20161109 TZHC Dar es Salaam

"'·. \4 - - -~1,,:"- IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CRIMINAL APPEAL NO. 194 OF 2015 (Originating from Criminal Case No. 193 of2014 in the District Cburt ofMorogoro at Morogoro) 1. JUMA MUSA MCHEL 2. RAJABU JUMA KIKA ' r etermination by this Court filed by Juma Mussa Mche avu Dugo who were aggrieved by the decision of the Hon. rt of Morogoro delivered on the 26th of June 2015. The : e charges but were convicted of Armed Robbery contrary to · ~nal Code, Cap 16 RE 2002 and sentenced to serve thirty years imprisonment. Twelve grounds of appeal were filed by the appellants and in effect expounding that they were dissatisfied with the trial magistrate findings alleging that he erred in law and fact in relying of the evidence on visual identification at locus in quo by prosecution witnesses (PWI and PW3) in unfavourable conditions; inconsistencies m the evidence of 1 . prosecution witnesses when testifying in Court in the statements made to the Police, - - unprocedurally-conducted identification-parade,-failure ·of-the prosecutiontb proVelheir case beyond reasonable doubt, and by not considering the evidence of the defence in determination of the case. Having perused the Court records we have dtscemedthe facts-of the case to bethat on the 11th of September 2014 at Makuyu Village within Mvomero District in Morogoro Region the 1st and 2nd appellant with other persons broke into 1, op owned by Nickson Ooko Auuche J ahuo and did steal various items as pre · · d in the •· mobile phone handsets, mobile phone batteries and cash , 0,000/- and that immediately before and during the stea -- wife of Nickson Ooko Anguche Jaluo w · steal the narrated items. During the hearing of the ap unrepresented and appeared in person and Ms. Zawadi tto · :y represented the Respondent 1_. Republic. In arguing 1libmitted orally stating that he was vince the Court to allow the appeal and set him free. 1l s confidence in the Court to consider their -~quashing the conviction and sente~ce. supported the appeal and decided to concentrate on eal to amplify on their position. The first ground was the entification against the accused, especially the evidence of PW3 estified that she identified the appellants from the light emanating from a lightbulb powered by solar energy. The learned State Attorney challenged the said evidence because asserting that, the evidence failed to specify on one essential aspect, that is, the intensity of light at the scene and expound on whether it was adequate to identify the appellants in such unfavourable circumstances. That PW3 also failed to show the circumstances surrounding the onspot identification, such as the distance of observing 2 /' the appellants at the scene of crime and the duration she had observed the culprits. The Respondent Republic further contended that the evidence of PW3 was that she had first seen the appellants outside the premises and then they went inside with the 2nd appellant who took the money, but that the evidence does not state whether the lightbulb was inside or outside the room and therefore leaves doubts on the identification of the appellants. Her stance was situated within the conditions laid down in the case of Waziri Amani vs. Republic (1980) TLR 250. It was the finding of the learn$ tate Attorney that the ingredients of identification outlined in the said case were not m PW3. On the identification parade, it was submitted by ~ -- --- -PW3whohaa-testifiedshehacl-identified - she knew the appellants before the ~pide - ·gh ~rs who occasionally visited the place of business she • - ate ·~ . __ s. PW3 it is in evidence had named the 2nd appellant ;vestigate at the scene. Therefore 1cation parade a useless exercise adding :;;.;c.<x,o,7"-""- o identification. That the doubts in the &e not addressed and therefore the benefit of doubt in nefit the appellants. The 1 , o addressed the issue of the appellants arrest, stating that to the charge against the appellants is said to have occurred on 2014 but it is stated that the appellants were arrested on the 16/9/2014 and no evidence was given why there was delay to arrest them whilst the appellants lived in the same village and there is no evidence that they had left the village. The Respondent Republic thus submitted that they were in support of the appeal and that the conviction should be quashed and sentence set aside. 3 I This being the first appeal, it is the role of this Court therefore to consider the grounds of -appeal, ano in doing-so, to-scrutinize,-analyze-and evaluate the evidence upon which-the conviction of the appellants was based. The issue which will guide this Court in determination of this appeal is whether the Prosecution did prove their case beyond _-:--reas-onab1e .doubt-specifically un the- evidence of-identi-ficatiQ11-where the circumstances __ have been shown not to have been very favourable, the armed robbery having occurred at night. The Court will consider and determine the grounds o earlier in this judgment and not as presented. The first the trial Court's reliance on the evidence o - ~prosecution_witnesses_(E.Wl and PW1)Jn... --- Court relied on the evidence of PW 1 and PW3 wh - dt ' e armed robbers who entered the house holding bush robbers and there was a gun s tified that the 1st appellant was ~ holding a gun and the 2nd app - ers,,,~e holding bush knives. PW3 stated nd that the house had solar power and to identify the 2nd appellant. PWl also om solar energy. PW3 also stated that at around 20.00 pellant as the client who attended the shop to had seen him and recognized during the robbery t the 1st appellant was the one who directed a gun at her and also that the 2nd appellant and the 1st appellant were the ones standing closer to her most of the time and it was the 1st and 2nd appellant who were asking her where her husband was. That the 1st appellant was the one who stayed outside while the 2nd appellant and another entered inside the house for the money. From the evidence it is clear that PW3 stayed with the 2nd appellant longer and she testified she had seen the 2nd appellant visiting the shop earlier to charge his phone, and therefore he was someone she had seen 4 i I before. There is also the fact, that despite PW3 evidence that she also knew the 1st appellant because he lived in the same village in accordance with her testimony and the evidence of PW2, she was able to provide the name of the 2nd appellant as someone she knew before the incident. Again, PW3 did provide particular circumstances which led her to the identification of the 2nd appellant and did expound on the status of lightin at the scene. Cases of Andreas Ndunguru vs. Republic, Criminal Appeal No. 182 o Chally Scania vs. Republic, Criminal Appeal No. 6: .flar matters were discussed and the Court has stated: "We think that wheij ·s- about identifying another person in unfavourable cond,ins lik;· ~, ,:g '~} ~ ~ear eviaence wh-ich-leaves no aouo-nhat -and-rel-iable-;-'Fo-do- - - - ~ so, he will need to mention all the a like proximity to the person being identified; the sour ength of time the person being identified was within vie on is familiar or stranger". All the witnesses, that where there was sufficient light to lead to removing any doubt of possible ~ed it is in the room they entered with the 2nd appell ·, on at ; , :time, to take the money, a room which had the light 9 1er. This contention is supported by the evidence of PW2 had visited the scene to investigate, PW3 had named Rajabu o be amongst those who robbed them and he was holding a bush knife. This was soon after the incidence. PW2 also saw the light bulb which PW3 had stated assisted her to identify appellant no. 2 and 1. PW2 restated this statement when cross examined by the then 4th accused saying "PWJ and his wife told us that, they saw you at that night through the light of bulb outside the house. "Solar power" when I went at the scene after like 40 minutes I met the light of bulb of solar power. The light looks like electricity bulb". PWI also stated he saw appellant no. 1 and 2. 5 From the said evidence before the Court and being guided by the ingredients established by Waziri Amani's case (supra) with regard to identification under unfavorable conditions, we hold that, it is the 2nd appellant who was properly identified and whereby the conditions therein are fulfilled. PWl stated she spent time with the accused from outside the room and entering the room, that they were close, also that there was light in the room similar to an electricity light according to PW2, and also the fact that she had named the 2nd appellant as one of the robbers at the earliestifi"' • e to PW2 and also the fact that she knew him from before having seen him eadier that · ·•. t coming to charge his phone. There is also the fact that she stated that he · , a bush knife. When cross examined by the 2nd appellan. material day, I attended the 2nd accused ~ -client.~You-bring yourphone to recharge. ·,. .:,;_;,ffrs and among them I '~ saw you. I saw you through the light of t my house". This Court is satisfied that th pro •,,:t identified within the standard TL 50 pg.252 it was stated that, in state in their evidence conditions of the culprits. In the case of Raymond ·twas stated as follows:- 11 .. .It is elementary that in a · ,tpends essentially on identification, evidence on ation is of the utmost importance. 11 lso propounded in the case of Saidi Chally Scania vs. Republic, ·9 of 2005 are fulfilled as against the 2nd appellant. But at the same time we find like this is not the same for 1st appellant. The witnesses for the prosecution we find failed to give evidence that complied with the conditions and standards set therein or what was also enunciated in the case of Waziri Amani (1980) TLR 250 with respect to the 1st appellant. It is in evidence that he never entered the room which had light, and PWl saw him from a far, despite both of them saying that he was the one holding a gun, the possibility of mistaken identity is there and the doubt must 6 f favour the 1st appellant. There is also the fact that no witness named him soon after the incident to PW2. We find that bearing in mind the fact that PWl and PW3 stated they knew the 1st and 2nd_ appellant before the_incident, _there__was nQ_11_eed __for an ig~ntific~tion para~e. Identification parades are conducted according to PGO No. 231 and 232 issued by the Inspector General of Police. We understand the position of the~ law as stated by the court of appeal in the case of Abdul Farijallah vs. R, Cri;;;?~ Appeal No 99 of "' 2008(Unreported) "That it is trite law that the test in an · · enable the witness to identify a person or persons whom he or s before the incidents". Therefore having regard to the av ing the ~ - - appellants-there· was-no-need---for-identi -case-find-that-the--- identification parade did add any valu~1r for or against the 1st , ' and 2nd appellant. We find th · · . :y identified. On the second ground alle · \«ence of prosecution witnesses, examining the testimo fi • apparent inconsistencies. We have witnesses. We have failed to locate the hie · J'?.) s "~ · y such contradictions. It is true that the ce o~ed on the night of 11/9/2014 and the 1st and 2nd appell · ' ,ted on 15/9/2014 in their homes. The 1st and 2nd appell :ng that if they had been named and described by PWl and PW3 eir arrest? The contention being that the prosecution :witnesses had lied s named the appellants. The 1st and 2nd appellants had disputed being involved in the Robbery and averred to their arrest on the 15/09/2006 up to 16/9/2006 stating they were not arrested with any of the alleged stolen property. 1st Appellant was arrested while at home and the same for the 2nd appellant. PW2 evidence during re-examination was that they went directly to the homes of the appellants to arrest them because they have been provided with the name of the 2nd appellant and the physical description of the other robbers by the witnesses. 7 We find that the presumed delay in the arrest of the accused persons despite having been given the names of the culprits should not be a factor for consideration to lead us to determination that PW3 lied when she said she had named the 2nd appellant, this is because PW2 evidence is clear on this, clarity and veracity which was even found by the trial court. Though no reasons were- provided for tlie delay in arrest, we find this does -not - in any way make the evidence of PW3 lacking in truth on the said fact in any case there being no justification or need to lie. Having found the 1st appellant to have not been prop en of the Court that there was no sufficient evidence provi tnesses to prove the case against him beyond reasonable ---- 1st appellant is alloweJ:-conviction1squas, -e-:- 'fhe-1-st-appel-lant-is- - - -- set free unless unlawful held. Having dealt with the appeal the 2nd appellant, the finding of this Court is that, ficient evidence to show that ,or a ,., ssibility of mistaken identity. The , e fact that, during the robbery, firearms W3, and Exh. PEI- which is the cartridg~ this, in effect augmenting PWl evidence that .he heard _ the robbery. There is also the fact that PWl was mJure ., obbery substantiated by the testimony of PWl, PW3 and PW2. The ground rai the appellants that their defence was not considered by the trial Court, we find going to that the trial Court considered the evidence of the appellants and other accuseds hence some of the accused persons were acquitted. The defence lacks substance and merit and does not raise any doubt on the evidence by the prosecution on the evidence on record against him. 8 Therefore, having considered the evidence carefully, the Court is satisfied that the appeal - ------oy tne 2nd appellant lias no merit ancfifTsliereby-dismissecf. ~ ----------~---==-------=-·-__- __--_ _---:Winfritla:-B-:::-I~:orosso·-__-=--=---=--=----- Judge 9th November 2016 Judgment delivered in Chambers m the pre ~~~~~ avu the 2 nd appellan appell _ _for_th en __ ep_ 9