CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT MOSHI (CORAM: LEVIRA, J.A.. GALEBA, J.A. And ISMAIL. J.A.^ CRIMINAL APPEAL NO. 577 OF 2020 GERALD STANSLAUS MREMA @ OM BENI.....................................APPELLANT VERSUS THE REPUBLIC..........................................................................RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Moshi) (Mgtungi, J.) dated 29th day of September, 2020 in Criminal Appeal No. 369 of 2018 JUDGMENT OF THE COURT 6th & 9th August, 2024 ISMAIL, J.A.: This second appeal is yet another attempt by the appellant to protest his innocence, following his conviction of robbery with violence that culminated in the imposition of a 15-year custodial sentence. The conviction and the sentence were upheld by the High Court following the dismissal of his appeal that sought to reverse the trial court's verdict. The allegation against the appellant at the trial was that, on 4th August, 2018, at about 21:00 hours, he invaded a certain Ms. Rahel Edom Mrema (PW1) and got away with a sum of TZS. 120,000.00. The incident allegedly occurred at Kiwalaa-Mbokomu area within Moshi District, Kilimanjaro Region. At the time of the incident, PW1 was walking back to her home from the market. Midway through her journey, PW1 was invaded by an assailant whose face had been masked by a black cloth. During the scuffle, PW1 removed the piece of cloth and, with the aid of the light of a torch, she identified the assailant as being the appellant. PW1 further alleged that in the said tussle, the appellant got the better of her, inflicted a tooth-bite on her face which took her to the ground. PW1 passed out as a result. It is then that the appellant grabbed the said sum of money from PW1 and ran away. She regained consciousness the following day, when she found herself at home. She narrated her ordeal to her husband who led her to the police where a PF3 (exhibit P2) was issued for her treatment. Extra-ordinarily, PW1 offered herself for treatment after a lapse of six days. She was attended by Dr. Shakila Rished Rashid, PW3. A police swoop culminated in the arrest of the appellant who, on interrogation by PW2, D/Sgt Geofrey, denied any involvement in the robbery incident. A pair of sandals and a scuff, allegedly belonging to the appellant, were tendered by PW2 and admitted as exhibit PI. On arraignment in court, the appellant, who was found to have a case to answer, denied any wrong doing. He alleged that he and the victim had an axe to grind following the victim's delays in effecting payment of the sum that she owed the appellant. The appellant further contended that the bad blood with PW1 was also caused by the conflict that existed between him and PWl's son. The trial court was convinced that the guilt of the appellant had been established. Accordingly, it convicted and sentenced him to imprisonment for 15 years. This verdict bemused the appellant and he wasted no time as he launched an appeal against it. Dismissal of the appeal did not go well with the appellant. His bemusement triggered the instant appeal whose memorandum of appeal has raised six grounds of appeal which, for reasons that will be apparent in the course of this decision, we shall not reproduce them. When the matter was called on for hearing, the appellant appeared in person, unrepresented, whereas the respondent enlisted the services of Ms. Rose Sulle, learned Senior State Attorney, assisted by Mr. Isaack Mangunu, learned State Attorney. The appellant urged us to receive his memorandum of appeal and let the respondent submit on it while reserving the right to rejoin to the submissions. Ms. Sulle began her submission by expressing her support of the appeal. The learned Senior State Attorney opted to narrow down her arguments to only grounds one and four of the appeal both of which 3 attacked the 1st appellate court's finding that the appellant was positively identified by the victim of the alleged incident. Ms. Sulle took a serious exception to such findings, arguing that the conditions favouring proper identification were not met. In cementing her position, the learned Senior State Attorney enumerated several doubts and shortfalls which she considered as a negation of what the lower courts held. One, that the incident occurred at 21:00 hours and that, while a torch was used to illuminate the area and identify the appellant, there was no clarity on who held the said torch. Two, that the intensity of the light was not explained. Three, the distance between the assailant, the appellant in this matter, and PW1, the victim, was not stated; and four, it would not be possible to identify a person who covered his face with a mask or a piece of cloth. Ms. Sulle concluded by submitting that these shortfalls are significant and serious, and it could not be said that PW1 positively identified the appellant as her assailant. She urged us to allow the appeal, quash the conviction, set aside the sentence and order the appellant's release from prison. The appellant was a man of few words. While supporting the submissions made by his counterpart, he urged the Court to declare his innocence and set him free. 4 From these unanimous representations, the single issue for our determination is whether the appellant was positively identified as the perpetrator of the robbery incident. As we delve into the substance of the submissions made by the parties, it is apt to restate the settled principle with regard to identification. It is to the effect that an accused person's guilt may be founded on visual identification. The condition precedent, however, is that such identification must be watertight and foolproof as to leave no possibility of mistaken identity. It must pass the test propounded in our legendary decision of Waziri Amani v. Republic [1980] T.L.R. 250. This test has been restated many a time subsequent thereto. In Alfredy Kwezi @ Alfonce v. Republic, Criminal Appeal No. 216 of 2021 [2022] TZCA 355 (16 June 2022, TANZUI) we held as follows:- "We think it is appropriate to start by reiterating the principle enunciated in an unbroken chain of decisions o f this Court including; Waziri Amani v. The Republic (supra) and Raymond Francis v. The Republic[1994] T.L.R. 100, that before a court can found conviction basing on visual identification, such evidence must be watertight so as to remove the possibility o f honesty but mistaken identity. In such cases court is required to consider, among others, the following matters: one, the time the witness had the accused under observation; two; the distance at which he 5 observed him; threef the conditions in which such observation occurred, for instance whether it was day time or night time, whether there was good or poor lighting at the scene; four, whether the witness knew or had seen the accused before or not; and five, all factors on identification considered, it should also be plain that there were no any material impediment or discrepancies affecting the correct identification o f the accused person by the witness (see the case o f Kazimiri Mashauri v. The Republic, Criminal Appeal No. 252 o f 2010 (unreported)." The important take away from the quoted excerpt is that, where a person suspected of the wrong doing is identified at night, it must be proved that there was light and that the source of the light was stated and so is the intensity of such light. This is irrespective of where the identifying witness purports to recognize the suspect - see: Kulwa s/o Mwakajape & 2 Others v. Republic, Criminal Appeal No. 35 of 2005; and Ally Mohamed Mkupa v. Republic, Criminal Appeal No. 2 of 2008 (both unreported). In the instant case, the testimony adduced by PW1 is to the effect that the torch light is what aided her to identify the appellant. From this testimony, a few issues have emerged and, as correctly argued by Ms. Sulle, there is no clarity as to who held the torch as to enable her to see 6 the appellant and recognize him, even where he had his face covered. The intensity of the light that was emitted by the said torch is also a question that has gone unanswered, and we are left to speculate if the light was bright enough to enable PW1 to clearly identify him without any possibility of mistaken identity. If we may be allowed to assume that the torch was held by none other than the victim herself, the question that follows is, how did she manage to hold the torch firmly and flush it towards the appellant while she was, at the same time, engaged in brawls with the appellant? At some point, she had to succumb to the heavy blows and bites and pass out. There is yet another intriguing question that has also left Ms. Sulle wondering as it did to us. How would PW1, even with the aid of the torch, identify the appellant while his face was covered with a piece of cloth? Would such identification be said to be favourable and, was it watertight? In our considered view, that is an absolute impossibility, especially where PW1 chose to be economical with facts relating to the time she allegedly lifted the veil off the appellant. Diving deep into the aspect of light of the torch that facilitated the unveiling of the appellant as PWl's tormentor, we have also considered that possibility that the same was held by the appellant and shone to the direction of the PW1. If this is what PW1 intended to impress upon us, our settled view is that such contention is inconceivable as the torch held by the assailant and flushed in the direction of the victim would not enable her to see and identify her assailant. We have held this view on several occasions. In Michael Godwin & Another v. Republic, Criminal Appeal No. 66 of 2002 (unreported) we guided as follows: "It is common knowledge that it is easier for the one holding or flushing the torch to identify the person against whom the torch is flushed. In this case, it seems to us that with the torch tight flushed at them, (PW1 and PW2), they were more likely dazzled by the light. They could therefore not identify the bandits properly. In that case, as Mr. Mbago, correctly conceded, the possibility o f mistaken identity could not be ruled out/'[Emphasis added]. We reiterated our stance in the subsequent decision in Bariki Kinyaiya, Jacob Hubert & Elioani Kinyaiya v. Republic, Criminal Appeal No. 220 of 2007 (unreported) wherein we held: nOrdinary human experience is that a person uses a torch, otherwise known as flashlight in American English to enable them to see an object ora person in front of the user but without the user being clearly seen by the person shone at because of the blinding effect of such light on that other person. It may be possible, however, for a person in front of the user of the torch who is not directly shone at to see and identify the person using the torch if the light from the torch is reflected by a shiny wall or object._Otherwise, usually, it is not easy to identify reliably the user o f the torch who directs the light from the torch to objects in front o f or around them. In the case under discussion there was no evidence that the light from the torches was reflected by the walls o f the room or by shiny objects in the room. "[Emphasis supplied]. We are not convinced, one bit, that in the circumstances of this case, what is contended to be a visual identification, which was the basis of the appellant's conviction, met the threshold set by the law to justifiably point an accusing finger at the appellant. It is simply that his guilt was not proved and established, and the logical conclusion is that the appeal is not devoid of merit. As we draw this conclusion, it behooves us to reproduce an excerpt from the persuasive holding in an English case of S [an infant] v. Manchester City Recorder and Others [1969] 3 All E.R. 1230. This decision underscored the importance of courts convicting only those who are guilty as proven to be so by the evidence adduced. It was held: "The desire o f any court must be to ensure so far as possible that only those are punished who are in fact guilty. The duty of a court to dear the innocent must be equal or superior in importance to its duty to convict and punish the guilty. Guilt may be proved by evidence. .. "[Emphasis is added]. In consequence of the foregoing, we find merit in the appeal and we allow it. Accordingly, we quash the conviction, set aside the sentence and make an order that the appellant be immediately set free from custody unless held for some other lawful cause. DATED at MOSHI this 8th day of August, 2024. M. C. LEVIRA JUSTICE OF APPEAL Z. N. GALEBA JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL The Judgment delivered this 9thday of August, 2024 in the presence of the Appellant in person - unrepresented and Ms. Rose Sulle, Senior State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. D. R. LYIMO DEPUTY REGISTRAR COURT OF APPEAL 10