lyanga said others vs republic 2017 tzhc 2111 7 august 2017

IN THE HIGH COURT OF TANZANIA AT DOPOMA (APPELLATE JURISDICTION) DC CRIMINAL APPEAL NO. 126 OF 2016 (Original Criminal Case No. 94 of 2015 of the District Court of Iramba at Kiomboij LYANGA SAID & 4 O THERS.................................................... APPELLANTS VERSUS THE REPUBLIC............................................................................ RESPONDENT JUDGMENT 05/07/2017 & 07/08/2017 A. MOHAMED, J. The four appellants were charged with and convicted of the offence armed robbery contrary to section 287 of the Penal Code Cap 16 RE 2002) by the District Court of Iramba at Kiomboi and sentenced to 30 years imprisonment. Aggrieved, they have preferred their separate petitions of appeal against by the decision on a number of grounds that can be consolidated into the following: 1. That they were not properly identified 2. That the doctor who treated the victims was not called to testify in court. i 3. That no sketch map was tendered to show the scene of crime. 4. That the court did not consider their evidence. 5. That there was need for the prosecution to call Christina Johnson, Martha Johnson and Halima Emanuel to corroborate PW2’s evidence 5. That the trial court erred in convicting the 2nd appellant based on the voter registration card being found at the scene of crime without showing the chain of custody of that exhibit. According to the prosecution, on 15/8/2015 at 01:00 hours at Mingela village within Iramba District in Singida Region, the appellants stole 5,540,000/= shillings the property of one Lazaro Johnson by threatening him with a bush knife after breaking into his dwelling by using a big stone to break their front door. The voter registration card of the 2nd appellant was later found at a kitchen outside the house. They also injured Lazaro by hitting him with clubs and sticks in their attempt to extract information where he hid his money frm proceeds of 10 head of cattle earlier in the day. Eventually they took the money from him, his wife, mother and sister. At the hearing, the unrepresented appellants submitted they would rely on their grounds of appeal as set out in their petitions of 2 appeal in support of the appeal and would reply to the respondent's submission. In reply, Ms. Mwakyusa, State Attorney for the respondent said she supported the appeals of the 1st, 3rd, 4th and 5th appellants but opposed that of Nkanda Jilala, the 2nd appellant. She agreed that the 1st, 3rd, 4th and 5th appellants were indeed not properly identified at the scene of crime. The counsel argued the evidence of Lazaro (PW1) and his wife Mwajuma Jumanne (PW2) on the visual identification of the four was based on a solar lamp that was at the door of the complainant’s sitting room. But she said, they did not elaborate on the size or voltage of the lamp or the intensity of its illumination. The counsel further assailed the two prosecution witnesses' failure to describe the appellants' descriptions since they had said they identified the appellants being known to them as fellow villagers. Ms. Mwakyusa submitted PW1 and PW2 could not describe their distinctiveness such as their skin complexions, stature or whether they were slender or obese. She was of the view this failing creates doubt whether the two witnesses really knew the appellants before the incident. In support she made reference to the Court of Appeal case of Galos Faustine Stanslaus v R. Criminal Appeal No. 2 of 2000, (CAT at Moshi) where the Court held that; 3 “The law on visual identification be it of a stranger or of a known person (i.e recognition) is now well settled. It is trite law that such evidence is of the weakest type and courts should not act on it unless all possibilities of mistaken identity are eliminated. Furthermore, the courts must be fully satisfied that the evidence clearly shows the conditions favouring a correct identification and is accordingly water tight; see, for instance Waziri Amani V.R [1980] TLR 250, Raymond Francis V.R [1991] TLR 100. In circumstances where unfavorable conditions are apparent a witness testifying of such an event must detail clear evidence mentioning all aids to unmistaken identification, like the source of light and its intensity must be given. Unfavorable conditions include night time, a sudden invasion by a mob, use of dangerous weapons such as firearms, which produce a “weapon - focus effect in the mind of the witness, etc; see the case of Said C. Scania V.R Criminal Appeal No. 69 of 2005, CAT, (unreported). ” The counsel submitted in the present case, the circumstances prevailing were unfavorable for the waterproof identification of the four appellants as the intensity of the light was not explained as well as the sudden invasion of PW1 and PW2’s house by assailants wielding weapons was a terrifying incident where witnesses could not properly observe what was happening before their eyes. In addition, Ms. Mwakyusa was not comfortable with the appellants’ conviction based on accomplice evidence. She said the conviction was based on the evidence of DW2. Although such evidence is admissible, she insisted, it must be corroborated. And there was no other evidence to corroborate PW2’s testimony. As to Nhanda Jilala (DW2), she opposed his appeal on the circumstantial evidence linking him with the offence; the discovery of the 2nd appellant’s voter’s identity registration card at P W l’s house. The counsel said this evidence is supported by PW1 and PW2 who testified that they identified the 2nd appellant who failed to explain how his identity card was found at PW1 ’s house on the day of the robbery incident. She said he did not object when the said identity card was tendered in evidence at the trial court. In reply to the 5th ground of appeal where the 2nd appellant complained there was need to call Christina Johnson, Martha Johnson and Halima Emmanuel in order to corroborate the evidence of PW2, Ms. Mwakyusa said, according to section 143 of the Tanzania Evidence Act [Cap 6 RE 2002] the prosecution is not required to call any number of witnesses to prove its case. In his rejoinder, the 2nd appellant assailed the contradiction between P W l’s testimony and that of PW3 on the time his voter 5 registration card was found at the scene of crime. PW1 said he found it at 5:00 hours while PW3 had said he picked it up at 1:00 hours. The 2nd appellant queried how was it possible for the same voter registration to be picked up by two people at different times? After hearing the parties’ submissions and having reviewed the trial court’s record as well as the points in the appeal, I will give them my due consideration. First, I will contemplate on the question whether the visual identification of the appellants on the material night was proper. PW1 said there was a solar lamp at the sitting room that enabled him to see the appellants when they broke into the house. On the other hand his wife, PW3 testified she saw the appellants as there was a lamp in the house. Both failed to describe the intensity of light and the size of the room that it illuminated. I think the conditions obtaining at the material time did not favour a conclusive identification of the assailants. This principle was well stated in Waziri Amoni V. R (1980) TLR 250, which held that; “No court should act on evidence of visual identification unless all possibilities of mistaken identity are eliminated and the court is satisfied that the evidence before it is watertight". Further the Court of Appeal has on umpteen times emphasized it is not sufficient for the evidence to allude there was merely light or a lamp at the scene of crime that aided a witness to identify a suspect. In the unreported case of Kulwa Makwajape & Two Others v R Criminal Appeal IMo.35 of 2005, it was held: "... the intensity and illumination of the lamp is important so that a clear picture is given of the condition in which the appellants were identified. " Basing on PW1 and PW2’s testimonies, I am satisfied the circumstances at the material time did not favour a convincing visual identification of the appellants both in terms of the shortcoming on the source of illumination as well as the sudden attack by a number of assailants: See Said C. Scania v R Criminal Appeal No. 69 of 2005, CAT, (unreportedj. In short, the identification did not meet the requirements in law. I now move to the question whether the prosecution proved the 2nd appellant committed the crime. The evidence against him was to a large extent circumstantial. This principle was elaborated in Ally Bakari & Pili Bakari v R (1992) TLR 10 (CA). It was held that: “Where the evidence against the accused is wholly circumstantial, the facts from which an inference adverse to the accused to be drawn must be proved beyond reasonable doubt and must be clearly connected with the facts from which the inference is to be drawn. ” 7 Bearing the above principle, I will quote part of PW1 's testimony. “/ therefore left my home and reached at 16:00 hours. My wife told me someone was looking for me- the 2nd accused, (2nd appellant) and she told me she had gives (sic) him my phone no. At 20:00 hours I received his call, telling me he wanted goats for his cow. I told him I had no goat but we can look from people who had them” In turn, PW2 had testified that: “Before my husband returned Nkanda Jilala, the 2nd accused came asking for my husband. It was 16:00 hoours and my husband was not at home...As I told him he was not around he asked for his phone number and I gave him before he left to his home” Apparently, the 2nd appellant and PW1 were well known to each other prior to the incident since they had dealt in a number of livestock transactions. He thus knew where PW1 lived as well as knew he had on that day sold ten head of cattle at a livestock auction. In his testimony, PW1 said a person unknown to him had been following him at the auction. It is also in evidence that the assailants broke the complainants’ front door by using a large stone locally known as 8 “fatuma". I am satisfied that stone was one of three normally used in village households used to hold cooking pots over firewood fires. In this case it was removed from the complainants' kitchen outside their house. The stone and the broken door were admitted as exhibit P2. After the incident, villagers who responded to the alarm were able to track footsteps leading from the complainants’ house to the 2nd appellant's house. He did not object when the voter card was tendered in evidence. In his defence, the appellant alleged the mob that had gathered at his house after the incident had wanted to burn his house and it was possible, after his escape, they took the voter registration card from his trouser pocket which he had worn on that day and framed him that it was found at the scene of crime. After some reflection, think this was an afterthought. It is trite law that where an accused person intends to object to the admissibility of a statement/confession or in this case an article, he must do so before it is admitted and not during cross- examination or during defence - Shihoze Semi and Another v. Republic (1992) TLR 330. In the instant case, the 2nd appellant “missed the train" by trying to object to the admission of his voter registration card at the defence stage as the train had left. Any objection should be made before a statement or article is admitted in evidence. 9 I am therefore satisfied, the circumstantial evidence leads to the inevitable conclusion he was involved with others in committing the crime that he was charged of. I have equally considered the 2nd appellant’s cautioned statement that was recorded by Raymond (PW5) where he confessed committing the offence. He did not object when it was tendered in evidence. However, I will give the statement little weight for two reasons; first, the recording officer failed to write time when the interview ended in contravention of section 57(2) (c) of the Criminal Procedure Act (Cap 20 Re 2002); secondly, it was recorded at 8:00 hours on 16/8/2015. It is unclear whether there was a confusion of the dates as the offence was alleged to have been committed at around midnight on 15/8/2015 whilst the interview was on the morning of 16/8/2015. This is further complicated by the fact that the 2nd appellant was not arrested but had surrendered to the police in fear of the mob that went to his house immediately after the robbery incident. Was he thus under restraint within the provisions of section 50 (1) (a) of the Criminal Procedure Act when his statement was taken? I will next consider the 2nd appellant’s complaint alleging there was a contradiction between PW1 and PW3’s testimonies on the time the voter registration card was found. I will reproduce the relevant parts of PW1 's testimony. He said: 10 11 Then they left but they left voters identity card and (sic) of Jilala-2nd accused at the door as they were breaking (sic) it using a big stone....” On his part PW3 said: “At the scene I picked up the ID of Nhanda Jilala. It was at the local "cooker-“figa” as one of the stone (sic) was taken” From the above two testimonies, it is clear when PW1 said "they" he meant the villagers who came to the scene of crime heeding the alarm did found the voter registration card. PW3 actually picked it up at the kitchen outside PW1 ’s house where one of the three stones used to hold a cooking pot was missing and, apparently, is the one that used to break open the front door. There is indeed an inconsistency between PW1 and PW3’s testimonies. PW1 said people found the voter card at the door of his house whilst PW3 said it was found at the kitchen located near the house. As was stated in Said Ally Ismail vs Republic, Criminal Appeal No. 241 of 2008) (unreported) thus:- "..../f is not every discrepancy in the prosecution’s witness that will cause the prosecution case to flop. It is only where the li gist of the evidence is contradictory then the prosecution case will be dismantled...” (Emphasis added) I think in the present case the inconsistency is a minor one in view of the commotion ensuing after the attack. PW1 was also involved in a scuffle with the assailants. I am therefore content there is no contradiction between these two witnesses’ testimonies on the time that the said voter registration card was found as alleged or where it was found. It was indeed found outside the complainants' house after the attack. Further, PW3 said when they reached the 2nd appellant’s house, his wife told them her husband had just arrived shortly before them and had told her that someone had probably died at Mingele village. In the final, I find merit in the 1st, 3rd, 4th and 5th appellants’ appeal and allow it. Consequently, I quash and set aside their convictions and sentences. They are to be freed forthwith unless they are held for another lawful cause. However, I uphold the conviction and sentence in respect of the 2nd appellant. It is so ordered. 12 / A. MOHAMED JUDGE 07/08/2017 The right of appeal explained. I: •• v A. MOHAMED JUDGE 07/08/2017 13