20151028 TZHC Mwanza

. ~'- . --:::~ ~, ,,. :<if .• ' / 1-., - ·~--~ti"~ ...... . ~-. Ir ' ·..:~... ''-:~ .';'".,,,..,~:--: .•;,:1,::, . · •-..'/''. -· · . IN THE HIGH COURT Of TANZANIA i'.; .... 4 . IN THIE DlSTRICT REGISTRY OF MWANZA AT MWANZA H.C. CRIMINAL APPEAL N0.91 _OF 2014 ·(Originating from the Judgment/Decision of the District Court of Misungwi at f'viisungwi · in Criminal Case No. 57 of 2012 dated 02/04/2014) REVO.CATUS JOSEPH .................•................·................. APPELLANT VERSUS . . THE REPUBLIC.~ . ......................................... . e•••••••••••••• RESPONDENT Hearing: 21/09/2015 Last Order: 21/09/2015 JUDGMENT MAKARAMBA, J.: · This is Judgment on appeal from the Judgment of the District Cour:t of Misungw1 dated 2nd April, 20i4 before Hon. Mwambapa G.A. Esq RM. Briefly, the Appellant was charged _and prosecuted in the District Court of Misungwi for the offence of armed robbery contrary to section 287A.of the Penal Code [Cap.16 R.E 2002] of the Laws of Tanzania as amended by Act No.4 of 2004. The Appellant was convicted and sentenced to serve 30 years in prison. The Appella.nt was be~n aggrieved by both the conviction and sentence of the District Court of Misungwi and appealed in this Court on six grounds, namely; 1. That the lower Court erred both in law and facts to -convict the . . . . appellant basing on identification made through the wick lamp were · insufficient for correct identification of a suspect Page 1 qf 19 ., 2. That the lower Court had erred in law and facts for being lured to convict the Appellant. Relying of. visual identification whose elementary factors were. not sufficien_t proved and furthermore no description of the invader was given. 3. That, no any identification made at the police station as required by . . section 60(i) of the Criminal Procedure Act. [Cap.20 R.E 2002] regarding the _identification alleged made previous at the camp was doubtful as conducted contrary to the guidance outlined in the Police General Order No. 232. 4. That the alleged rightshoes which found at the locus in quo was not suffice to connect the Appellant with offence charged regarding no . any search warrant or the certificate of seizer had ever given during the hearing as required by mandatory principle of section 38(3) of . Criminal Procedure Act Cap. 20 R.E 2002 in order to establish if the . Appellant was arrested with another left shoe at the camp as claimed by the prosecution side. 5. That, the a/legations of PWJ who safd recorded the statement of the Appellant wherein agreed to be participated in that event were not supported.by tendering the purported Cautioned 5_tatement Page 2 of 19 . _.... _- _,:.. ) ,, 6. That the trial Court failed to evaluate the credibility of prosecution ,..., witness(s). Appellant prays to be set free. In arguing the. appeal for the Respondent M/s Gisela,· learned State Attorney appeared. The Appellant,. Revocatus Joseph appeared in person. The Appellant adopted the grounds .of appeal in the Petition. of Appeal to form part of his submission in chief and made some additional arguments that, the_ charge was framed against him becau$e he was accused of having involved with the wife of one of the key witness. The Appellant stated further that, on the night of the event, he was at home whereupon $Orne youths went to him and took him to the scene of the crime and started beating him up and that is how he got framed up with the offence of armed robbery for which he was _sentenced to 30 years imprisonment. In her reply, M/s Gisela started by giving a general overview of the case for the Respondent that, at the trial court, evidence of visual . identification was .relied upon to convict the accused. M/s Gisela submitted . · further that PWl, ·samson Yusuph, identified the accused at the crime scene. According to M/s Gisela, the identificatiori was properly made as per the factors mentioned in the famous case of Waziri Amani v. Republic, · [1980] TlR 250. M/s Gisela submitted further that at the time of the .. event, t~ere was light from a lit lantern which light was suffi_cient to enable Page 3 of 19 p-. the accused to be identified. According to M/s Gisela, considering that, it was in a village setting and the area was small, it was therefore easy for the accused to be identified properly. M/s Gisela submitted further that, the Appellant as_saulted the ·wife of the victim and that is when PWl came to the assistance of his wife and managed to identify the- acc_used. Furthermore, M/s Gisela submitted, PWl managed to identify the accused because he (the accused) used to frequent the kiosk where PWl and his wife used to sell smai°I h_ousehold items and therefore the accused was not a stranger to PWl. M/s Gisela submitted further that even upon calling for assistance, PWl told the people who had assembled at the crime scene that he (PWl) knew the accused although not by name but the accused used to come to the kiosk from a Camp operated by a company owned by an Indian businessman. The victim therefore knew the accused and there could be no mistaken identity, M/s Gisela surmised-. Replying to the 1st and 2nd grounds of appeal jointly, M/s Gisela submitted that, at the scene -of crime, PWl managed_ to identify the accused due to the lit lantern light, the time they spent with the accused and the fact that the accused was not a stranger to PWl as he (accused) used to frequent PWl's kiosk. M/s Gisela submitted further that the people who had gathered at th·e crime scene went to the camp of the Indian businessman, which was located about 11h km from "the crime scene, and upon finding the foreman and expla_!n to him what had happened,_ the . . . fo_reman ordered all the employees to li_ne up with t~eir pair of shoes and that is how P"'(l managed to identify the accused. Page 4 ?f 19 ) M/s Gisela submitted further that, at the time of the event, the accused person who was weadng shoes, upon taking off from the crime scene dropped his r_ight foot shoe at the crime scene. It was the further submission of M/s Gisela that .at th~ Camp, the villagers who had gone there in the company of the Village Chairman asked the accused to bring out all of his shoes, but he managed to bring only one left foot shoe, which ~atched with the right foot shoe which had been dropped at the crime scene. According to M/s ·Gisela, this was a proper identification. The matching shoes were taken to the police and tendered in evidence at the _ trial without contest and admitted as Exhibit Pl. M/s Gisela submitted further that, the act of PWl mentioning the Appellant at the earliest opportune moment when the Villagers and their leaders arrived at the crime scene, add weight to the evidence of identification. In support· of her submission, M/s Gisela referred this Court to the decision in the case of Jaribu Abdallah v. Republic [2003] TLR . 271 where the Court directed that, in matters of identification, the Court · may look at the credibility of the witness where he managed to mention the accused at the earliest opportune mome_nt, which is admissive factor in the truth of the matter, thus adding weight to identifying the accused indeed PWl did. This appeal raises the pertinent issue of identification evidence. The offence with which the appellant was charged, convicted and sentenced is a serious one, armed robbery, contrary to section 287A of the Penal Code .. . . [Cap.16 R:E 2002] which carri_es_ a minimum_ sentence of _thirty years (30}. ·in prison. The relevant . provision of the law upon on which. t~e offence.. of l~-- . Page 5 of 19 ) -armed robbery is grounded, section 287A of the Penal ·code [Cap.16 R.E 2002], which was brought about by Amendment Act No.4 of 2004 to the Penal Code, Cap.16, provides as follows: "287A. Any person who steals anvthinq, and at or immediately after the time of stealing is armed with any dangerous or offensive weapon or instrument or is in company of one or more person~ and at or immediately before or immediately after'.the time of the stealing ·uses or threatens to use violence to ·any person, commits an offence termed ''armed robbery" and on conviction is liable to imprisonment for a minimum term of thirty yeqrs with or without corporal punishment "(the emphasis is of this Court). In proving the offence of armed robbery, the -prosecution has to establish each and every elements of the offence of armed robbery. The prosecution must lead evidence to prove that indee~ there was ·something stolen, and that, at or immediately after the tim_e of stealing the accused was armed with any dangerous or offensive weapon or instrument or is in company of one or more person~ and that at or immediately before or immediately after the time of the stealing ·the accused used or threatened to use violence to the victims. · In this appeal, the facts as could be gathered from the record of the proceedings of the lower trial c~_urt reveals that the event happened on th~ night of 16/05/2~12 at 21.30 hrs., .at the b~siness kiosk of P.Wl. As per _ his te~ti~ony, P\A/1 and his wife were invaded qy _an assailant who cut his ./~-----_ Page 6 of 19 .· .. ·. wife with a panga in her face and fell down, and that PWl came to her · assistance a·nd wrestled with the assailants who overpowered him and also cut him on his left palm as per the PF3,. Exhibit P2. It was the further testimony of PWl that, the assailant made away with .Tsh.40,000/= which according to PWl was in a drawer and that, in the fracas the assailant while running away from the crime scene, dropped his right foot shoe at the crime scene. The crux of the matter in this appeal was the alleged identification of the assailant by PWl at the crime scene on .the fateful night of 16/05/2012. The pertinent issue for consideration by this Court is whether PWl properly identified the . assailant at the. crime scene and whether the evidence of PWl was watertight. There are three forms of . identification evidence: positive identification as direct evidence, positive identification as circumstantial evidence and. circumstantial identification evidence. In the present case, PWl claims that he identified the accused/appellant at the crime scene. Where a witness claims to recognize . . the ·accused as the person seen on an occasion that is relevant to the . charge., as is the case presently, this is positive identification. A. positive identification of the accused may be used as direct or circumstantial proof . of the ch~rge. Where, as is the case presently, a witness claims to have identified the accused as the ·person who committed one or more of the acts that constitute the crime in question, then it becomes d_irect positive identification. It is worth noting here that identification evidence is one of .. . the most unreliable forms of evidence and the weakest This was observed Page 7 of 19 by the Court- of Appeal in the now celebrated case Waziri Amani vs. The Republic [1980] TLR 2S0 at pages 251-252 thus: " The evidence of visual identification is of the weakest kind and most· unreliable. It follows therefore/ that no Court should act on evidence of visual identification unless all possibilities of mistaken identity are eli17Jinated and the Court is fully satisfied that the evidence before it is absolutely water tight" Visual identification evidence is often unreliable evidence because human perception and recollection are prone to error and capacities of individuals to remember sights and sounds vary enormously. The classical case on identification evidence is Amani v. Republi~ [1980] TLR 250, which M/s Gisela cited in her reply submissions. In that case the Court of Appeal of Tanzania observed that there are no hard and fast rules laid down as to the manner a· trial judge should c;letermine questions of identity. In that case, the Court also called _for "careful considered analysis of all surrounding circumstances of the crime being tried" before found a conviction on identification evidence. The Court then remarked as follows: "... We would for example expecC to find in the record questions such as the following posed and resolved by him/ the time the witness had the accused under observation/ the distance at which he observed. him/ the conditipns in which such observation occurred _for instance/ Page 8 of 19 ,v-- ) 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 // Clearly what seems to be happening in many cases, and the present one is no exception, where the issue of identification evidence comes for consideration, the prosecution seems to adopt more or less straight jacket approach in ~m attempt to fit the facts of the case within the Waziri vs.. Ali formulation of instances, which in my view were oh/y- meant to assist courts to determine questions of identification evidence, the Court having realized that "there are no hard and fast rules laid down as to the manner a trial Judge should determine questions of identity." I am of the considered opinion that the Court of Appeal in. Waziri vs. Ali case only gave some· instances to assist courts determine questions of identification evidence but not to serve as rule of thumb for resolving every future case involving issues of identification evidence. However, what seems to be happening in our courts now is that the prosecution, with some measure of struggle, attempt to fit the facts of the· case being tried within the Waziri vs Ali case formulation and many a courts having been so convinced do not engage in a careful considered analysis of -all surrounding circumstances of the crime being tried as the Court of Appeal directed in Waziri vs. Ali case. In the present appeal, M/s Gisela seems also to have adopted the - . straight jacket approach by submitting that the light fro~ the lit lantern lamp on the fateful night was sufficient for PW_l to identify his assailant. Page 9 of 19 ) She did not however tell this Court or even show if there was evidence adduced at the trial court to show the intensity of the light and whether given the village setting and at night the lit lantern light was sufficient for • PW1 to identify his assailant. I would in this regard, wish to refer to the decision of the Court of Appeal in the case of Maselo Mwita @ Maseke and Marwa Chacha @ Charles vs. The Republic, Criminal Appeal No.63 of 2005,. (C_AT)(Mwanza)(unreported)(Lubuva, J.A., Mroso, J.A., Rutakangwa, J.A.) where the Court deliberated on among other things on · identification evidence. In that case, the Court of Appeal reiterated that it is now settled law that in a case entirely depending on the evidence of a single identifying witness such evidence must be absolutely water tight to justify conviction. In that case, the Court referred to Yohanis Msigwa v. R [1990] TLR 148 and Masudi Amlima v. R. [1989] TLR 25 as well· as the case of Waziri Amani v. R.. [1980] TLR 250 where the Court stated the guidelines to be followed by the courts when dealing with identification evidence. The pertinent issue is whether the evidence of PW1 was absqlutefy water tight. In my considered view, the evidence on the light was vague as it did not state as to its intensity. PW1 claimed that there was a lit lantern in the k,iosk but never went further to explain the intensity of_ the light. Furthermore, PW1 did not describe the size of his kiosk whether it was big or small. There was therefore· a need for PWl to describe the intensity {jf the light which would have enabled PW1 to correctly recognize his assailant. This raises some doubt as PWl · made bare assertion that .he . recognized the appellant. Page 10 of 19 M/s Gisela argued that, since the assailant was previously known to PWl as he used to frequent his kiosk, he was therefore not a stranger. Thus PW properly identified his assailant at the crime scene. It is worth noting here that PWl never .mentioned the appellant by _name to the people who had assembled at the crime scene after the incident. I have with some measure of difficulty tried to appreciate the find1ng . of facts and conclusion by the lower court given the surrounding circumstances of the cri.me · being tried if indeed there was proper identification of the accused at the crime scene. It is the evidence of PWl himself that on the fateful night of 16/05/2012 at 21.30 hrs. when about to close his business kiosk, the door to the kiosk was suddenly opened and _ . . suddenly his wife was cut with a panga in her face and fell down. That he (PWl) was puzzled with the incidence, so he confronted the assailant and caught hold of the panga by his left hand and struggled for a while,· but the assailant targeted the drawer where they used to keep the money, . overpowered him and made away with- Tshs.40,000,000/=. Clearly the · surrounding circumstances in which the crime tried happened militate against evidence of identification of the accused/appellant at the crime scene. As per the testimony of PWl the event happened so suddenly and the assailant used a panga with which he cut this wife and also PWl. This . . . is evidence of a charged atmosphere which instilled fear in the victims and therefore it could not be said that PW1 managed to properly identify his assailant at the crime scene. In niy considered view,- merely by PWl simply asserting . . . . . that there. . was lfght from a lit. lantern lamp without explaining its inter:,sity . and . the . Page 11 of 19 event happening in such a charged atmosphere, where PWl s wife had 1 been cut by a panga and fell down, and her husband upon coming to her rescue .he was slashed on is left palm, this does not accord with a conducive environment for proper identification . . by PWl of· the assailant who invaded his business kiosk on the night of 16/05/2012. In her reply. submissions M/s Gisela also attempted to fit the fact that the accused/appellant used to frequent PWl 's kiosk and therefore he was no stranger to-. PW1 with the easiness with which PWl managed to identify his assailant. The record shows that the main connecting factor between the assailant and the incident was the left foot shoe which PWl claim that the assailant dropped at the crime scene· and which apparently matched . . well with the shoes unearthed during the "parade" conducted at the Indian businessman canip, where it is alleged that the assailant was residing and that his "open" left foot shoe matched the right foot shoe that was found at the crime scene on the fateful night.· M/s Gisela while arguing the fourth ground of appeal submitted that the trial Court convicted. the accused on the basis of the right foot shoe found at the crime scene which matched the left foot shoe found with the accused during the "parade" at the Camp and the fact that, the accused did not contest it .being tendered in evidence. . . In this case,· the evidence of. "matching open right foot shoe" found during the Camp parade, and the "left foot shoe" found at the crime scene, which were admitted in evidence without protest at the trial cou~, constitute what in my view amounts to "evidential mining· puzzle" of its. . . own magnitude and never unheard of before in 9ur criminal practice and Page 12 of 19 procedure. In his testimony, PWl stated that the "left foot ·open shoe" · found at the crime scene was dropped by his assailant while taking off from the crime scene. PWl further stated that it is the people who had . assembled at the crime scene apparently following his. (PWl) cry _for assistance, who kept the crime scene left foot open shoe and which later was taken to the Police having matched .the right foot shoe found in possession of the accused during the conduct of the Camp parade. PWl directed· the assembled people including the Chair.man who headed to the Camp where the assailant was living. That, upon arriving there the Chairman showed the Camp Foreman, one Richard, the shoe whivh had been picked from the crime scene whereupon the Camp Foreman. lined up all the workers, about forty of them, and ordered them to come out with their pair of shoes and that, -upon being inspected, the accused was found carrying only one left foot shoe, which matched the one found at the crime · scene. The matching shoe and the one· found at the crime scene were taken to the Police and were later received in evidence at the trial and marked as Exhibit P1. There are a number of events which clearly mark the worst form of flouting of laws dealing- with search and seizure and handling of exhibits found at the crime scene. In the first. place, the accused/appellant was arrested by citizens and a purported lining up of suspects with thei_r shoes was conducted at the Camp where the appellant was residing. About 'forty workers who were residin·g at the Camp were paraded with their pair of .. . . shoes. Surprisingly, the accused also ca_me out with his only one pair of shoe which matched the one alleged dropped at the crime scene. This Page 13 of 19 • version of. the evidence in my view would fit quite well in a book of fiction but not in criminal proceedings. It beats anyone's imagination that a person suspected of having committed such a heinous crime. would, in his right mind, retain an incriminating piece of evidence . to with, . a matching pair of his shoes to· await for a shoe matching occasion as it is alleged happened in this case. ~n any event even if this Court was to believe the shoe matching . evidence, still the law in ·.his ·country requires that search and seizure be conducted according to the law and by a police officer and Certificate of Seizure be issued showing the exhibits seized and must be signed by the arresting/searching police officer, the suspect, and any witness to the search and seizure. This apparently did not happen in this case. The law on search and seizure was mean to prevent the planting of evidence on suspects. The parading of the Camp workers together with the suspect and with them their pair of shoes· in my view, constituted the worst form of jungle justice and in any case the purported "identification parade" and together with the attendant search and seizure of the pair of shoes flouted the law in its highest order. The learned trial magistrate did not seem to question this. jungle law procedure for if he did he ought not to have admitted in evidence the matching shoes. The law calls for strict compliance with the mandatory requirements under section 38(3) of the Criminal Procedure Act, Cap.20 R.E. 2002 for search and seizure. The learned trial Magistrate having noted in his ·Judgm_ent that, the whole process of arresting the Appel_lant was done·_by · laymen, the trial Court was very cautious in considerin_g the "shoe #8~~---- . Page 14 of 19 ' ,• .) .• evidence" as forming part ·of evidence in founding a conviction. Nevertheress the learned trial Magistrate still convicted the Appellant on the finding that PWl was a credible witness and that he was telling nothing but the truth .. This was a fatal error on the part of the learned trial magistrate. It is for the above reasons that, the fourth ground of appeal succeeds and is hereby upheld. Replying on the third. ground of appeal, M/s Gisela submitted -that, therE~ wa·s no need for identification parade to: be conducted because the accused. was properly identified at the scene bf crime. According to M/s Gisela, the event occurred at night and the identification was done at the same time. The fact of PWl k_nowing the accus~d, militated against conduct of police identification parade, M/s Gisela further submitted. The holding of an identification parade is a matter of law. Parading some people as it happened in this case where about 40 workers at the Indian businessman Camp were lined up cannot be called an Identification Parade. What took place at the Camp when the public spirited citizens in the company of the Chairman went searching for the suspect and the matching left foot shoe if anything, was parading and not Identification Parade as it is known in our law. The purpose of an identification Parade is among .other things to enable a witness identity his/her assailant. who he/she has not seen or known before the incident. This legal principle was clearly stated in the case of Joel ·llr/atson @ Ras vs. The Republic, Criminal Appeal No. 143 of 2010/ the Court of Appeal of ~anzania at Mbeya at page 5 (unreported). ~-- Page 15 of 19 In the present appeal, much as the accused person/appellant was previously known to PWl as he used to frequent the PWl 's kiosk, there was no proper identificatipn at the crime scene. The mere fact that the accused was familiar to PWl, in the circumstances of this case did not suffice for proper identification. It cannot therefore conclusively be stated that the accused/appellant was properly identified at the crime scene. In the circumst~nces there was need for conduct of Police Identification Parade, to enable PWl identify the assailant who he claims invaded them·. at their business kiosk on the fateful night of 16/05/2012. In the present· matter there was doubt that the accused person was not properly identified at the crime scene and therefore the police should, in the course of investigation, have conducted an Identification Parade for the purpose of ascertaining whether PWl could identify the suspect of the crime. In any event even where Identification Parade is held as per the decision in the case of Tongeni Naata vs. Republic [1991] TLR 54 (CA), it is "not the sole basis for the conviction. " In the present case, much as the identifying witness (PWl) clafms that the suspect was known to him before the incident~ the prevailing conditions and the manner in which the event happened, it was opportune for the holding of an Identification .Parade. It would not, as was stated by the Court of ·Appeal of Tanzania. iri the case of Doriki Kagusa v. the Republi~ Criminal Appeal No. 174 of 2004, (Mwanza)(unreported), at page 9, have been a waste of time for the identification parade ·to be held because in the present instance much· as the sLispect _was well known to PWl, · the prevailing circumstances on the fateful night militated against Page 1~ of 19 ....... j . proper identification. The mere fact that the accused used to frequent PWl's business kiosk as any other frequenter would, of itself does not in my con~idered view constitute familiarity for purpose of identification .particularly given the charged atmosphere and the a.mount of ·fear instilled on the victims by the assailant who as per the testimony of PWl was brandishing a panga and inflicted injury on both PW1 and his ·wife. It is for the above reasons that, third ground of appeal also succeeds and is hereby upheld. On the fifth ground of appeal, M/s Gisela replied. that, the prosecution did not ask to have the Cautioned Statement tendered in evidence because the accused refuted being involved in t_he armed robbery. Indeed as M/s Gisela rightly submitted and as could be garnered from the record, the prosecution did not seek to tender in evidence the Cautioned Statement by the Appellar:,t. · In the Cautioned Statement, the Appellant. had denied to have committed the offence. This being the case therefore and given that a Cautioned Statement is not conclusive evidence ·as it has tci be corroborated by other evidence, even if it could have been admitted in evidence, still the Court could not have decided otherwise. However, given that this Court has determined that the evidence of PW1 was not watertight, the trial court erred in convicting the Appellant. It is for the above reasons that, the fifth ground of- appeal succeeds but. for different reasons. On the sixth ground of appeal, M/s Gisela replied that, the .trial Court having considered the evidence of PW1 and PW~, found it sufficient to Page 17 of 19 convict the Appellant. M/s Gisela based her submissions on the testimony o(PWl that the accused had a panga with which wound both PWl's wife and PWl and that he made away with Tshs.40,000/=. M/s Gisela prayed . that the appeal be dismissed and the conviction and sentence of the Misungwi District Court be confirmed .. This Court has made a finding that the evidence by PWl on identification of the .assailant was not that credible to found a conviction. As I intimated to earlier in this judgment, the mere fact that the Appellant . . was known to PWl before the event on the basis that the Appellant used to frequent PWl 's kiosk was not sufficient to establish the identity of the assailant who- invaded PWl's . kiosk on the night of 16/05/2012. As I . pointed out earlier in this judgment, the straight jacket approach that on the fateful night, the light from the lit lantern lamp was sufficient for the assailant to be identified at the crime scene by PWl, was not sufficient given the charged atmosphere prevalent that PWl defended his wife and himself from. being cut by a panga, particularly, the testimony by PW1 that he struggled with the assailant who had already injured his wife with a panga. In such circumstances it could not be said that the invasion which . . was sudden and also the physical attack and ensuing struggle it could not be said that PWl was able while.attempting to wrestle with the invader be• able to identify the assailant at the crime ·scene. It is for these reasons, that this Court finds that, the· prosecution evidence was not that credible for the trial Court to found a conviction. In the whole and for the above reasons I allow the appeal, quash the conviction and set aside the sentence of thirty (30) year imprisonment. The Page 18 of 19 Appellant is to be released forthwith unless otherwise lawfully held. It is so ordered·. . ..... ••••■ a ■•••• ■ a~a•••• . J R.V. MAKARAMBA -JUDGE At Mwan:za 28.10.2015 Page 19 of 19