joel so roth mtungi vs republic 2023 tzhc 17293 16 may 2023

IN THE HIGH COURT OF TANZANIA

MUSOMA DISTRICT REGISTRY

AT MUSOMA CRIMINAL APPEAL NO. 130 OF 2022 (Originated from Criminal Case No. 80 of2022, at the Resident Magistrate Court of Musoma at Musoma) JOEL S/O ROTH @ MTUNGI............................................................. APPELLANT

VERSUS REPUBLIC...................................................................................RESPONDENT

JUDGMENT 10th & 16th May, 2023 M, L. Komba, J; Appellant was tried, convicted and sentenced to fifteen years imprisonment on the offence of animal stealing contrary to section 258(1) and 268(1) and (3) of the Penal Code Cap 16 R. E. 2022 (Cap 16). It was alleged by prosecution during trial that on 22/07/2022 around 18:45hrs at Masinono village in Musoma District within Mara Region, 10 cattle properties of Nyamhanga Chacha were stolen. It was further alleged by PW2 that on the same date around 08:00hrs the appellant and Amos Lucas (who is not subject to this appeal) were seen in possession of the said Page 1 of 13 cattle. PW1 informed the trial court that after the said stealing he made a search and nothing were found and that he reported the incident to village office for necessary action and on 25/07/2022 he was informed by his neighbors that in the evening of 22/07/2022 the suspects were at the PW1 animal shade. More over PW3 informed the trial court that on 22/07/2022 at around 20:00hrs he saw the appellant and his fellow at the bush in possession of the said cattle but he informed PW1 on 25/07/2022 as he noticed that the said cattle were stolen. That being not enough, PW4 informed PW1 that on 23/07/20222 during monthly market he met appellant accompanied by other two people selling cattle which had a mark NYCH (to mean Nyamhanga Chacha). Trial court was convinced that prosecution managed to prove their case and went on to convict and sentence the appellant as stated early above. Following the trial court decision, the appellant was not amused hence he lodged the present appeal containing five grounds which can be summarized as follows; 1. That the trial court decision based on contradictory evidence.

2. That he was convicted with an offence he did not commit.

3. The case was not proved beyond reasonable doubt. HO 4. The trial Magistrate failed to evaluate the entire evidence.

5. The trial court convicted him based on poor identification evidence. It was Mr. Julius Kiligiti, learned advocate who offered legal service to the appellant while the Republic was represented by Mr. Isihaka Ibrahim assisted by Ms. Natujwa Bakari both learned State Attorneys. Mr. Kiligiti opted to submit ground no. 2, 3 and 4 jointly because they related in their content. He argued that this court has to step into the shoes of trial court and make proper evaluation of the entire evidence and establish whether the conviction was justified and referred to the case of DR Pandal vs. RC, 1957, EA, 336 where it was held that on the 1st appeal the evidence must be treated as a whole to the fresh and exhaustive scrutiny which was not done and failure to do that is an error of the law. He submitted that, if the trial Magistrate could have made assessment properly the position could have been that the prosecution witnesses have not proved their case beyond reasonable doubts and it is of no doubt that the prosecution evidence was so insufficient to prove their case and the appellant is entitled to benefit over the said doubt. The counsel referred this court to the case of Wankuru Mwita vs. Republic, Criminal Appeal no 219 of 2012 CAT at Mwanza Page 3 of 13 (unreported) at page 15 where the prosecution case was not proved beyond reasonable doubt and the appellant benefited from the said doubt. Mr. Kiligiti proceeded to submit on identification of the appellant which was in ground no.

5. According to him, that was not proved beyond reasonable doubts as there was no detailed physical description of the appellant given by PW2 and PW3 who claimed to have identified the appellant at the scene. He said it was necessary for PW2 and PW3 to describe in detail the identity including details of clothes worn, physical appearance, whether tall or short, slim or fat, dark or light skinned and referred the case of Hamis Abdalah Mugwari vs. Republic, Criminal Appeal no 184 of 2011 CAT at Dodoma (unreported) at page 5, 6, and 7. Connecting the cited authority to the case at hand, he submitted that there is no anywhere in the trial court proceedings where prosecution witnesses clearly and properly identified the appellant who was said to commit the offence. In that regard he submitted that prosecution failed to identify the person who committed the offence the appellant has been charged with. It was his submission that it is a settle law that the prosecution is required to prove the case beyond reasonable doubt and it is clear from the evidence available in proceedings that the prosecution failed to meet standard set under the law. Mr. Kiligiti contended that the identification made by PW2 and PW3 consist of a mere assertion which is unreliable. For instance, he said, PW3 testified during the trial court that he used the torch light to identify the accused. The said torch

light which aided identification was not elaborated on how far the light goes from where the culprit was or how the bright the light was (intensity of the light). He insisted that, so far as the prosecution witnesses failed to identify the appellant, then, the appellant would have been given the benefit of doubt because his guilt has not been established to the required standards. To bolster his argument Mr. Kiligiti referred this court to the cases of Juma Marwa and 2 Others vs. Republic, Criminal Appeal No. 91 of 2006, CAT Dar es Salaam (unreported) at page 3 and 4, Waziri Amani vs. Republic (1980), TLR 250 at page 257 and 252 of the judgment, Raymond Francis vs. Republic (1994), TLR, 100 at page 103, and Felix Kichele and Another vs. Republic, Criminal Appeal no. 159 of 2005 CAT at Mwanza in pages 8 and 9. On the 1st ground it was his submission that in the trial court proceedings, PW1 testified that the incident occurred at about 18:45 hours at Masinoni village and he saw the accused on 22/7/2022. Further PW4 testified that one Wambura Chacha on the night of the incident he saw Joel Roth and Sokolo near his boma and he was told by PW4 that on 23/7/2022 during monthly Page 5 of 13 market (mnadani) at Kiabakari area he met Joel Roth accompanied with two other people selling cattle. While PW2 testified that the incident occurred at about 18:00 hours on 22/7/2020 in the said

testimony there was contradiction in terms of hours which the offence was committed so the appellant is entitle to benefit to the said contradiction of commission of offence. He finally calls upon this court to re-evaluate the evidence where possible and that these contradiction goes to the root of the case as analysed in the case of Mohamed Said Matula vs. Republic (1995) TLR 3. The learned State Attorney, Mr. Isihaka Ibrahim addressed this court by registering the position of his office that they support the appeal and conceded to appellant's counsel submission while he had little addition for the purposes of making the record clear. He submitted that, the evidence which used to convict the appellant was based on identification especially PW3 as it appear in page 18 at paragraph 6 ”... I was possessing a torch in my hand' he said this witness did not inform the court if the torch was functioning and made additional authority in the case of Kamuri Mashamba vs. Republic, Criminal Appeal No. 325 of 2014, CAT at Mwanza at page 6 where Justices of Appeal mentioned conditions to be met in night of identification but all the conditions were not met by PW3. Paop fi nf13 He further submitted that even during cross examination at page 19, PW3 did not explain what he was supposed to inform the court as decided in various authorities cited by the counsel for the appellant. He concluded

by informing the court that PW3 was not credible witness to allow the conviction as he managed to even to mention special marks of the cow and he wonder how he saw those marks while the intensity of light was not explained. There are other short falls to disapprove conviction especially at page 13 where the trial court noted the witness lacks credential. Mr. Isihaka conceded to the appeal as he submitted that the offence was not proved. This is one among the few appeals I came across where Republic (State Attorney) concede to. The duty of this court is simplified by two officers of the court (Mr. Kiligiti, the counsel for the appellant and Mr. Isihaka who Represented the Republic). It is the trite law that the prosecution is placed with a heavy burden than that of the accused. The first long-established principle in criminal justice is that of onus of proof in criminal cases, that the accused committed the offence for which he is charged with is always on the side of the prosecution and not on the accused person. It is reflected under Section 110 and Section 112 of The Evidence Act, Cap.6 [R.E 2022] (Cap 6) and cemented in the Page 7 of 13 case of Joseph John Makune vs. Republic [1986], TLR, 44 at page 49, where the Court of Appeal held that; "The cardinal principle of our criminal law is that the burden is on the prosecution to prove its case; no duty is cast on the accused to

prove his innocence. There are a few well-known exceptions to this principle, one example being where the accused raises the defence of insanity in which case he must prove it on the balance of probabilities" The second principle the standard of proof in criminal cases that is required by law is proof beyond a reasonable doubt. The Court of Appeal of Tanzania in several occasions insisted on that, one of it the case of Mohamed Haruna@ Mtupeni & Another vs. R, Criminal Appeal No. 25 of 2007 (unreported) where it was held that; "Of course in cases of this nature, the burden ofproof is always on the prosecution. The standard has always been proof beyond a reasonable doubt. It is trite law that an accused person can only be convicted on the strength of the prosecution case and not on the basis of the weakness of his defence." That means the evidence must be so convincing that no reasonable person would ever question the accused's guilt. See also Mohamed Said Matula vs. Republic [1995] TLR 3, Anatory Mutafungwa vs. Republic, Criminal Appeal No. 267 of 2010 (unreported) and Festo Komba vs. Republic, Papp R of 13 Criminal Appeal No. 77 of 2015, the Court of Appeal of Tanzania (both unreported). During trial of this appeal as depicted from the submission of both counsel, the major shortcoming was the identification of the appellant at the scene of crime as the same took place at night,

visual identification which is ground number 5 of the petition of appeal. The law is well settled that the visual identification evidence is one of the weakest kind and in order to sustain a conviction it must be cogently established to the court's satisfaction that the conditions are favourable for an accurate and water-tight identification of an accused and that it is free from all possibilities of mistaken identification. See Waziri Amani V. Republic [1980] TLR, 250, Anthony Kigori vs. R, criminal Appeal no. 94 of 2005 and Wankuru Mwita vs. Republic, Criminal Appeal no 219 of 2012 CAT at Mwanza (both unreported). In the cause, eye witness can be a very powerful tool in determining a person's guilt or innocence but it can also be devastating when false witness identification is made due to honest confusion or outright lying. In Jaribu Abdalah vs. Republic [2003] TLR 271, CAT, quoted with authority the case Page 9 of 13 of Mawazo Mohamed Nyoni @ Pengo & 2 Others vs Republic, Criminal Appeal No. 184 of 2018 where it held that: - 'In a matter of identification is not enough merely to look at factor favoring accurate identification equally important is the credibility of the witness, the ability of witnesses to name the offender at the earliest possible moment is reassuring though not a decisive factor.' In order for the trial court to rule out if the identification of accused by

victim was watertight, the evidence adduced by victim must be subjected to a test to make sure that there was a positive identification for any court to be able to rely on. In this regard, I will sail in the principle of identification as enunciated in the landmark case of Waziri Amani vs. Republic (supra) in which the Court of Appeal held that; "The evidence of visual identification is of the weakest and most unreliable. It follows, therefore, that no courts should act on evidence of visual Identification unless all possibilities of mistaken identity are eliminated and the court is fully satisfied that the evidence before itis watertight". The Court of Appeal went further to elaborate on how the possibility of mistaken identity could be eliminated as it stated that, the court would be expected to determine the following questions; the time the witness had the Pscta 1 n nf 13 accused under observation, the distance he observed him, the condition the observation occurred, whether it was day light or at night, whether there was poor or good lighting, whether the witness knew the accused or had seen the accused before or not. (See also Aus Mzee Hassan vs. Republic, Criminal Appeal No. 17 of 2020, Yohana Kulwa @ Mwigulu & 3 Others vs. Republic, Consolidated Criminal Appeals No. 192 of 2015 and 396 of 2017, Alfred Kwezi @ Alphonce vs. Republic, Criminal Appeal No. 216 of 2021). The

Court of Appeal insisted that, when the court is satisfied that there was no mistake of identity then the court can convict the accused relying on the identification of the accused person. Notably, in the instant case, the incident took place at night and therefore identification of the appellant was supposed to be with great care. It was PW2 and PW3 who claimed to have identified the appellant at the scene. Just as submitted by Mr. Kiligiti it was necessary for PW2 and PW3 to describe in detail the identity including details of clothes worn, physical appearance, whether tall or short, slim or fat, dark or light skinned and intense of the light used to identify. But that was not the case during trial of the appellant. Page 11 of 13 Having torch or holding a torch at hand alone as was narrated by PW3 at page 19 was not enough to warrant the witness to properly manage to see and identify the accused, in this case the appellant, as just submitted by the State Attorney. For proper identification, witnesses were supposed to explain the intense of the light used as seductive effect of identification evidence is very persuasive. It has resulted in and may lead to the conviction of the innocent. See R. vs. Fobes, [2001] 1 All E. R.

686. The frailties inherent in visual identification or recognition evidence imposes a requirement on courts to proceed with attention, caution and judiciousness. This court finds that failure to properly identify the appellant at the scene, vitiates the prosecution evidence and therefore the offence cannot be said to have been proved and I find ground no. 5 to have merit. Grounds no. 2, 3 and 4 as combined by the counsel for appellate is about proving the offence to the required standard. This should not retain me much. Basing on analysis made on the 5th ground, the offence cannot be said to have been proved beyond reasonable if the identification of the accused was not properly made. The appellant is entitled to the benefit of doubt. See Wankuru Mwita case (supra). I find the combined grounds to D^rro I") nf 13 have merit and allow it. I find no need to analyse the 1st ground as the analysis made is suffice to dispose the appeal at hand. In result and foregoing reasons, I allow this appeal. I quash the appellant's conviction, set aside the sentence and order his immediate release from custody unless he is held therein for other lawful cause. Dated in MUSOMA this 16th Day of May, 2023 M. L. KOMBA

JUDGE Judgement Delivered in chamber in the presence of Beatrice Mgumba State Attorney while the appellant was remotely connected from Tabora B Prison in Serengeti. M. L. KOMBA

JUDGE 16 May, 2023 Page 13 of 13