20141013 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA AT MWANZA HIGH COURT CRIMINAL APPEAL NO. 115 OF 2013 ,: I . (Original Criminal Case No. 230 of 2012 from the District Court of Nyamagana District at Nyamagana) HASSAN BURIAN 111 ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ 8 ■ ■ ■ ■ ■■ ■ ■ 111 ■ ■ ■ r: ■■ ■ ■ ■ •• ■ ■ 11111 ■ ■ ■ aAPPELLANf:, 1 11 VERSUS THE REPUBLIC ........ ·... ■■ I ■■ I •• ■ •••••••• I ................. ■■ •••• •••••• ~RESPONDENT··. JUDGMENT .. . . BUKUKU, J.: The District Court of Nyamagana at Nyamagana convicted the ' appellant of the offence of armed Robbery Contrary to section 287A of the ..·. Penal Code, Cap 16 R.E. 2002 and sentenced the appellant to thirty years imprisonment. According to the charge sheet, the offence was committed:: .;, on 19th day of April, 2012 at Kiyungi area within Nyamagana District in the.·.._ ' city and region of Mwanza. Aggrieved, the appellant i,s still protesting his: ·~ •,'.' innocence, and has come to this court with a memotandum of appeal:.:: containing ten (10) grounds of grievances. 1 . ........ :,~5-' '': ! .i l' ~- ~- - . . At the hearing of ·the· appeal, the appellant had no legal representative~ he fended for · himself. The respondent Republic was . . represented by Mr. Kajungu, Learned State Attorney, who did not support t~e :appeal. · :·:i)··: The ev.idence in support of the charge against the appellant came from· a total of two prosecution witnesses, F. 7229 PC Bita (PWl) and Ashura Shabani (PW2), the complainant. Brief facts of the case could be stqted as follows: - on the night of 19th April 2012, bandits broke into the ho\Jse of PW2. It was I during night time, as PW2 was sleeping in her '.~; . . , !· . . room. Alerted by a bang on the outer door of her house, PW2 proceeded to,:che sitting room to find what was happening. In the sitting room she , . . .. came face to face with the two bandits who were armed with pangas. The bar:,~Hts first ordered PW2 to sit down and keep quite, while threatening to • kill her, and then ordered PW2 to go to her room and give them money. When she resisted, she was beaten by the panga. They also threatene~ to cut .PW2's mother who was in the house. In the process, the bandits, who . . . were strangers to PW2, took one mobile phone make· Nokia,. one mobile ph9ne mak.e Samsung,: cash money T.shs. 300,000/= 40 pairs of vitenge, 5 2 1 . pairs of bed sheets, DVD make LG, one radio make Panasonic and one . laptop make acer, hand watch, gold earrings and seven p~irs of shoes ... Having heard a strange noise from outside, the bandits took to their heels .. ,· , I .•; ,' PW2 reported the robbery at the nearby police post, was given a Pf3::: (Exhibit 8) and went to Sekoutoure hospital for treatment. According to PWl, on the fateful night they were on patrol with PC • .. Juma and PC Frank. At around 4.00 am they receiv~d a radio call, informing them of the robbery. While proceeding to where they ·were called, somewhere near the Roman CathoHc Church, they met ~ith the appellant carrying a bag on his head. They stopped him and asked his. whereabouts. The appellant told them that he was· coming from Bugarika .· . whe~e his parents lived and was heading to his house at KitangirL PWl further narrated that, they asked the appellant what .he was carrying and· .... "',. he told them that, he was carrying a variety of school items as his child.. had passed his exams. PWl then ordered the appellant to open the bag,·.• to which he did. Upon conducting a search in the bag, PW1 found a .· variety of school items on top, then they also saw bed cover with white· color and vitenge. They then arrested the appellant and took him to the . ,•' police. While there, the bag was. opened and they. found 18 pieces of ., v1tenge,· .one. DVD player and video camera. These items were tendered in . court and were admitted. ., PW1 further told the court that, after that incident, they continued with the patrol and upon returning at the station at around 6.00 am, they w~.re' -informed that, a· ce1tain woman reported an armed robbery incident in• n.er house and that she was able to identify the -properties which were ,. ,, I found with the appellant. ._. •, i ·::: · On 14th May, 2013, the appe,lla.ht defended himself. He told the court that,. on the fateful day, h~ woke up very ·early in the morning and proceeded to the mosque to pray. ,- .. On the way, he met two police officers . . in ,Wniform. DW1 was stopped and the police asked him his whereabouts. - _.' ~ He told the police that he was going to the mosque. Immediately, they put hirn underarrest .and was joined with other five suspects who were already arrested by the police. He was taken toa police cell, and aftertwo days, soh{e suspects were· released on bail, but since he had no relatives, he had I.,•, ;.-1 ' r~niained in custody .. '."'.•.,.. ·~ t ~ 4 '•.' I According to DW2, one day he wa·s, called by the police. The police I I asked his name and full address to which . he .complied. • The I police. , then. . - wrote something on the paper and after that, he was asked to write -his···: I • ' name on each page after that, he returned . to his cell. Oni 2nd May 2012, DWl was arraigned. In brief he disassociated himself with the offence I charged with. The trial magistrate found the appellant guilty as charged on the 1 basis of two pieces of evidence. This was first, the visual identification . . . . evidence of PW2 which he found to be watertight, and the second is the doctrine of recent possession. In her condensed judgment, the tr,ial magistrate had this to say at ·I ' • ' page 1:- "The PW2 identify (sic) the· accused vel}' well at the scene of crime as the lights: were on and ,there is · • nowhere PW2 says that the accused person covers (sic) ,- . their faces. On the issue of st~len properties DW1 was ·- ,, arrested with them by police who was on patrol. PW2 5 ·- " ·~~--/~ ... ~~-·-· ~ . ~.- -~-:-· .), :' ·. ·,t-', ' ,.· ( . • _,., 1 . . . I ·· .; identify (sic) the properties to her by tender receipt (sic) of buying som~ of the properties........ ~ ...... " · ' . . . . . '. . On his part, Mr. Kajungu who· resisted the appeal argued that; the ~ . . . . . . tri~·I court· was correct in convicting the appellant because he was properly .. identified. He averred·that, even if the visual identification was weak, there are oth~r · factors such as circumstantial evidence. According to Mr. Kajungu, the appellant was found with _the stolen properties which PW2. identified them . .:, . Mr. Kajungu further argued that, the Preliminary hearing was .. co.riducted according to the law and therefore this ground has no merit. He thus prays that the appeal be dismissed. . In determining this appeal, I think I shall confine myself to two .. /;- crucial issues. These are:-' ' (a) Whether the appellant's conviction was based on cogent and water tight identification evidence. (b) \/Vhether the doctrine of recent possession was properly invoked. 6 :,, ' . :-.:.;;' . {. . ·.·.,,i·.:... . . ··• . . . ··'· In this case, there was n.o dispt;Jte at the .trial . _th at, the robbery,.._i->.: 1 incident took place at the menti~ned .· p;a·~J 0~ the st~ted dat~ dur;~g nigtie: • . . .:.I . . , ~--. ... l .. .. . . .. >~-. time. The crucial question is, whether the prosecution evidence established · ' . . ' . . . ; I, . : . I. I beyond reasonable doubt that the appell~nt was the robberi, r.j - . ... . I , . . . ;·. ... ..., }, 1 ; ... The first point for consideration and decision in this appeal is whether . ' ' l '. ' .·•· I •' ..., ' ;,. ., I •• the appellant_ was sufficiently identified at the scene of the /crime. The issue. ·.... ' ' l ' ·•' " .. l. ,_;-_,. ·, . · .. of identification in very c_rucial. The prosecution case relied/ on the evidence . · ,., ;,:t~ :.; ,\ . ' . '',' I .l • '..'• '.' -,,.I,, .,. I ,., l ,.·, · , -"'L. • :.,,. i / ,,,;:>:_. _.-i; of PW2 alone for identifying the appella~~- I need _to ~stat!>lish whether the I ' I . :- . ' ! _1.;., ·:, ,:·f(( ,' conditions were favourable for adequate and correct.identification. ":\ .- l 1 • · ,. In the case of Anthony Kigodi•-v.R, Criminal' ·Appeal No. 9 of .·:. i ~ . ' I 'I fi I -.~•;·: ,,, . , I 2005(CAT) the court stated as hereunder:- · I ··, ~-- l.' ' . i ' . '\ of visual identificapon/ no• • • ' • I ''In a case involving evkjence . court should {I.ct on such eridence u_ntess :al/ the ,•,,.·,. possibilities of mistaken identi~ are eliminated nd that f '; '' > 'the court is satisfied ·that thk evidence betJre it is --· i ..., . .•' absolutely water tight. " I . '••· I . ·,;' I ·t' • I ·: I I . I. i i .....' . ... I ' • I See· also . in Raymond· Francis v. Republic [1994] TLR 100, Shamir John V. Republic ··criminal. Appeal No. _202 of 2004 (CA) (u·n;reported)·a~d R. V. Tu.rnbu~~ [1976] All ER 549. The ·1aw on the evidence of visual identification is settled. This evidence is one of the weakest \ . . . kind and should only be relied upon when . poss-iblliti'es of mistaken identity are eliminated and the court is satisfied that the evidence before_ it is absolutely water tight. •, In the case of Jaribu Abdallah V. Republic, triminal Appeal No. 2~0 of 1994 (CA) (unreported) the court had this to say> :·,• . . "In matters of identification, it is not enough merely to look at factors favouring accurate identification, equally important is the credibility of the witness. The conditions · for identification might appear ideal but that is no . guarantee against untruthful evidence. The ability of the t witness to name the offender at the earliest possible moment is in our view reassuring though not a decisive " ·\... ·· .. factor." ,·: 8 : • ,,}:.~ . ,·..::··· • I ;. 'i;• . . : , .. •."I • In this case, it is not known .whethe,r PW2 mentioned: ~ the appellant:: r .. ·, - • _._,.~!' \ ,_ ,,· .. . ' . . ·. '".. . . , .. . ". . ·.;;., ~. t... " •" . :-:·'. .,. : ~-·· :• . ·_· to the police at the earliest opportunity, : even tho~gh ·"• ,. lf she cl.aimed irf• her../· . · • • • ' .,.,,1 _•~'t.· ·~,.,•j".', ••'f ~ • • • • • . • ... -.i. ' • • .. . \ • ' .. ' ' ·.1 testimony that she identified the app¢llant. I say s0. because, nobody : - • •,. It t "' - • j • ~ • •~• ;,I' ,J: ....,.~ f , '\\'I ' ~-\, ~ . ?~: f ., a ~"' • • " 1 • ' .. ,a , l fJ, ~ ,• : •"' c1 1 ' ' testified to the effect that PW2 named_· the appell~~t e~~n . d\~sc{t?ed' ·:,.·:. ' . ... "'· ... , 'him. The only visual identification o(the appeUant came ·:from. the victim.:--:·. . . ~ ' . :<~-,. i ';, ·: ,,.",.-"· _ •• !1 ~·- .'· . •·. ·t ; . ~--:,·,./' . ' . i . ... herself (PW2) who claimed that, at the scene of the crime, there wat-< . • • ••• ,·:_ J_ .. ·.. ..· : ... •.I'• ,~i' •• : , ',, .... ;~_-;·f~::.i. ,;' I electricity light and that she identified the:appellant ..becaus~ she used to,:-.: . . . . . '.) ... ·.• ... , •, .. i'' ~-;. • ,·v•··,: :_.I• ... • see her. Unfortunately, PW2 did not tell the court where iShe used tQ see _..:.- . ,., • ,: ,c• ~ .. ~ : .. , · , } ~ ' ;.1•, • ,· ,/.., ,,•,, • •,1••, t I \ I , . ~ '• the appellant, when and _!)ow often. .:·. :.•::;ii•.: --~/~ .. ~11:,':,,:·,.· 1,., .l:;·. 1 • .\ . In this case, the factual evidence on rec_ord suggests t~a~, th~: attac~ ·.· . by the bandits was sudden and threateni~/g. It is n~t ,kno~~ • 1J• • ~ .. I . .. ., •. . ~~~t~~r .:.,. , . PW2 ,: i I • identified the appellant at' the police or not, since, according to PW1, when ·_ ;'_ PW2 went to the police to report an~ identify her, pr;p~rt;~~' ·;;~ ~as/· . .. • . ... '.. , . . ... " • . I . . ·. , , .• ·..,. :· not present. PW1 was just informed by someone . . ·.,Q . .. ., who . . did hot . testify . .. ·, ~ • )·: • . (' . • • '.... ti ....: All the above considered, I am left.· with. lilO idoubt that the .. : t • ,_;_'., . ..... j'"' .•. , ~-· ,,, :· .,,. ,, " identification of the appellant was not ·watertight as required by law. As·> . . I ., "( '• .: ·,. 4:~ : 'i: such, I have warned myself of the danger of convicting someonerelying on ' I . ~- ' I identification which in turn does not exclude all possibilities of mistaken identity. For that matt~r, this ground of appea·1 is sustained. As far as the doctrine _o't recent. po~session is concerned, I wish to sta-~e categorical that,· no one· ca.me· to testify that indeed PW2 identified I he·~.; properties at the police station. As such, there was no connection be~een the properties at the police and the applican~. For the doctrine of recent possession to apply, there must be a nexus. In the case of Joseph l Mkumbwa and Samson Mwakagenda V. Republic, Criminal Appeal N~. 94 of 2007 (unreported) (CA), the court stated the position of the • ., l, lawthus:- ·., :_~ : .' ' "Where a person is found· in possession of a property . . recently stolen or unlawfully optained, he is presumed .to. have committed the offence · connected with the person or place where -from the property was • I -:. · obtained ..... " · ··>> ·It is trite that, for the doctrin~- to apply as ~ basis of conviction, it :· ,' '. · ... must be proved, first, that,· the property was found with the suspect, . 10 • second, that the property is positively proved the p~operty of the ·. ' ' complainant, third, that the property was recently stolen from the, complainant, and lastly, that the stolen thing constitutes the subject of the · charge against the accused. The fact that the accused ·does not dairn to be_;'' '', the owner of the property does not relieve the prosecution,· of. their .·,:,,. · . . ' obligation to prove the said elements. There is a chain of decisions of the court on when the doctrine of.-:. , i ., ,•.:, , i'· '~· ' recent possession can be properly applied. (~e~: '\1.haji Ay~b @ :: Msumari & Others V. R, Criminal Appeal No. 136 .. of 2009 ~ 1 ~ ~ - , . (unreported). In order to prove possession, there mu$t be acceptable .. evidence as to the search of the suspect and recovery of the aUeg~d stolen, , property, and any discredited evidence. on the same cc1nnot suffice, .. no. ~ , - matter from hovy many witnesses. (See: James Kisabo @ M.irango and ': • .. ·1 "' • •• 1 \:,: Yusuph Abdallah Fadhili V.R; Criminal Appeal No. 261 of 2006 .· · ' ' ',· (unrepQrted). In the present case, it was alleged that the ·bandits stol~ from the;-: I . . ··: ' . ' victim various items including cash T.shs. 300,000/=. However there is no • • , , , I • -: 11 .. I . ... 1-.,.,:.'• .· .•,\ evi.dence on record to show that .the prosecution witness identified any of the·properties ailegedly~to be found wit~ the appellant as belonging to the complainant and there was. no evide~ce of ownership· of· any of the . ' ~. ,.' properties. · Non. of the prosecution witnesses described the stolen • I properties prior to their_ recovery if at all. In the circumstances, I am of the . . . . ··,; .. settied view that, the criteria laid down in Joseph Mkumbwa's case (supra) was not met for the doctrine of recent possession to apply in this case. .. . . . . •" In the end, I find the . appe.al to have been lodged with sufficient cause. Accordingly it is allow~d. The appellant's conviction is quashed and , ~ ' ·.. . ' . . sentence - set~ . aside. . I order that the. appellant '· .. . be released forth with from ·custody unless othenNise legally· held. ·. Or~ered accordingly.· ·,,_ .. '. A.E. BUKUKU JUDGE ' . . Deliv~red at Mwanza This 13th October, _2014 .· 12