issa mwanjiku white vs republic 2018 tzhc 2792 26 june 2018

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT PAR ES SALAAM CRIMINAL APPEAL NO. 57 OF 2017 (Appeal from the judgement o f the District Court o f Morogoro at Morogro, Criminal Case No. 165 OF 2016) ISSA MWANJIKU @ W H ITE.....................................APPELLANT VERSUS THE REPUBLIC................................................. RESPONDENT JUDGEMENT The appellant Issa Mwanjiku was charged for robbery contrary to sections 285 (1) and 286 of the Penal Code (Cap 16 R.E. 2002), at the end of trial the appellant was found guilty of the offence charged and subsequently sentenced to serve thirty (30) years imprisonment. Being dissatisfied with the conviction and sentence, he preferred this appeal armed with six (6) grounds, which conveniently may be summarized into two grounds: one, whether the appellant was properly identified at the scene of crime, and two, whether the prosecution proved the case to the standard required. Briefly, facts of the case go like this: the appellant and another who was not arraigned in court, visited the farm of PW1 looking for job of harvesting rise, PW1 promised them job with conditions among them was to sign an employment contract, have passport size picture, surety and promised that once they fulfil all of them they would be offered job of TZS 80,000/= per one acre of rise. Since it was already evening, the two went to sleep to the house of their employer (PW1), built at the farm, best known as Camp. PW 1 slept in his car and the two slept in one room. In l the morning of 1st June, 2016 the two persons went to the farm to commence work, but after 15 minutes, the two went back to the camp asking for a kitchen, while PW 1 was trying to show them kitchen, one of the two accused robbed PW 1 at his neck and started beating him later dragged him into the toilet unconsciously. They managed to robe cash TZS 50,000/=, mobile phone make Nokia worth TZS 600,000/= also they took vehicle keys and a tractor properties of PW1. After three hours, P W 1 while on toilet, became conscious and he called his nearby who rescued him from the toilet and took him to hospital. Those are the brief facts of the matter. On the hearing, the appellant being not represented, had nothing useful than to rely on his grounds of appeal with a prayer that the conviction be quashed and the sentence be set aside. The Republic was represented by her learned State Attorney Elen Masululi, who supported the conviction and sentence. She proceeded to argue that the appellant was properly identified by PW1 which evidence was corroborated by PW6 who was the owner of the bicycle. The bicycle was used by the appellant and his co-accused. The State Attorney referred this Court to the decision of Waziri Amani V. Republic (1980) TLR 250 and that of Said Chall Scania V. R Criminal Appeal No. 69 of 2005 (unreported). The time of the incident was in the morning when was sun shine. The appellant was known by the victim PW1; which evidence was corroborated by PW6. PW5 was medical Doctor at Morogoro referral hospital who treated PW1. PW4 G.7759 DC Mohamed arrested the appellant when was on the way to Iddy Hamis returning the hired bicycle used to robe PW1. Finally, the State Attorney rested her submission by inviting this court to confirm the conviction and sentence of the trial court. The issue of identification of the accused is now settled, due to unbroken chain of various decisions of this court and that of the Court of Appeal. The genesis of proper and correct identification in cases whose determination hinges on the identification 2 of the accused, was reiterated by the Court of Appeal for Eastern Africa way back in 1942 in the case of Mohamed Alhui V. Rex (1), it was held that: “In every case in which there is a question as to the identity o f the accused, the fact o f their having been a description given and the terms o f that description given are matters o f the highest importance , o f which evidence ought always to be given; first o f all o f course, by the persons who gave the description and purport to identify the accused, and then by the person or persons to whom the description was given” The holding of the court was adopted by the Court of Appeal of Tanzania in various decisions including that of Waziri Aman vs R (1980 TLR 250, whereby the court reiterated authenticity of identification by raising the following fundamental issues: • What kind of light was on at the scene of crime at the time; • What was the intensity of that light; • What was the distance between the source of light and where the witness was; On the same vein, the Court of Appeal in the Criminal Appeal No. 197 of 2008 (Unreported) at page 7 added other fundamental issues that: • Whether the accused was known to the witness before the incident; • Whether the witness had ample time to observe and take note of the accused without obstruction such as attack, threats and the like which may have interrupted the latter’s concentration. In order to convict an accused person based on the identification at the scene of crime, all the above issues must be answered in affirmative. In respect to this appeal PW 1 testified in court that it was in the morning when sun light was shining when 3 the appellant after going to the rise farm came back to P W 1 asking for kitchen. May be they were asking for kitchen to cook something to eat before they proceed with work, details are not provided for. Therefore, the intensity of light is not doubted. The issue of distance from the appellant and PW1 cannot also be doubted because according to P W 1, the incidence took place when he was on the way to show them kitchen within his camp. The appellant was known to the victim for they met a day before and the two accused slept in PW1 ’s house and in the morning he took them to the farm. Therefore, the issue of mistaken identity did not arise. The issue of whether the victim had ample time to observe the appellant, the evidence of PW 1 leaves no doubt that the appellant and PW 1 knew each other prior to the incident and on the scene of crime. Accordingly, the court has no reason to doubt the credibility of the evidence of PW1 on identification of the appellant. Thus the first issue is confirmed that the appellant was properly identified. The second, key issue is whether the prosecution proved the case to the standard required by law. The onus of proving the guilty of the accused beyond all reasonable doubt solely lies to the prosecution. This in my mind means, to prove all the ingredients of the offence and eliminating any possible defence that is available to the charge. In the case of Sunderje VR (1971) HCD 316 and Tumbark Halbattthe V R (1957) EA at page 355, the judges insisted that a prima facie case must be one on which, a reasonable court directing its mind on the law and evidence before it, could convict if no explanation is given by the defence. Again in the case of Fanuel s/o Kiula v. R. (1967) HCD at 369, Chief Justice Georges set out a principle of proving criminal case that: 4 “It is not necessary to accept the evidence o f the accused in order to find him not guilty. All that an accused need to do is to raise a reasonable doubt as to his guilt”. In another case Moshi d/o Rajab V. R (1967) HCD 384 the magistrate’s judgment contained “no reference whatever to the evidence given by the prosecution witnesses,” but did state the magistrate’s belief “beyond all doubt” that the defence was “a pack of lies.” The High Court held inter alia that: uthe magistrate ‘s refusal to accept a defence as truthful is not a proper basis fo r conviction; here, the magistrate’s judgment did not give any indication that he was aware that the onus o f proving the guilt o f the accused is on the prosecution, or that he gave any consideration to the prosecution evidence ” There are series of authoritative cases of this court and of the Court of Appeal that the duty of the prosecution is to prove the case beyond all reasonable doubt, that no other person than the accused who committed the offence. This appeal, the prosecution called six witnesses, beginning with the victim PW 1 whose evidence was summarized at the beginning. In short PW 1 hired the appellant and his co-accused to harvest his rice farm, instead of performing the duty they were hired for, they turned against him. The evidence of PW 1 was corroborated by PW2 who witnessed the signing of the contract between the appellant and P W 1. Also same was corroborated by PW5 a medical doctor who treated the victim (PW1) and signed PF 3 which was tendered in court as an exhibit P i l l . The doctor in cross examination stated that, the patient (P W 1); 5 “I discovered the victim was injured on his right side o f the high borne 20 inches on his neck. Also other parts o f his face had some bruises”. In the same vein, PW6 testified that the appellant hired his bicycle because the appellant was known to him and were living in the same area. The bicycle used by the Appellant in committing the offence were identified by PW1 which were written Iddy Hamis. On defence, the appellant gave a totally different story, which has no relationship whatsoever with the accusation. The appellant did not disclose anything relating to PW1 and his rice farm, which in anyway failed to shack the prosecution evidence. I have carefully, reviewed the judgement of the trial court against the available evidences, I find no reason at all to decide otherwise than to agree with the findings and reasoning of the trial magistrate. In the Criminal Appeal No. 267 o f 2006 between Mkaima Mabagala V. R, the Court of appeal discussed at length on the reasoned judgement of a court of law as follows: - “For a judgement o f any court o f Justice to be held to be a reasoned one, in our respectful opinion, it ought to contain an objective evaluation o f the evidence fo r the defence which is balanced against that o f the prosecution in order to fin d out which case among the two is more cogent. Such an evaluation should be a conscious process o f analyzing the entire evidence dispassionately in order to form an informed opinion as to its quality before a form al conclusion is arrived a t Using this legal benchmark, I respectfully and confidently say that the trial court did live up to this requirement. The judgement of the trial court analyzed the evidence 6 of the prosecution logically and rightly arrived to the conclusion that the appellant was involved in the criminal act. This court arrives to the same conclusion. Without much to say, I am satisfied that the trial magistrate alluded to all features of the case against the appellant and the conviction and sentence of the appellant was according to law. In the circumstances, I am satisfied that there is no reason to decide otherwise than what the trial court so decided. Finally, the appeal is dismissed and the conviction and sentence by the trial court is sustained. Right to appeal to the Court of Appeal is explained. Dated at Dar es Salaam this 26th day of June, 2018 P. J. Ngwembe, J. 26/06/2018 Delivered at Dar es Salaam in Chambers on this 26th day of June, 2018; in the presence of the appellant and Ms. Monica Ndakidemi State Attorney for the respondent. P.J. Ngwembe, J 26/6/2018 7