salum salehe makaranga amin ndul vs republic 2022 tzhc 14982 6 december 2022

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA MOROGORO DISTRICT REGISTRY ATMOROGORO CRIMINAL APPEAL NO. 65 OF 2022 (Originating from Criminal Case No. 13 of 2021, Morogoro District Court at Morogoro) SALUM SALEHE MAKARANGA @AMIN NDUL APPELLANT VERSUS THE REPUBLIC RESPONDENT JUDGMENT Date of last Order: 17/11/2022 Date of Judgement: 6/12/2022 MALATA. J This is an appeal from the Decision of Morogoro District Court where the appellant was charged and convicted of offence of Armed Robbery contrary to section 287 A of the Penal Code cap 16 R.E 2019. It was alleged that, on 24*^*^ January 2021 at Kaumba Area within Morogoro District in Morogoro Region the appellant did steal the sum of TZS 200,000/=, mobile phone makes Huawei worth TZS 600,000, mobile phone make TECNO worth TZS 30,000, the properties of one John Mlabu and immediately before such stealing attacked the said JOHN MLABU with a panga in order to obtain the said stolen properties. When the charge was read over to the appellant, he pi.eaded not guilty to the charge. The prosecution called four witnesses to p'rOve the case. The appellant defended himself. At the end of trial, the appellant was found Page 1 of 11 guilty and convicted offence of Armed Robbery contrary to section 287 A of the Penal Code cap 16 R.E 2019 and sentenced to be imprisoned for thirty (30) years. Aggrieved with the conviction and sentence, the appellant lodged in this court the petition of appeal having thirteen grounds of appeal. Finally asked this court to quash the conviction, set aside the sentence. When the appeal was called up for hearing, the appellant appeared in person unrepresented, while the respondent enjoyed the service of Mr. Emmanuel Kaligi, learned State Attorney. The appellant had nothing much to say but prayed to the court to consider the grounds of appeal and the referred cases. Finally, he prayed that his appeal be allowed quash conviction and set'aside sentence, thence set him free. In reply thereof Mr. Kaligi, the learned State Attorney supported the appeal. Mr Kaligi outrightly informed the Court that, the Republic supports the appeal mainly three grounds.; One,the learned State Attorney on the issue of visual identification, he submitted that, the offence was .committed during night, thus identification was the key evidence to prove the case. PWl did not state the intensity of light used to identify the appellant, how it was and how it enabled him to identify the appellant. He did not provide details as to the distance between where the appellant stood to where he was. Identification was not favourable to PWl to identify the appellant. Finally, he submitted that PWl did not provide any peculiar description 'of the appellant differentiating for his unmistaken"' •'v ? i identity. Mr. Kahigi referred this Court to;the guiding principles on. identification as stated in the case of Waiiri Amani Vs. Republic Page 2 of 11 (1980) T.L.R 280, In order to rely on the evidence of ail possibilities of mistaken identity must be eliminated. Further Mr. Kahigi submitted on the credibility of PWl who failed to mention,the appellant as the one who committed the offence after having been identified. PWl didn't state the name of the accused as the one who robbed him but he mentioned him during examination. This is in contravention of the principle in case of Marwa Wangiri Mwita and Another Vs. Republic(2002)TLR 39. The ability to name the suspect at the earliest opportunity is important assurance of his reliability in the same way as unexplained delay or complete failure to do so should put a prudent court to inquiry on why he failed to do so at onset. Three, Mr. Kahigi submitted on the effect of failure to conduct identification parade. PWl testified that he was not familiar to the appellant but he came to know him after the incidence. In the circumstances identification parade was important to enable PWl identify the appellant, failure to do so is fatal as the accused was identified on dock which is not proper. This is in contravention with the principles propounded in the case of Abdul Farijara and another Vs. Republic, Criminal Appeal No. 99 of 2008, unreported, which is to the effect that it is trite law that, the test in an identification parade is to enable a witness to identify a person whom she/ he had not known before the incidence. Mr. Kahigi was of the view that, the appellant has to benefit from those fatal' errors, which are not mere errors but they touch to the very foundation of justice. He, thus, invited the court to re-evaluate the evidence in the circumstances and do justice according to law. Page 3 of 11 In rejoinder, the appellant had nothing but joined hands with Mr. Kahigi's submission. In disposing this appeal/' this court took into account issues of visual identification, credibility of evidence of PWl and effect of lack of proper identification and consideration of other evidence on record if it sufficed to warrant conviction. Upon determination of those issues this court will be in a position to decide on whether the prosecution has proved the case beyond reasonable doubt, thence conviction and sentence. It is the duty of the trial court to analyse and evaluate the evidence adduced before it, and where there is an appeal, it is the duty of the first appellate court to re-evaluate the same. In criminal Appeal No. 504 Of 2020.between Firmon MIowe Vs Republic^ the Court ofappeal had these to state; "In this regard, in Michael EUas v. Republic, Criminal Appeal No. 243 of2009(unreported), the Court stated as follows: "On a second appeal, ive are supposed to deal with questions of law. But this approach rests on the premise that the findings of facts are based on a correct appreciation ofthe evidence. Ifboth courts completely misapprehended the substance,. nature and quality of the evidence, resulting in an unfair conviction, this court must, in the interests ofjustice interfere." We are equally aiive todhe settled position that where,ttie first, appellate court fails to re-appraise the evidence, since the first appeal is in effect a re-hearing of the case, this Court may step into its shoes and evaluate the evidence on record or remit the case back to the first appellate court for rehearing. Particularly, Page 4 of 11 in Hassan Mzee Mfaume v. Republic[1981]T.LR.167the Court held as follows among others: "(U) A:judge on first appeal should re-appraise the evidence because an appeal is in effect a rehearing the case; Where the first appellate courtfalls to re-evaluate the evidence and consider materiai issues involved In a subsequent appeal, the court may re-evaluate the evidence in order to avoid delays or may remit the case back to the first appellate court" It is therefore the duty of this court exercising first appellate power to do what the trial court failed to do, if satisfied otherwise. Based on the evidence adduced during trial and the grounds of appeal presented before the court, I find it pertinent to start with the issue of visual identification. The law in relation to evidence of visual identification is^well settled in Tanzania. The Court of Appeal has in various judgments decided on how to approach and apply the evidence of visual identification. Without exception, the evidence of visual identification especially if incidence occurred at night hours requires, a careful approach as it has been considered to be the weakest evidence, and since in this case the incident happened at night the court ought to be satisfied itself of the credibility of evidence of visual identification. In the case of Waziri Amani the Court of Appeal observed thus: . "The first point we wish to make is an elementary one and this Is that evidence of visual Identification, as Courts in East Africa and England have warned In a number of cases, is of the weakest kind and most unreliable. It follows therefore that no court should act on evidence of visual Identification unless Page 5 of 11 all possibilities of mistaken identity are eliminated and the court is fully satisfied that the evidence before it is absolutely watertight."(Emphasize is mine). In view of thereof, the trial Cohrt before acting on the evidence of visual identification, it should, as a matter of principle, warn itself as to the possibilities of mistaken identity and water tightness of such evidence. Short of that, the trial Court may find itself convicting innocent person I based on mistakenly identity of the culprits. In the case of Said Chaly Scania Republic, Criminal Appeal No. 6'5o/'2^(95(Unreported), the Court of Appeal observed as follows: 'We think that where a witness is testifying identifying another person in unfavourable circumstances iike during the night, he must give dear evidence which leaves no doubt that the identification is correct and reliable. To do so, he will need to mention ail the aids to unmistaken identification like proximity to the person being identified, the source oflight, its intensity, the length of time the person being identified v/as within view and also whether the person is familiar or stranger". This court has careful gone the trial court's records as alluded by prosecution witnesses on how issue of identification was not proved in line with the principles highlighted herein above. At pages 9-10 of the proceedings PWl testified that, 'f did not know you before the action Ican to know you after action The action took at OOiOOhrs I only saw you by the light ofthe bar" PW2 WP.6841 D/Cpl Betina, at page 20 of the proceedings testified that; Page b oT11 "7 do not know the qualification for identification parade The victim- identified you so there was no need for the parade The victim heard the name ofAmin Nduii at the scene There was no need for identification parade as the complainant saw the accuseds It is clear that, PWl managed to identify the appellant through the light of the bar, however in his testimony PWl did not state the intensity of light during that particular time,iand how it enabled him to identify the appellant. Further, PWl did nob state the distance between where the appellant stood to where he was. It is evident also that, much as-the incidence occurred at 00:00hrs and that PWl did not know the appellant before, there was no identification parade. This is confirmed by PWl and PW2. These'elements are vital in eradicating possibilities of mistaken identity. In the absence of those elements, I am inclined to hold that the evidence of visual identification was wrongly relied by the trial court. On the issue of credibility, there are two sides on this ground; this observed that;. First, PWl did mot.mention or. name the appellant at the earlier stage that, he is the one who committed the offence at that night. Here, I am guided by of Marwa Wangiti v. Republic[1992] T.LR. 39, where the Court of Appeal emphasized the importance of a witness to name a suspect at an earliest time. It observed that; "The ability Of a witness to name a suspect at the earliest opportunity is an all-important assurance ofhis reliability, in the same way as unexplained delay or complete failure to do so should put a prudent court to Inquiry" Page 7 of 11 The ability of a witness to name a suspect at the earlier possible opportunity is an important assurance that indeed the victim identified'the appellant at the scene. It is evident that, when testifying, PWl informed the trial court that he did not know the appellant before the incidence, he came to know him after the incidence. As such, he did-not know the the appellant, the question is, why he named the appellant as the one who committed the offence while he was not familiar with him. This casts doubt thereof. Second, on the issue of identification parade, the Court of appeal in the case of Abdul Farijalah and another v. Republic,(supra), explained the purpose of identification parade as follows; "... It is trite iaw that the test in an identification parade is to enabie a witness to identify a person or persons whom she or he had not known or seen before the incident... An identification parade heid soon after the incident in which a witness positively identifies an accused lends assurance to the court of that witness's dock identification ofthat person" Although, there are court decisions which goes further to what should be done before the identification parade, that the witness must have earlier given a detailed description of the suspect before being taken to Identification parade. In EmiUan Aidan Fungo @Alex and Another ir. Republic, Criminal Case No.278 o/'26'^?5'(unreported), it was held that; "It is trite iaw thatfor any identification to be ofany value, the identifying witness(es) must have earlier given a detailed description ofthe suspectbefore being taken to the identification parade" Page 8 of 11 In this case, PWl did not give any detailed description of the appellant at the time he wrote his'statement to the police which could have helped to identify the appellant during the identification parade, however as per PW2 there was no identification parade conducted for the reason that, the victim named him but PWl said he did not know the appellant before. This court finds merit on the issue of identification that, the trial court missed the boat by failure to abide to the principles stated herein above against the evidence adduced, thus it is upheld. This court spend time to look at other evidence adduced by the prosecution side, this includes, the cautioned statement of the appellant herein where it said that the appellant admitted to have committed the offence. Cautioned_.statement was admitted as exhibit PI, It is evident that. Exhibit PI was illegally admitted as the appellant was not given right to comment before the same being tendered and admitted as exhibit. The above mischief weakened prosecution case as the cautioned statement was ineffectual. Further, the appellant was not found with properties alleged to have been stolen in the robbery incidence. This also watered down the strength of the prosecution case. From the above re-evaluation of evidence used by the trial court in arriving to conviction and sentence, I am satisfied that the Appellant was convicted based on weak evidence which fall short to prove the offence beyond reasonable doubt.-The reasons thereof includes, one no iclentification of the accused by the prosecution side, two^ no identification parade was conducted to enable the victim identify the appellant, three, lack of credibility of the witnesses and evidence adduced, four, cautioned Page 9 of 11 statement admitted without affording the accused right to comment before being admitted as exhibit, five, exhibit being admitted for identification rather than being as evidence, s/xappellant not found with stolen: properties, appellant was not named by victim to prove that he properly identified the victim, eight, was no special description ever been given by the victim differentiating the victim from other person in the street, nine, no description viability of light which enable the victim to identify the accused and ten, no explanation as to distance from where the victim stood to where the appellant was thus identifying him. All said and done, I am of the settled view that, the trial court missed the boat in traveling within the ambits of what the law required him to do in assessing evidence before arriving to VES'or NO,that is to say, convicting or not. Afore mentioned mischiefs touch the heart of the matter, thus, affecting justice if not considered, as it happened in this case. Consequently, I am positively persuaded to agree with both the appellant and State Attorney that, conviction and sentenced rooted from weak evidence as herein above described. Having so said and for the reasons set above, I allow the appellant's appeal, quash the conviction of the appellant for the offence of Armed Robbery contrary to section 287A of the Penal Code, and set aside the sentence of imprisonment of thirty (30) years imposed on the appellant. This court orders that, the appellant be released forthwith from prison unless lawful held for any other lawful course. It is so ordered. Page 10 of 11 DATED at MOROGORO this 6^*^ daj/ of December, 2022 G.PJ^WA JUDGj 6/12/2o| Court: Judgment delivered in chamber this 6*^^ day of December, 2022 in the presence of Mr. Emmanuel Kahigi, State Attorney and appellant who appeared in person. OF o ry (J G.P. MA A :cr X JUDG 6/12/20 Page 11 of 11