20150910 TZHC Dar es Salaam

... IN THE HIGH COURT OFT ANZANIA DAR ES SALAAM REGISTRY CRIMINAL APPEAL NO. 01 OF 2015 (Original Criminal Case No. 234 of 2012, Kibaha District Court at Samora) 1. NYAMHANGA MKAM ............................................. . 2. ABDALLAH RAMADHANI. .................................... . - - - - __ 3_._HARU_NA HA~Sf\NJ MAKUKA @NDIKI............... - - -· ~ APPELLANTS 4. AMOS SHIJA @MASINGIJA.................................... . 5. YARAYA ABDALLAH @KABONDE ..................... . VERSUS REPUBLI C_.............................................................................. RESPONDENT JUDGMENT Date of last Order 10/9/2015 Date of last Judgment 10/9/2015 W.B. KOROSSO, J. Nyamhanga Mkami, Abdallah Ramadhani, Haruna Hassan Makuka Ndiki, Amos Shija Masingija and Yahaya Abdallah Kabonde have preferred an appeal to this court being dissatisfied with the decision of the Kibaha District Court, delivered on the 4th day of July 2014 by Hon. H._ I Mwailolo RM, who convicted them on charges of Armed Robbery contrary to section 287 A of the Penal Code Cap 16 R.E 2002 and sentenced them to serve thirty years imprisonment. ' 1 .:. ' The appeallants jointly filed a petition of appeal which had fourteen grounds, for which this court will consolidate and the gist of the grounds submitted are as with regard to, their dissatisfaction with the trial court first, analysis of prosecution evidence related to visual identification of the appellants at the locus in quo and consideration of contradictions and inconsistencies of evidence presented by the prosecution witnesses as it relates to the identification of the appellants and what transpired during the incidence of robbery; Reliance on oral evidence relating to confession of the 4th appellant while not tendering a -~a~tioned· sfatement; -Failure of the prose~_utj.or1 s!de to prove their case beyond reasonable doubt especially by failure to tender in court alleged weap~~~ ~secf af ________ -- the scene of crime; and failure of the trial magistrate to consider the sworn testimonies of the appellants which had raised a reasonable doubt on the evidence presented by the prosecution. The appellants subsequently prayed for this court to allow the appeal, quash the conviction and set aside the sentence and set the appellants free. On the date fixed for hearing of this appeal, the appellants were present in person and unrepresented and the Respondent Republic was represented by the Miss Rachel Magambo, learned State Attorney. The appellants prayed to the court to adopt the grounds of appeal filed and asserted that they will respond after the Respondent Republic had made their submissions but overall prayed for the court to allow their appeal and set them at liberty. On the part of the Respondents, at the outset they asserted that they do not support conviction and sentence against the 3rd, 4th and 5th appellants but they supported conviction and sentence against the 1st and 2nd accused persons. 2 ________ , The Respondent Republic submitted in response to the appellants grounds of appeal and addressing them in unison started with the trial courts evaluation and consideration of evidence related to visual identification the Respondents submitted that as the incidence of crime under scrutiny occurred at 1.00 hrs, PWl, PW2 and PW3 evidence was that there was electric lights coming from a bulb which facilitated ease of identification of all the appellants. That since, PWl had stated that, appellant no. 1 was a person he knew before the incidence, therefore there was no need for the identification parade. It was the respondents submission that this evidence-wa-s- supported-by -the-eiz:idence_ 9_f_J~W2,- · -who also --------- averred that appellant no. 1 and 2 were known to him before the incidence. Having given them some tasks to do for him before the incidence of crime under discussion. On the question of light, that PW2 had given evidence that the light coming from an electric bulb was enough to identify the appellants and this assertion is supported by the evidence of PW3 on knowing appellant 1 and 2, that he knew them as Nyamhanga and Dula and that there was adequate light to identify them'. That there was also the evidence of PW4, who had stated that PWl, PW2 and PW3 had named the culprits who attacked them when they reported the matter, saying that Nyamhanga and Della were among those who had attacked them and they knew the two appellants from before the incidence. That the said witnesses did not know appellant 3, 4 and 5. Consequently the respondents submitted they was a need for identification parade so as to ensure that there was no mistaken identity and they did not know them before. This court also considered the trial court findings when addressing the issue of visual identification of the appellants at the scene of crime by the prosecution witnesses, which was an issue queried by the appellants in ground no. 1, 2, 3 and 3 ) 4 of their petition of appeal. At the same time addressing contradictions and inconsistencies in the evidence of PWl, PW2 and PW3 on the issue, the trial court stated that, on the evidence of the said witnesses, the robbers who invaded them were clearly identified by them from the electric light. That PW2 evidence does not show that she knew appellant no. 2 and 3 before the incident but PW3 shows that she knew the three accused persons as they used to do manual work at her parents' house. That her evidence was that, the 3rd and 5th appellant were also present and the evidence of PW4 shows that the 4th appellant was also present considering the confessiciifhe mlrde~- -- -- - --- - -- - ---- - --- _________________ _ It is pertinent to bring forth what we deem are the facts of the case. On the 2nd of October, 2012 at around 1.00hrs at Msongole Mlandizi area within Kibaha District, the house of one Ally Ngwalu was invaded by robbers armed with knives, at the time when they were asleep who managed to steal cash and various items including cellular phones the property of Ally Ngwalu, PWl. The incident also led to injuries to those living in the house. That the appellants were arrested on reports of witnesses who had been at the house and managed to identify some of the culprits and others were arrested from information after the arrest of the 1st and 2nd appellant. As this is a first appeal, as held in various cases, the first appellate court should discuss the evidence and make its own evaluation when hearing first appeal and hence it is in a way a rehearing (see D. R. Pandya v. R [1957] EA 336 as discussed in the case of Salim Petro Ngalawa vs. Republic, Criminal Appeal No. 85 of 2004 CAT, Arusha) In determining this case, this court will consider whether the prosecution had proved its case to the standard required. 4 I This court had an opportunity to scrutinize the evidence presented in the trial court to prove the case, in consideration of the grounds submitted by the appellants, especially on the issue of visual identification whether it was sufficient leaving no doubt to the culprits and no room for mistaken identify. On this issue, the prosecution relied on the evidence of PW1, PW2, PW3 and PW4. PW1, Ally Ngwalu stated that on the night of the incident, at midnight , while sleeping, his house was attacked and on hearing the dogs barking he woke up and heard some people saying "ndiyo hapa, vunja geti". That he saw them because there was an electric bu.1b, - and- lie -uses--a -generater-. -'f-1-lat- the _robben;_ br2ls~_!1-1._e__ gate and also the sitting room door. He heard them saying "kamanda fanya kazi tuliyotumiwa 11 and he heard the name Ngosha, Dick do your work. He was then cut by panga (which the trial court termed bush knives) in different parts of his body. The robbers took money and cellular phones from him and his children and his sister in law. The robbers entered most of the rooms and attacked those in including his children and sister in law. PW 1 stated he knew all the robbers by face and he knew the first appellant by name, that is Nyamhanga as he used to pass at their street. During cross examination by the 1st appellant he asserted that he knew the 1st appellant and that he had heard him saying "Hapa mimi noma nafahamika" and that he was the one who cut him with a bushknife. Also it was the 1st appellant who had later destroyed the electric bulb. During cross examination by the 2nd appellant, PW1 stated he had known the appellant by face, but he heard his friends calling him Dula Abdallah during the incidence, and that he saw him through the window as there was enough light from the electric bulb. Regarding the duration it took for the incidence, when being cross examined by the 3rd appellant, PW1 stated that the incidence took about one hour and that he saw them from when they 5 entered the gate• that is why he could recognize them. For the 4th accused, PW1 stated he was the one called Ngosha by the other robbers and that he saw him as part of the group. PW2, Nusura Ngwali gave similar evidence related to the time of the incidence, that the robbers entered and she sustained injuries in the face which the trial court records noted marks on the face which where black in colour. She stated she knew before the incidence, the 1st and 2nd appellant by names that is --- - - - - -- -- --Nyamhanga_ 1\/lk_a_:qi_i_ and Dula since she is the ten cell leader and she gave them some work to do. Th~; s~~ id~n~ified th~- ~th~~ ~ppellants -fro_m_ fhe-ele-dric-bulb-.- -- -- -- - PW2 also averred the fact that they use a generator therefore they have light from electric bulbs outside and in the sitting room. PW3, Mwania Ally, also stated there were an electric bulb giving light, and also stated that on that day they had gone to sleep late and that when the robbers entered the house about five of them and she knew two of them Nyamhanga and Dulla (1st and 2nd appellant) because they used to work as laborers. Her evidence on what happened is similar to that of PW1 and PW2 on material particulars. When cross examined by the 2nd appellant she stated that the she spent about 5 minutes in the sitting room and then they were sent to the bedroom by the 3rd and 5th appellant. The evidence of PW4 D/SGT Ayub, he was the investigator, and that on the 2/10/2012 when they visited the scene of crime they found PW3, since PW1 and PW2 who had been injured were hospitalized. That PW3 had told him that she knew some of the culprits and mentioned the names of the 1st and 2nd appellant, which led to their arrest and interrogation. That, he managed to interview PW1 who also gave him the names of the 1st and 2nd appellant. That the 3rd-5th appellant were arrested during operation of people engaged in armed robbery. 6 The injuries sustained were also established through the admission of the PF3s admitted as Exh Pl and P2. PWS, Doctor Josephat Francis gave evidence states on the 3/10/2012, they received PWl and PW2 at Tumbi hospital. PWl had a lot of blood and was unconcious and had lost a lot of blood, that he had injuries caused by a sharp object. PW2 was also injured and has lost blood and was bleeding but conscious her head was swollen. PWl was in dangerous condition. In their defence, all the appellants gave sworn/ affirmed evidence respectively, - -- - - -- - -denying take par~ i~_ !he said robbery. For the first appellant and 2nd appellant they went on to narrate what he thought were inconsistendes- iri lne pr-os-ecution- - -- -- -- witnesses, matters which have also been relayed in the petition of appeal tendering the statements of PW2 and PW3 at the police station to show the stated contradictions and inconsistencies and also were challenging failure by the police to conduct an identification parade. The 3rd, 4th and 5th appellants deny taking part in the robbery and appellant no. 4 challenges to have written a cautioned statement. On consideration of the evidence before this court, as they related to the conviction of the appellant and the grounds of appeal by the appellants it is without doubt clear that the issue of visual identification of the appellant is critical. Prosecution had stated earlier depend on the evidence of PWl, PW2 and PW3, who in actual fact when considering their evidence were clear on the identification of 1st appellant and 2nd appellant stating that they were known to the prior to the incident. There is also the fact that the said witnesses gave evidence that there was enough light from an electric bulbs through the use of a generator. That the bulbs were outside the house and in the sitting room, it is also in evidence that the incidence took some time about one hour in accordance with the evidence of PWl. 7 Visual identification especially in unfavorable circumstances like at night has been discussed in many cases, and courts are supposed to warn the themselves on relying on such evidence, it being of weakest kind, being vulnerable to possibility of mistaken identity. In the case of Michael John Mtei vs. Republic, Criminal Appeal No. 202 of 2010, CAT Dar es Salaam, Justice Rutakangwa stated that, the law on the value of such evidence in criminal trials, is well settled. This evidence is of the weakest character and most unreliable. It should be acted upon cautiously when the court is satisfied that the evidence is watertight and that all possibilities ~f mistaken identity are eliminated. -In identifkation cases, wib:le_s_s_e_s____ _ must always clearly state in their evidence conditions favouring a correct identification or recognition of the accused: See, for example, Waziri Amani v R., [1980] T.L.R. 250, Raymond Francis v R. [1991] T.L.R. 100, Issa Mgara @ Shuka v R, Criminal Appeal No. 37 of 2005, and Walter Dominic & Another v R., Criminal Appeal No. 35 of 2005 (all unreported). The fact that the 1st and 2nd appellant were known to PW1, PW2 and PW3 has not been controverted, In view of that it has been established that where witnesses know the accused prior to the incidence there is no need for an identification parade. On the ground of identification parade, it is trite law that where the victims or witnesses know the accused prior to the incidence, an identification parade becomes irrelevant. The court of appeal stated in the case of Abdul Farijallah v R. Criminal Appeal Appeal No 99 of 2008(Unreported) "That it is trite law that the test in an identification parade is to enable the witness to identify a person or persons whom he or she had not known or seen before the incidents 11 • Therefore, from what this court has stated above, the finding that PW1, PW2 and PW3 knew the 1st and 2nd appellants, there was no need for identification parade. But there was a need for identification parade in the case of the 3rd, 4th 8 and 5th appellant. Failure to conduct the parade was detrimental to the prosecution case on the issue of their identification. On the issue of inconsistencies of the testimonies of PWl, PW2 and PW3 regarding the incidence, S. 166 of the Evidence Act, Cap 6 is relevant to this point, it states that , ''In order to corroborate the testimony of a witness, any former statement, written or oral, made by that witness relating to the same fact made either at or about the same time when the fact took place or before any authority legally competent __ to_ irzve_s_tigflJe -*~ fq~~ _111ay be proved". This court had an opportunity go through the said statements to compare if there any inconsistencies,- oirf we -did-hot find- - -- - - - - and inconsistencies in material particulars to warrant this court to discard the evidence of the said prosecution witnesses and in any case it is clear from the Judgment, that the trial magistrate found the prosecution witnesses, PWl, PW2 and PW3 to be credible witness. In any case, their evidence is corroborated by Exh Pl and P2 regarding the injuries sustained, also the evidence of PW4, that they had given the names of 1st and 2nd appellant immediately they were able to is also relevant. Therefore we, find that if they were any inconsistencies they are such that no injustice was occasioned in view of the available records before the court. Therefore, having considered the issue of visual identification in its wider context, we find that the evidence as against the 1st and 2nd appellant was sufficient and conformed to stipulated ingredients, as propounded in case law, and there is no possibility of mistaken identity. But this court finds that the evidence against the 3rd, 4th and 5th appellant was insufficient and that the prosecution had not proven that they were sufficiently identified and therefore leaving room for possible mistaken identity. The trial court had relied on the alleged confession of the 4th appellant, which unfortunately was not tendered in 9 court as an exhibit and therefore the court had no opportunity to determine whether the said statement was in fact a confession. It is the finding of the this court, that with due respect the trial magistrate should not have considered the evidence narrated orally of their being a confession by the 4th appellant. The other issue which this court feels pertinent to address was the ground of appeal on failure of the prosecutions to tender evidence which they thought was crucial such as items said to have been stolen and weapons said to have been - - -- - - - - - --used_in the_c9_m!1}i_s§_ie>i:,. -~£_ ~h_E:_ crime. It is important to remind ourselves, that the law does not force the prosecution on what evidence to bring to the -c-otiif]t-is- -- -- -- - incontrovertible that in terms of section 143 of the Evidence Act, no particular number of witnesses is required in any particular case for the proof of any fact. This has been stressed in a range of cases including those of Yohanis Msigwa v. Republic [1990] T.L.R. 148, Gabriel Simon Mnyele v. Republic, Criminal Appeal No. 437 of 2007 CAT, and Nicodemus Awe and 2 Others v. Republic, Criminal Appeal No. 155 of 2014, CAT (both unreported). In the case of Gabriel Simon Mnyele v. Republic, the court emphasized that:- "... under section 143 of the Evidence Act (Cap 6-RE 2002) no amount of witnesses is required to prove a fact" But we also need to remind ourselves that, despite the above position, it is also the law (section 122 of the Evidence Act) that the court may draw adverse inference in certain circumstances against the prosecution for not calling certain witnesses without showing any sufficient reasons - See Aziz Abdalla v. Republic (1991) T.L.R.71. In this case with the evidence available and the submissions of the witnesses, there was no doubt that the robbery occurred and that the victims were injured by sharp weapons, therefore failure to tender weapons does not in any way compromise the evidence as it relates to the said facts. 10 • In the event, this court having considered and evaluated the evidence presented in the trial court, finds First, that the appeal against the Nyamhanga Mkami, the 1st appellant and Abdallah Ramadhani, the 211.d· appellant is· dismissed, and_ therefore the conviction for the offence charged and the sentence is hereby sustained. Second, the appeal against Haruna Hassan Makuka@ Ndiki, the 3rd appellant, Amos Shija Masingija, the 4th appellant and Yahaya Abdallah @ Kabonde the 5th appellant is allowed and therefore the conviction for armed robbery contrary to section 287 A of the Penal Code Cap 16 RE 2002 and the ___ __ _ _._. sentence of 30 years imprisonmentaga:insti:he-3rcl,-4th- and_S_th_ap_pellants are ------ hereby quashed and set aside. The appellants to be released forthwith from prison unless they are other~ise lawfully held. Ordered. k~ · ~i\ . , /:,;·• ~-. , Winfr~osso . ~~p. _,_/ JUDGE 10/09/2015 11 : i