20191103 TZCA Tabora

i. l',:~. . 1 #.~~ ~ :1" ··'o 'i IN THE COURT OF APP.EAL OF TANZANIA AT-TABORA r (CORAM: KIMARO, - l.A •• MBAROUK, I~.A., And MASSATI, J.A.) I CRIMINAL APPEAL NO. 99 OF 2007 1. REUBEN MHANGWA ] 2. KIJA REUBEN ] ...................................................APPELLANTS :I . VERSUS THE REPUBLIC ................................. L.......................;. . RESPONDENT- (Appeal from the convi~ion of the High Court of Tanzania at Tabora) · .I (Mwita, J.) . . th I . 'i dated the 4 day _ofil December, 2006 m· Criminal Sessions Case _________ No. ! _____ _ 65 of 2000 1 JUDGMENT OF. THE COURT 2 & 5 November 2009 ,. MASSATI, J.A.: The Appellants, were charged with and convicted of the offence of murder contrary to section 196 of the Penal Code and sentenced to death by hanging. This was on 4.12.2006. , I I Before the trial court, it was alleged that on the 2nd day of t ' ' . I November, 1998, at Buningozi VHl~ge in Bukombe District, Shinyanga I 2 Region, the appellants jointly murdered one NG'WEBELE s/o GODI. The Appellants pleaded not guilty but at the preliminary hearing, it was not disputed that the appellants were related and neighbours to the deceased; and that the cause of death was, ( according to the postmortem report which was admitted as Exh. Pl at the said preliminary hearing) due to haemorrhage. The facts as found by the trial court were that on 2/11/1998 at about 8.00 p.m., the deceased and some members of his family were sitting outside their homestead around a fire, warming their bodies. While there, they were ambushed by two men riding a bicycle and armed with a gun and machetes. One of them fired the gun, while the one with the panga set on the deceased and PW1 inflicted multiple wounds over the deceased's head and both arms. From these injuries the victim died 3 days later (on 5/11/1998) at Bukombe District Hospital. The appellants were then arrested and charged with the commission of the offence as shown above. 3 At the trial, the prosecution produced 4 witnesses who testified that with the aid of moonlight, they were able to identify the appellants as the assailants, and thieves of the deceased's bicycle. According to PWl, there was a bright moonlight which enabled him to see a person standing five paces away. According to PW2, although she was inside the house, with the aid of a very bright moonlight she was able to see and identify the appellants chasing the deceased and cutting him with a panga, and was also able to hear the deceased mention the name of the first appellant as the one who was killing him. PW3 was at a neighbour's house. While there, he heard an alarm from the direction of the deceased's (who was also his father) house. When he and others ran towards that direction, he was able to see the appellants riding in bicycles away from that scene. They shone a torch at him.· When he arrived there he found his father, the deceased fatally wounded near the cowshed. PW4 was also among those in the company of the deceased around a fire, who also said he saw and identified the appellants as they assaulted him; and witnessed the second appellant stealing the deceased's bicycle from the house. He insisted to have seen them with the aid 4 j: I • l of moonlight, and even described t~e attire put on by the second appellant. i I On the other hand, both the ~ppellants, having ,given a prior I written notice, testified and produfed witnesses to support their common defence of alibi. II I i I I In the light of the above evi~ence the trial court found that i although the evidence of identificatitn from PW1, PW2 and PW3 was doubtful, it was corroborated by thbt of PW4, who according to the trial court, was in close range a~d a longer encounter with the I' I appellants. On the appellants' defe~ce of alibi, the trial court treated it thus: I i I I "Having found that the ~ccused persons were properly identified at th~ scene of crime, their defence of alibi creates! no reasonable doubt regarding their presencJ at the scene of crime I at the material time.' l I 5 I The appellants were thus convicted as charged. f I. I i Mr. Medard Mutongore, learne1 counsel for the Appellants filed f a 3 point memorandum of appeal tq1 fault the trial court's judgment. /, In a brief but precise elaboration of /his grounds of appeal, which he I: argued together; the learned couns~I submitted that the evidence of I: identification in general was weak,/ as conceded by the trial court I when discussing the evidence of WWl, PW2 and PW3. But, the r - learned counsel went on, the trial ~ourt misdirected itself in finding I that the evidence of PW4 could corroborate that of PWl, PW2 and I' PW3; which he had already found sispect. I The learned counsel also I submitted that the appellants had given their defence of alibi which I the trial court treated perfunctorily. It was finally his submission that the evidence of identification left! a lot to be desired and the !' t reasonable doubts should be resolved in favour of the appellants. He I cited the case of HUSSEIN IDDI ~ND ANOTHER v R (1986) TLR I 116 (CA) to substantiate his point on the defence of alibi. I· I ! I I l1 I 6 Ii i Mr. Justus Mulokozi, the learned Principal State Attorney I f j: representing the Respondent/Rep~blic, did not support the t conviction. He fully supported Mr. /Mutongore's submission; but in ! I particular, he was of the view that once the trial court found the I I evidence of PWl, PW2 and PW3 inctdible, no other evidence could corroborate it, for incredible evidenG:e cannot be corroborated. He i said that it would be different if the dvidence of PW4 was in itself self 1: I sufficient, which in his view, was nft, because according to PW3 a 1' torch was shone onto him, which! suggests that if there was a I moonlight a torch would not have bJen used. Besides, the appellants r produced sufficient evidence to provi~ their alibi, which the trial court I t ignored. 1. i I I /: This is a first appeal. In a first appeal the court has powers to I . reevaluate the evidence on record ~nd come to its own conclusions. I I Our position is therefore that we are f not bound by the directions, I I i misdirections, or findings of the trial court. I 1: I r· I i: I 7 The issue that calls for determination and decision is whether .i the appellants were properly identified. It is for this reason that we set out the evidence of the prosecution witnesses above at length. 1 So we do not need to repeat it here. 1 I I After a close scrutiny of the prosecution case on record, we i note that there are two pieces of evidence that was placed against the appellants. The first piece iof evidence was that of the deceased's dying declaration. In this piece of evidence, we have the I I testimony of PW2, the deceased's.'I wife who said she heard the I deceased saying "Reuben mnataka, kuniua niacheni". I There is no other witness who claimed to have heard so. The law regarding dying declarations is that, it is a rule of practice that such evidence requires corroboration before it can be acted upon. Whether there I i was such corroboration we shall reserve it to a late stage in our judgment. The next piece of evidence la 1d against the appellants was that 1 of visual identification. According to the evidence, all the prosecution ' 8 I I witnesses identified both appellants, although the offence was I I committed at night. The learned tri~I judge found the evidence of I PWl, PW2 and PW3 discrepant, but ~lso found that the evidence of I PW4 corroborated the evidence of the other witnesses. As hinted I I above this attracted heavy critici$ms from both counsel who I appeared before us. I I, We agree with the learned trial judge in his analysis of the I I evidence of PW1, PW2 and PW3, a~d that it was discrepant on the I I question of identification, due to t~e disadvantaged positions and I I time of observation they had. We further agree with him, and the I I cases he cited of KANONYELAI v R (1992) TLR 100, and 11 I' MOHAMED SAIDI MATOLA v R (11995) TLR 3, that such evidence I I required corroboration. However, We do not agree with his finding I I that such corroboration was found lin the evidence of PW4; for the 1 1: following reasons. First, according/; to PW3, the robbers also had a I torch with them. If the moonlight was that bright as all the j· I prosecution witnesses claim, why :would the bandits use a torch? I I Secondly, PW4 said he was stand ing just 4 paces away from the 1 I 9 ' bandits. But PW1 and PW3 were als9 standing 5 to 6 paces away ' respectively; which to our mind, made very little difference. Thirdly, 1 PW4 was together with all the other witnesses. If the saga lasted for 30 minutes then all the witnesses, 'and not only PW4, had that advantage. We are of the opinion that on the whole, the trial court had no I ' reason to use double standards in :evaluating the witnesses, who ' were all at the scene of crime, exc~pt for minor differences. We think for that reason the evidence Qf PW4 too, was suspect. This I suspicion is further augmented by the fact that none of the other villagers who turned up for the alar~, and to whom PW4 described ' the first appellant as the attacker came to give evidence in court. In ' addition, neither the stolen bicycle nor the blood stained clothes of I the assailants or the gun used by; the robbers were produced in ' court. Their production as evidence, would, in our view, have gone a I long way to corroborate the proseqution case. But, lastly, but very important, it was a serious misdireq:ion on the part of the trial court ' j: I i, I I i to have found that the evidence of PW4 I corroborated that of PWl, I j, PW2 and PW3. I I I j I I On that point, we agree with M;r. Mulokozi, that discrepant or incredible evidence cannot be corrob,brated. As this Court said in I i AZIZ ABDALLAH v R (1991) T4R 7, and MBUSHUU alias f DOMINIC MNYAROSE AND ANOT~ER v R (1995) TLR, 97. I I I I I: "the purpose of corrobor~tion is not to give 1 validity to or credence t6I evidence which is I deficient or suspect or i~credible but only to 1: confirm or support that vtthich is sufficient, ... i f satisfactory and credible. 'f I I I So, once the trial court found that Ilthe evidence of PWl, PW2 and ! PW3, was suspect or doubtful, no lamount of evidence from PW4 1 i could corroborate their evidence. What is worse is that in our view, I j, i even the evidence of PW4 himself if flawed. In our view therefore, 1 the evidence of identification of the appellants, was weak and shaky. I I 11 The above analysis leaves nothing on record which could corroborate the deceased's dying declaration. It has been repeatedly held that it was unsafe to convict. on an uncorroborated dying declaration (See ADRIAN MASONGERA v R (Criminal Appeal No. 77 of 1999 (DSM) (Unreported). There is also a complaint about how the trial court treated the appellants' defence of alibi. As noted above, the appellants had given prior notice of their intention to raise the defence of alibi. But the trial court, did not, in our view treat it fairly, because he did not analyse even what the appellants and their witnesses said in their testimonies. As this Court said in HUSSEIN IDOi AND ANOTHER v R (supra) for which we are grateful to Mr. Mutongore, for drawing our attention: "it was a serious misdirection on the part of the trial judge to deal with the prosecution evidence on its own and arrive at the conclusion that it was true and credible without considering the defence evidence." I I ' I I 12 I i ! I In that case, the Court found tha~ in such circumstances the fr ' ,1 I conviction was unsafe. In GODSON HEMEDI v R (1993) TLR, 1993 I this Court also set aside a conviction gro,,Lnded on an uncorroborated ' I I dying declaration and rejection of the /appellant's defence of alibi. I There, the Court said: ,I ' I "In the light of the weakness of the I • ( prosecution case, the ,l appellant's alibi I supported by his own witness and that of the ,I 11 prosecution was wrongly rejected." i I I In the present case, we think, that had the trial court, properly I directed its mind on the issue of corrbboration, ! it would have found I• I I· that the prosecution case was weak, ~nd would not have rejected, or l I, treated the appellants' defence of alibj' so dismissively. f I ' Taking all the circumstances tobether with the appellants' alibi; l 11 ' prosecution case was proved we are unable to agree or find that the ,, ,, I beyond reasonable doubt. t I I 13 It is for the above reasons that w,e think that this appeal must I I i be allowed. The convictions of the appellants are hereby quashed. I I The sentences are set aside. We orderi the immediate release of the iI appellants from prison unless they are qtherwise lawfully held. I I I I I II I· DATED at TABORA this 3rd day </>f November, 2009. i I I I I I N.P. KIMARO JUSTICE OF APPEAL I: I M.S. MBARpUK JUSTICE OF APPEAL I I' I S.A. MASSATI i JUSTICE OF APPEAL I I,, i I I certify that this is a true copy of the original. I I 11 1' I =-- c:--=r -~ '1 ' I ( J.S. MGIITTA I ) DEPUTY REGISTRAR I' I i