Judgement Criminal Appeal No

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT MOSHI CRIMINAL APPEAL NO. 17974 OF 2024 (C/F Criminal Case No. 45 of 2023 in the Resident Magistrates’ Court of Moshi at Moshi) GODFREY PETER KWAI…..…….............................................. APPELLANT VERSUS REPUBLIC....………………………………………………….… RESPONDENT JUDGEMENT 02nd & 30th September, 2024 MONGELLA, J. The appellant was arraigned in the Resident Magistrates’ Court of Moshi at Moshi (henceforth, the trial court) for armed robbery under Section 287A the Penal Code [Cap 16 R.E 2022]. The particulars of the offence were to effect that: on 08.03.2023 at Otaruni village, Kibosho Kati Ward in Moshi District, Kilimanjaro Region, the appellant stole cash money amounting TZS. 250,000/= belonging to one, Apolinary Babu Chuwa. Both, before and after stealing, he attacked the said Apolinary Babu Chuwa (the victim or PW1, hereinafter) by using a sword in order to obtain and retain the money. Page 1 of 20 The appellant denied the charge levelled against him. To prove the case against him, the prosecution paraded 4 witnesses and tendered one exhibit. The Prosecution’s account was as follows: On the material day of 08.03.2023 at around 19:00hrs, PW1 went to follow his wife (PW2) at her shop located at Otaruni village. They closed the shop at 20:00hrs and PW1 took TZS. 250,000/=. They walked home and at a distance of 50 Metres, they met the appellant who was holding a machete. He attacked PW1’s hands and took off with the bag that had the money. PW2 took PW1 to a neighbour whereby a motorcycle was found and PW1 was taken to Kibosho Hospital. PW4, a medical doctor, attended PW1 who had sustained injuries on his head and both hands. PW1 was admitted at the hospital for three (3) days. PW4 filled Police Form No. 3 (PF 3) and gave the same to PW2. The PF3 was admitted as Exhibit P1. On 13.03.2023, PW3, a police officer, was assigned the file concerned with investigation of an offence of grievous harm. He visited PW1 who mentioned to have been injured by the appellant who also stole money from him. Thereafter, the appellant was arrested on 31.03.2023 and interrogated. It was alleged that he admitted committing the offence. In his defence, the appellant stood for himself. Testifying as DW1, he alleged that he came to Moshi on 14.12.2022 for Christmas Page 2 of 20 celebrations and PW2 had been disturbing him requesting that they become lovers. That, upon refusal, she promised to deal with him. Both victims, especially PW1 and the appellant testified that the appellant was their neighbour and that he had let PW1 cultivate a farm he inherited from his parents following a request from PW1. He said that PW1 was to cultivate on the farm for two years, that is, 2021 and 2022. That, on 02.01.2023, he met PW1 and informed him that he was leaving for Arusha, but would be back to cultivate his farm himself. That, on 29.03.2023, he called PW1 informing him that he was going back to Moshi to cultivate the farm. PW1 told him that he shall continue cultivating the farm owing a debt he owed his deceased father and thus he would not let him cultivate it. That, PW1 further threatened to deal with him if he would continue to follow up on him regarding the farm. He testified further that on 30.03.2023 he came to Moshi, but while on his way, PW2 called him and inquired on his whereabouts. After telling her his location, PW2 told him that she was waiting for him at Moshi town. When he arrived at Moshi bus stand, PW2 received him and asked him to escort her to Moshi Central Police Station. When they arrived, he was arrested and locked up. Then on 31.03.2022 he was interrogated and forced to sign some papers without being accorded the opportunity to read the same. The trial court found the offence against the appellant proved beyond reasonable doubt. The appellant was thus convicted and sentenced to serve 30 years in prison. Aggrieved by his conviction Page 3 of 20 and sentence, the he preferred this appeal on the following grounds: 1. That, the learned trial Magistrate erred in law and factual analysis when she failed to note that the question of familiarity will only hold if the conditions prevailing at the scene of crime were conducive for correct and proper identification. If the conditions are not conducive for correct identification, then the question of familiarity does not arise. 2. That, the learned trial Magistrate erred both in law and factual analysis when she believed that the appellant was positively identified at the scene of crime while the circumstances and conditions favouring a proper correct identification were not conducive. 3. That, the learned trial Magistrate erred both in law and factual analysis when she failed to note that the credibility of witness is enhanced by the ability of a witness to name a suspect at the earliest opportunity. 4. That, the learned trial Magistrate erred both in law and factual analysis when she failed to note that essential prosecution witnesses were never summoned to testify. 5. The learned trial Magistrate erred in law and factual analysis when she failed to note that there is material variance between the charge and the evidence adduced. Page 4 of 20 6. The learned trial magistrate erred in law and factual analysis when she relied upon weak, inconsistency, contradictory, with material discrepancies and uncorroborated prosecution evidence. 7. The learned magistrate erred in law and factual analysis when she failed to note that the charge against the appellant was not proved beyond reasonable doubt. Following consensus by the parties, the appeal was resolved by written submissions. The appellant stood for himself while the respondent was represented by Mr. Frank Daudi Wambura, learned State Attorney. In his submissions in chief, the appellant did not indicate what ground he was submitting on. He generally submitted on the grounds of appeal. The appellant commenced by addressing the question of identification of the alleged culprit at the crime scene. He contended that it is trite law that in a case whose determination depends on identification, the evidence must be airtight prior to conviction being safely entered. Speaking about the Court’s stance in dealing with identification by recognition, he referred the case of Juma Magori @ Patrick & Others vs Republic (Criminal Appeal No. 328 of 2014) [2015] TZCA 456 (5 June 2015) TANZLII saying that the Court warned about dangers of mistaken recognition. Arguing further, he cited the case of Waziri Amani vs. Page 5 of 20 Republic [1980] TLR 250 which laid out factors to be considered in visual identification. He mentioned the said factors to include; duration of the incident, distance of observation, time of the day, familiarity and existing impediment to sight. To further cement on factors for identification, he made reference to the case of Pascal Christopher & 6 Others vs. The DPP, Criminal Appeal No.106 of 2006 (unreported). The appellant further challenged that it was unknown for how long he was under observation of PW1 and PW2 so as to be clearly identified. He claimed that the mere allegation by PW1 and PW2 that they knew him was insufficient as they failed to explain on whether they had a special reason for remembering him considering that they had never elaborated on how they came to know him, in what circumstances and for how long. The appellant also faulted the lighting at the crime scene whereby he contended that neither PW1 nor PW2 testified on the intensity of the light at the crime scene. Explaining on their testimonies, he averred that PW1 testified that there were two electric bulbs from a milling machine which enabled him to identify the appellant. He added that PW2 testified that there were bright electric tube lights. Considering that the evidence on record indicated that there was about 7 metres from the milling machine to the crime scene, he had the stance that there was need to mention the intensity of the light and the area illuminated. In addition, he contended that the omission to demonstrate the said factors rendered the assertions of PW1 and PW2 bare and not ruling out the possibility of a mistaken Page 6 of 20 identity. Referring the case of Issa s/o Mgara @ Shuka vs Republic, Criminal Appeal No. 37 of 2005 (unreported), he considered the omission fatal. Submitting further, the appellant argued that there was no evidence suggesting that he was mentioned at the earliest opportune time. He said that both, PW1 and PW2 did not testify that they mentioned the appellant at the police or to any other person after the incident. In his view, the unexplained delay to name the accused before people who responded to the alleged alarm or investigating officer or other authority cast doubts as to the credibility of the witness. He cemented his argument with case of Samwel s/o Nyamhanga vs. Republic (Criminal Appeal No. 70 of 2017) [2020] TZCA 301 (17 June 2020) TANZLII. The appellant further pointed out contradictions in the testimony of PW1 and PW2. Explaining the contradictions, he averred that PW1 testified that after the incident they went to one, Meta Soraiya whereby they found a motorcycle and he was rushed to the hospital. That this was after PW2 had called his relatives and the incident reported to the police. On the other hand, he said PW2 testified to have run away from the crime scene and went to Meta Soraiya’s house and after returning to the crime scene she found her husband and other people arrived at the crime scene. That, PW2 further stated that they went to Kitimbwe’s house and found a motorcycle. Page 7 of 20 Arguing further, the appellant contended that none of the people PW1 and PW2 mentioned were told the description of the assailant and they never appeared to testify in court. challenging further the prosecution evidence, he contended that there was also no evidence that the police were informed on who the assailant was when the incident was reported to them. He added that no police officer testified to clarify on the first report allegedly received and if the same included the identity of the culprit. Lastly, the appellant challenged the charge as being at variance with the evidence adduced. He reasoned so due to particulars of the of the offence being different from the evidence adduced. Expounding on his point, he contended that while the charge was armed robbery, PW3 indicated that he was required to investigate on grievous harm. That, it was in the interrogation that PW3 was informed by PW1 that it was the appellant that injured him. In his view, this proves that there was no any report made regarding theft or armed robbery, but rather grievous harm. He averred that PW3 was questioned by trial court on the change, but he never gave any reason for such change on the offence charged. Finalizing his submissions, the appellant averred that the cumulative effect of contradictions, flaws and deficiencies that were never considered by the trial court was to render the prosecution evidence doubtful. In the premises, he prayed for the appeal to be allowed. Page 8 of 20 The respondent opposed the appeal. In the reply submission by Mr. Wambura, the 1st and 2nd grounds were collectively addressed. Mr. Wambura first acknowledged the position of law in respect of identification and recognition of a suspect. He submitted that the law as settled in Daudi Loti Mollel @ Masai vs. Republic (Criminal Appeal No. 306 of 2021) [2024] TZCA 119 (23 February 2024) requires certain conditions to be met. He explained that in the mentioned case, the Court stated the following conditions to be observed: one, the time the witness had the accused under observation; two, the distance at which he observed him; three, the conditions in which such observation occurred, for instance, whether day or night, whether there was good or poor light; four, whether the witness knew the accused before or not; and five, all factors of identification considered should be plain to whether there was any material impediment or discrepancies affecting the correct identification of the accused person by the witness. The learned State Attorney held the stance that the appellant was positively identified. Referring to the testimony of PW1, he argued that PW1 testified to have met the appellant holding a machete and to know the appellant as they are neighbours. He added that PW1 also explained the source of light whereby he said that there were electric bulbs at the crime scene illuminating from the milling machine which was about 7 metres to the crime scene. That, the bulbs were sufficient for PW1 to identify the appellant. In his firm view, the evidence of PW1 was well corroborated by that of PW2 who also told the trial court that she identified the appellant Page 9 of 20 as he carried a machete and attacked her husband. He contended that PW2 could identify the appellant since there was enough light from the bulb at the milling machine. He added that the two witnesses also testified to have known the appellant from before the incident as he lived near their place. He considered the explained circumstances rendering it easier for the appellant to be identified by the two witnesses and challenged the appellant for not denying the assertion by the witnesses. Concluding on this issue, he stressed that the conditions for proper identification were met and the appellant was properly identified. Addressing the 3rd ground, Mr. Wambura found baseless the appellant’s argument that he was not named at the earliest opportunity thus affecting the credibility of prosecution witnesses. Arguing to the contrary, he averred that the incident took place on 08.03.2023 and the victim was taken to the hospital on the very same night and the PF3 filled on the same day. In his stance, this implies that the incident was reported to the police station on the same day. In addition, he averred that PW2 also went to police station on 13.03.2024, met PW3 and informed him that her husband had been attacked by the appellant. In consideration of such testimony, insisted that the incident was reported at earliest possible time. Mr. Wambura saw the 4th ground baseless as well. He argued that the prosecution is with the duty to call witnesses that are relevant to prove its case and there is no specific required number of witnesses to be summoned by prosecution to prove its case. He Page 10 of 20 supported his stance with Section 143 of the Evidence Act [Cap 06 R.E 2022]. In addition, he argued that what is of concern to the court is the credibility of the witnesses summoned. To fortify his argument, he referred the case of Harson Gerald Mbuya vs. Republic (Criminal Appeal No. 198 of 2021) [2024] TZCA 432 (11 June 2024) TANZLII. In his stance, the witnesses paraded by the prosecution sufficiently proved the case against the appellant. As to the 5th ground, the Mr. Wambura contended that there was no any material variance between the evidence on record and the charge. In his view, the evidence of PW1 and PW2 aligned with the charge. Arguing on the 6th ground, Mr. Wambura disputed the assertion on contradictions among prosecution witnesses. Submitting on the position of the law, he averred that the Court of Appeal has in its plethora authorities stated that the court will only take into consideration contradictions which are not minor. To bolster his averment, he referred the case of Priva Constantine Shirima vs. Republic (Criminal Appeal No. 437 of 2020) [2024] TZCA 237 (22 March 2024) TANZLII. He insisted that there is no any contradiction existing in the prosecution evidence and that is the reason the trial court proceeded to convict and sentence the appellant. With regard to the final ground, the learned State Attorney firmly expressed his stance that the ingredients of the offence of armed robbery as per Section 287A of the Penal Code were established. Expounding on the said ingredients, he cited the case of Page 11 of 20 Ramadhani Hamisi Mkwembya @ Kigi vs. Republic (Criminal Appeal No. 396 of 2021) [2024] TZCA 395 (4 June 2024) TANZLII, which he said, listed the ingredients to include stealing and being armed with a dangerous weapon or robbery instrument, and using or threatening to use actual violence in order to obtain or retain the stolen property. Matching the ingredients of the offence with the evidence on record, Mr. Wambura averred that PW1 and PW2 saw the appellant with a machete and he used the same to harm PW1 to obtain TZS. 250,000/= from him. He added that PW2 witnessed the incident and the appellant threw a stone at her as she tried to help PW1. He further reiterated his position that the appellant was properly identified at the scene. Mr. Wambura thus finalised his submissions by praying for the appeal to be dismissed in its entirety. I have accorded the grounds of appeal and the submissions of both parties, due consideration. I have as well gone thoroughly gone through the trial court record. The appellant faults the trial court’s decision over multiple issues, being: one, his identification at the crime scene; two, failure by victim to name assailant at the earliest possible opportunity; three, prosecution’s failure to summon essential witnesses; four, variance between charge and evidence and; five, prosecution’s evidence being weak, inconsistent, contradictory and uncorroborated. In consideration of these issues, the appellant alleges that the case against him was not proved beyond reasonable doubt. I shall address the issues accordingly. Page 12 of 20 With regard to identification of the appellant at the crime scene, it is indeed settled that courts are warned from relying on evidence of visual identification in convicting an assailant, unless where there is assurance that the identification was proper. Evidence of identification is required to be water tight to avoid a case of mistaken identity. This position has been emphasized by the apex Court in plethora of its decisions. See for instance, Ngaru Joseph & Another vs. Republic (Criminal Appeal 172 of 2019) [2022] TZCA 73 (25 February 2022) TANZLII, whereby the Court stated: “It is important to note that it is now well settled that the evidence of visual identification is the weakest kind of evidence and the courts are warned not to act on it unless all possibilities of mistaken identity are eliminated and that courts are required to be satisfied that such evidence is absolutely watertight.” There are three forms of identification; visual, recognition and voice l identification. This was well expounded in the case of Jumapili Msyete vs. Republic (Criminal Application 4 of 2017) [2018] TZCA 314 (12 December 2018) (TANZLII), in which the Court stated: “For the purpose of analysis and the experience enriched from case law, cases of identification may be identified into three broad categories. Visual identification, identification by recognition, and voice identification. In visual identification, usually, the victims would have seen the suspects for the first time. In recognition cases, the victims claim that they are familiar with or know the suspects. In the last category the victims would usually claim to be familiar with the voice of the Page 13 of 20 suspect although they may or may not have seen him. It is akin to identification by recognition.” In the matter at hand, the identification was by recognition as both, PW1 and PW2 knew the appellant before the incident. I came to this conclusion as the appellant himself admitted in his defence that he knew both, PW1 and PW2, as his neighbours and had even let them cultivate on his farm. Identification by recognition is visual identification, thus the crucial factors that ought to be taken into consideration in visual identification are also applicable. These factors were well laid in Waziri Amani vs. Republic (supra) whereby the Court of Appeal stated: “Although no hard and fast rules can be laid down as to the manner a trial Judge should determine questions of disputed identity, it seems clear to us that he could not be said to have properly resolved the issue unless there is shown on the record a careful and considered analysis of all the surrounding circumstances of the crime being tried. We would, for example, expect to find on record questions as the following posed and resolved by him: the time the witness had the accused under observation; the distance at which he observed him; the conditions in which such observation occurred, for instance, whether it was day or night-time, whether there was good or poor lighting at the scene; and further whether the witness knew or had seen the accused before or not. These matters are but a few of the matters to which the trial Judge should direct his mind before coming to any definite conclusion on the issue of identity.” Page 14 of 20 The factors on the aforementioned case are not exhaustive. The same have been modified at diverse times to suit the diverse circumstances of identification. (See, Jaribu Abdallah vs. Republic (supra); James Kisabo @Mirango and Another vs. Republic, Criminal Appeal No. 216 of 2006 (unreported); John Jacob vs. Republic (Criminal Appeal 92 of 2009) [2011] TZCA 112 TANZLII; Juma Magori @ Patrick & Others vs. Republic (supra); Christopher Chacha @ Msabi & Others vs. Republic (Criminal Appeal No. 235 of 2009) [2016] TZCA 792 TANZLII; Rajabu s/o Issa Ngure vs. Republic (Criminal Appeal No. 164 of 2013) [2013] TZCA 461TANZLII; and Byamtonzi John @ Buyoya vs. Republic (Criminal Appeal No. 289 of 2019) [2021] TZCA 385 TANZLII. The appellant challenged that the time under which PW1 and PW2 observed the assailant was not stated. Upon observing the trial court record, I find that indeed the two witnesses did not state how long the incident lasted. It is thus unclear as for how long the two witnesses were able to observe the assailant. Though PW1, PW2 and the appellant knew each other, I find this factor still very crucial taking into account that the incident, as per the witnesses’ testimony, occurred at night. Concerning the question as to intensity of the light, I wish to note the legal position to the effect that in cases of identification or recognition there should be detailed explanation as to the source and intensity of the light and size of the area illuminated. This position was settled in Waryoba Elias vs. Republic (Criminal Appeal Page 15 of 20 No.112 of 2020) [2023] TZCA 17314 TANZLII, whereby the Court of Appeal stated: “It is trite that except where identification is by voice, in visual and recognition identification, light is a critical prerequisite. Accordingly, the Court has been resolute regarding its source and intensity stressing their proof beyond reasonable doubt that such light is bright enough to see and positively identify the assailant” In Issa s/o Mgara @ Shuka vs. Republic, Criminal Appeal No. 37 of 2005 (unreported), the Court of Appeal clarified on the essence behind clarification of the source and intensity of light. It stated: "It is our settled mind, we believe that it is not sufficient to make bare assertions that there was light at the scene of the crime. It is common knowledge that lamps be they electric bulbs, fluorescent tubes, hurricane lamps, wick lamps, lanterns etc. give out light with varying intensities. Definitely, light from a wick lamp cannot be compared with light from a pressure lamp or fluorescent tube. Hence the overriding need to give sufficient details on the intensity of the light and the size of the area illuminated.” PW1 stated that there were two electric light bulbs at a milling machine which was almost 7 meters from the crime scene. PW2 stated that there were electric tube lights but never clarified how many they were. Tube lights and bulbs are not the same rendering these witnesses to have contradicted materially on the source of light. Apart from the contradiction, these two witnesses did not elaborate on the intensity of the alleged lights including the area or Page 16 of 20 distance the same illuminated. Evidently, there are doubts as to the identification of the appellant by the two witnesses. This is issue is thus found to have merit. As to the issue of naming of the appellant as the assailant at earliest possible opportunity, the law is clear that the ability to name a suspect at the earliest opportunity is a vital proof of a witness’ credibility. See, Mohamed Said Rais vs. Republic (Criminal Appeal 167 of 2020) [2022] TZCA 479 TANZLII and Joshua Soori vs. Republic (Criminal Appeal No. 66 of 2020) [2024] TZCA 517 (5 July 2024) TANZLII. In the later the Court of Appeal stated: “…mentioning the assailant at the earliest opportunity, is an assurance of reliability of the identifying witness.” In the record, there is no any indication that PW1 and PW2 named the assailant at the earliest possible opportunity. I say so because, while both witnesses claimed to have known the appellant before the incident and to have reported the incident to the police and thereafter be issued with a PF3, the evidence of PW3 proved otherwise. PW3 was handed the case file which was on grievous harm on 13.03.2023. He testified that he met PW2 who took him to see PW1 who was injured. It was then that PW1 named the appellant. In accordance with PW2’s testimony, other people arrived at the scene after PW1 was attacked. PW1 also testified as to PW2 calling his relatives after the incident and thereafter the incident being Page 17 of 20 reported to the police. Further, PW2 testified to have sought for shelter or help from one Meta Saroiya after fleeing the crime scene and later upon returning for her husband, they both went to the house of one, Kitimbwe. On the other hand, PW1 alleged that they both sought shelter at Meta Saroiya’s house after the incident. Apart from the contradiction as to what transpired after the alleged incident, I also find that they should have mentioned the appellant to the people who came to their rescue and the prosecution should have furnished those people to corroborated the victims’ allegations. The above observation brings me to the issue as to whether material witnesses were not summoned. I am very alive at the settled position under Section 143 of the Evidence Act that the prosecution is not bound to summon a specific number of witnesses to prove an alleged fact. However, I am also alive at the position that failure to call a material witness can lead the court into drawing an adverse inference against the party failing to furnish such witness. See, Aziz Abdalah vs. Republic [1991] TLR 71; and Hemed Said vs. Mohamed Mbilu [1983] TLR 113.). I consider the people allegedly present at the scene, particularly the said Meta Saroiya, the said Kitimbwe and at least one or two other persons, being material witnesses to corroborate the victims’ story. I say so, taking further consideration of the appellant’s defence to the effect that he had misunderstanding with both PW1 and PW2. The appellant, in his defence alleged that both of them had promised to deal with him on different reasons. He alleged that PW2 was annoyed following Page 18 of 20 his refusal to heed to her love advances. With regard to PW1, he alleged that they were at odds following him wanting to have his farm back, which he has lent to PW1 to use for two years. In my considered view, the failure to call such witnesses creates a number of questions as to what transpired from 08.03.2023 when PW1 was allegedly attacked to 13.03.2023 when the appellant was mentioned to PW3. For instance, why were there no efforts to arrest the appellant while there appeared to have been people with knowledge on what transpired, including knowledge on the culprit, a report allegedly made to the police and the PF3 issued and filled? Apart from such questions, I find that the witnesses left out by the prosecution would have stated whether the appellant was mentioned before them at the earliest opportunity, that is, before even being taken to the police station and later to hospital, if at all he was identified at the crime scene. In addition, at least the police officer that issued the PF3 should have been called to testify that the report named the appellant as the assailant, but that was also not done. The circumstances show that there were enough opportunities for the assailant to be named before naming him to PW3, but none was utilized. This, in my considered view, imposes further doubts on the prosecution case, especially on credibility of PW1 and PW2. In further consideration, I find the fact that PW3 was assigned to investigate on an incident of grievous harm making the whole incident further questionable. For the file assigned to PW3 bearing an incident of grievous harm connotes that that was the offence Page 19 of 20 reported to the police in the first place and not that of armed robbery. The record shows that it was during PW3’s interview with PW1 and PW2 that the claim of stolen money manifested. Such information was disclosed by the prosecution side when the trial court questioned PW3 something which connotes fabrication of the charge of armed robbery against the appellant. In conclusion, I can safely rule that there were doubts in identification of the appellant, that PW1 and PW2, the alleged victims, failed to name the assailant at the earliest possible opportunity and to even report the actual incident of armed robbery to the police at the first instance. These two major concerns, coupled with failure to bring witnesses that could fill the gaps in the prosecution case serves to show that the case against the appellant was mounted on reasonable doubts and thus, unproved as per the required standard. In the foregoing analysis, I find merit in this appeal. I hereby quash the conviction and sentence metered against the appellant and order for his immediate release from prison custody, unless held for some other lawful cause. Dated and delivered at Moshi on this 30th day of September, 2024. X L. M. MONGELLA JUDGE Signed by: L. M. MONGELLA Page 20 of 20