republic vs almas iddy almas and another 2020 tzhc 4198 11 december 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE DISTRICT REGISTRY OF KIGOMA) AT KIGOMA (ORIGINAL JURISDICTION) CRIMINAL SESSION CASE NO 30 OF 2020 (PI Case No. 3 of 2020 Kigoma District Court) THE REPUBLIC VERSUS 1. ALMASI S/O IDDY © ALMASI 2. IBRAHIMU S/O RAMADHANI JUDGMENT 10th & 11th December, 2020 I.C. MUGETA, J. It is alleged that on 13/3/2020, the accused persons, while pretending to be game rangers, arrest Juma Muhama. The incident took place at his residence at around 23.00 hours in the presence of Astilda Kasuyi (PW1), the wife of the deceased, and Juma Musa (PW2). Juma Muhama went missing until on 21/3/2020 when he was found dead and his body floating on the waters of Lake Tanganyika. He had a rope tied on his neck and a heavy rock hanged underneath the water like an anchor. Upon examination of the body, a medical doctor, Dr. Hamis Said Mwirangi (PW4) confirmed he died of asphyxia due to hanging. In normal parlance that term means suffocation. The accused persons were arrested and information for murder c/s 196 and 197 was preferred against them. The Report on Postmortem Examination was tendered as exhibit Pl. Astilda Kasuyi and Juma Musa testified that they identified those who arrested the deceased by use of solar lump which illuminated the area and was bright enough to provide sufficient light for one to see well. That, those people spent more than ten minutes with them and they were close at approximately a distance of 3-6 paces away. On his part, Astilda identified both accused persons while Juma Musa identified the first accused only by both his countenance and voice. The two witnesses testified to be familiar with the suspects before the incident. According to Astilda, after the deceased was abducted she phoned their son Athman Juma (PW3) to inform him about the incident. Athman confirmed this incident but he was clear that his mother did not mention those who took away his father. He testified further that on 14/3/2020, when they reported the incident to the police, up to 21/3/2020 when the body was recovered he heard nobody talking about knowing those who abducted his father, the deceased. On his part G.7329 DC Lupakisyo (PW5) who investigated the case testified that Astilda told him that the deceased had been arrested by the accused persons. 2 In defence, both accused persons raised the defence of alibi. Almas Idd (DW1) said on the incident date he was in Kigoma. He travelled to Kigoma on 12/3/2020 and he tendered the travel ticket as exhibit DI. In this respect he was supported by Rajab Idd (DW2) who is his elder brother and Sadiki Almas (DW3), his son. Both of them testified to have picked the first accused at the bus stand on 12/3/2020. On 20/3/2020, the first accused and his son Sadiki travelled back to Kalya by boat. The second accused testified that at the incident time he was at his village at Kashagulu. Upon summing up, both the gentleman and lady assessors entered a guilty verdict. They were satisfied that the conditions at the time of arresting the deceased favoured a correct identification and they found Astilda (PW1) and Juma (PW2) as credible witnesses. This case centres on evidence of visual identification and credibility of witnesses. I have examined the prosecution evidence on visual identification and have no problem with the conditions of light, the distance and the clarity of the view to have favoured a correct identification. However, it is the law that even when conditions favoured a correct identification another factor for consideration is the credibility of witnesses. Are Astilda (PW1) and Juma Musa (PW2) credible witness? While the gentleman and lady assessors found them credible, I have a serous reservation on their reliability. Firstly, despite being familiar with the accused persons, they never questioned them when they pretended to be game rangers when they arrested the victim. Counsel for the accused persons, on cross examination, pressed each of them for explanation as to why they did not tell the accused persons that they are not game rangers but they did not give any plausible explanation. It is uncommon that PW1 and PW2 left the deceased to be abducted under false pretence without resistance where there is no evidence that, the kidnappers had any life threatening weapon. Secondly, it is the law that reliability of a witness who claims to be familiar with the suspect is enhanced when he mentions the suspect to another person at the earliest possible opportunity. While Juma Musa admitted to have told no one about identifying the culprits, Astilda told DC Lupakisyo (PW5) who confirmed that incident herein court when he testified. However, she met him on 14/3/2020 which was not the earliest opportunity to mention the culprits. The earliest opportunity presented itself when she phoned their son Athman (PW3) immediately after the arresting of the victim. However, Athman is on record that his mother never mentioned the suspects. I am, therefore, settled in 4 my mind that Astilda (PW1) and Juma (PW2) are unreliable witnesses. I understand each witness is entitled to credence per the case of Goodluck Kyando v. R. [2006] TLR 300 but for the stated reasons, the two witnesses are incredible. It was easier for PW1 to tell her son (PW3) who the suspects are than DC Lupakisyo (PW5). The gentleman assessor in his opinion discredited the reliability of the evidence of the first accused person because the ticket which he tendered as exhibit DI could easily be purchased even when one is not a traveler. When the first accused stood in the witness box, the learned State Attorney, on cross examination, put to him questions suggesting that possibility. However, there is no evidence to that effect on record. The 1st accused filed a notice of alibi and he stated the nature of his defence in that notice. It was upon the prosecution to disprove the alibi by evidence to the contrary and not to rely on speculations based on common possibilities. As I have held, each witness is entitled to credence. On record is the evidence of Idd Rajab (DW2) and Sadiki Almas (PW3) who testified that they stayed with the first accused in Kigoma from 12/3/2020 - 20/3/2020. This evidence is completedly uncontroverted and these witnesses are entitled to credence. 5 It follows that, for the prosecution's case, once the evidence of Astilda (PW1) and Juma (PW2) is discredited, there is no other independent evidence upon which conviction can be grounded. Therefore, not only that the prosecution evidence is incapable of proving the murder information but also that the defence case raises serous reasonable doubts in the prosecution's case. In the end, I am satisfied that the information of murder c/s 196 and 197 of the Penal Code has not been proved. I find both accused persons not guilty and I, accordingly, acquit them of the offence charged. Court: Delivered in open court in the presence of the accused persons and their advocates Edna Aloyce and Benedict Kivuma State Attorney for the Republic. Sgd: I.C. MUGETA JUDGE 11/12/2020 6