neighbors immediately after the .. ♦ .. - incident. PW2,,.wh;. had questioned the neighbors, who had arrived at the ., scene to assist those. injured at the scene of crime, there is no mention, that PWl, PW4 and PW5 had mentioned any names, it was until he saw PW 1 when he was still at the hospital, that when he heard the names of the assailants. 12 Having said that and all in all we find that there are doubts in the prosecution case, we do not think that all possibilities of mistaken identity were eliminated and that the evidence against the appellants is absolutely watertight. In the result, we allow the appeal, quash the convictions and set aside the sentences. The appellants shall be set free unless held on other lawful charges. ,. 15th December 2014 Judge 15/12/2014 i' 13 '7 ·····' ,, .,(,,..:.,:·.•· r . .., \.._ .,, - ,.,." ..J rI,.... f ', "';"1 11 ("\ € ..,. ,- - i,., ,., "-": ./ . • ...,.. I ..... , . ,.. .. ..... - ;~t l., -' .... .__ _J .J •-. -· ........, ,., ~ -·' :-1 "" - z. ·, L. C ..., , . .' ,,,. --r ... i ; ' ; ._-· '~· ..... '\ (" - -- ,i - -· \..:> L L- '' -, ~1 '7""' .• ,:; ._ l.> ,:) f;J '-. ·.. \ J I,._ j u