linus stephen njuu another vs republic 2006 tzhc 136 24 july 2006

IN THE HIGH COURT OF TANZANIA AT MOSHI CRIMINAL APPEAL NO.I42 OF 2004 (C/F CRIMINAL CASE NO.1489 OF 2003 MOSHI D’COURT) 1. LINUS STEPHEN NJUU ) 2. JOHN MICHAEL )....................... APPELLANT VERSUS THE REPUBLIC......................................RESPONDENT JUDGEMENT Hon.Jundu,J. In the trial court, the following Accused persons were charged with two counts: Godfrey Fortunatus (1st accused), Elias Shirima (2nd accused),Linus Stephani Njuu (3rd accused), John Michael (4th accused), th th Mansuri Masudi @ Mbongo (5 accused), Issah Idd (6 accused), Juma Salim @ Masamaki (7th accused), Abubakar Jumanne Mnyatum (8th accused), Msafiri Lyamuya (9th accused) and Awazi Hassan Msambaa (10th accused). In the first count, the said accused persons in the said court were charged with personating police officers c/s 100(2) of the Penal Code, Cap. 16, and Vol.l o f the laws. The particulars of the offence for the said count were that the said accused persons jointly and together on the 22nd day of December, 2003 at about 01:00 hours at Kilema Poto Village, Moshi District in Kilimanjaro Region did falsely represent themselves to one Faustine Paul Lyimo (PW2) to be police officers employed in the public service for the purpose o f doing wrong act which is stealing. In the second count, the said accused persons were charged with shop breaking and stealing c/ss 296(1) and 265 o f the Penal Code, Cap. 16, Vol.l of the laws. The particulars o f the offence were that the said accused persons jointly and together on the same mentioned date and place at about 01:30 hours did break and enter into the shop and stole from therein one TV screen make Zee valued at Tshs. 150,000/= one radio cassette make Sony valued at Tshs.250,000/= cash money Tshs.250,000/=, and different shop items valued at Tshs.3 60,000/= all total valued at Tshs. 1,010,000/= the property of one Nolla s/o Genes. The lower court record shows that the 1st accused (Godfrey • • th Fortunatus), the 5th accused (Mansuri Masudi @ Mbongo) and the 7 accused (Msafiri Lyamuya) had jumped bail while the prosecution side was still adducing evidence and that the 6 accused (Issah Idd) and 8 accused (Abubakari Jumanne Mnyantumu) had jumped bail after their defence had been closed. However, the trial magistrate having heard the evidence of the prosecution witnesses and the available defence witnesses he found all the accused persons guilty o f the said two counts and the sentenced each of them to serve two years imprisonment on the first count and five years imprisonment on the second count. It appears to me as far as the record is concerned that save with the 1st accused (Godfrey Fortunatus) the rest of the accused persons who had jumped bail were arrested and started to serve their terms of imprisonment. All the accused persons save the first accused (Godfrey Fortunatus) were aggrieved by the conviction and sentence imposed on them by the trial magistrate hence they have appealed to this court against them under various appeals as I shall shortly demonstrate. No appeal has been filed in respect o f the first accused person (Godfrey Fortunatus). On 31/5/2005 this court having been moved by the Republic vide Mr.Juma, learned State Attorney consolidated the various appeals filed by the accused persons before this court. These appeals are (DC) Criminal Appeal No. 142 o f 2004 (the Appellants being Linus Stephano Njuu and John Michael herein to be referred to as the First and Second Appellants respectively), (DC) Criminal Appeal No. 143 of 2004 (the Appellant being Msafiri Lyamuya herein to be referred to as the Third Appellant), (DC) Criminal Appeal No. 144 of 2004 (the Appellant being Elias Shirima herein to be referred to as the Fourth Appellant),(DC) Criminal Appeal No. 145 of 2004 (the Appellant being Awazi Hassan herein to be referred to as the Fifth Appellant), (DC) Criminal Appeal No. 158 o f 2004 (the Appellant being Mansuri Masoud herein to be referred to as the Sixth Appellant) and (DC) Criminal Appeal No. 159 o f 2004 (the Appellant being Juma Salim@ Masamaki herein to be referred to a s the Seventh Appellant. However, the record shows that the Third Appellant, that is Msafiri Msuya who filed (DC) Criminal Appeal No. 143 o f 2004 had absconded from the prison where he was serving his term o f imprisonment on 4/5/2005, that is before I had consolidated the appeals on 31/5/2005 and before hearing o f the appeals on 1/6/2006. In his Petition of Appeal, the said Appellant had expressed his intention to be present when his appeal is heard by this court. His absence or non-appearance before this court on the ground o f his abscondment from the prison can only be construed that he has lost interest in his appeal he has filed in this court and the same is here by dismissed for w ant of prosecution on the part o f the said Appellant. Though they had filed separate petitions o f appeal, the Appellants in their Petitions o f Appeal have raised similar grounds o f appeal to mention but a few of the said grounds of appeal 1. That the learned trial magistrate grossly erred in law and in fact in convicting the Appellants with the offence of breaking and stealing and personating to be police officers in the absence of sufficient evidence in support o f the said charge. 2. That the learned trial magistrate erred in law and in fact in convicting the Appellants without reliable visual identification evidence. 3. That the trial magistrate wrongly accepted and believed that the first accused mentioned the Appellants without knowing infact that he mentioned them without knowing what he was saying he said so to save his life since he was on a deadly torture. 4. That the first accused did not give any description of the accused to any person or in court neither in his caution statement, this creates reasonable doubt that he imagined same names to save his life since he was to be set ablaze, the trial magistrate ignored that fact and based conviction. 5. That the learned trial magistrate erred in law and fact in rejecting the defence o f the Appellants in the light of the weak prosecution’s case. 6. That the prosecution’s case was not proved beyond reasonable doubt and the evidence adduced against the Appellants was not collaborated in sufficient way to ground conviction. The Appellants, in their submission before this court simply stated that what they had stated in their grounds o f appeal sufficed to be their arguments in pursuance o f their appeal be fore this court. They prayed to this court to allow the appeal, quash and set aside the conviction and sentence imposed on the by the trial magistrate and to order their release from the prison forthwith. Mr.Maugo, the learned State Attorney appeared for and represented the Republic. He did not support conviction and sentence imposed on the Appellants by the trial magistrate. In my considered view, though the Appellants in their Petitions of Appeal had listed several similar grounds of appeal but the main ground of appeal cutting across all these appeals is whether the evidence of the prosecution witnesses had proved the prosecution’s case against the Appellants beyond reasonable doubt in respect of the two counts in the charge sheet filed by the prosecution in the trial court. In this contest, one needs to consider and determine whether the Appellants had been properly identified by the prosecution witnesses and or whether the evidence of the prosecution witnesses that the first accused (Godfrey Fortunatus) had named the other accused persons (the Appellants) was sufficient to convict the Appellants. As I had earlier stated the first count against all the accused persons in the trial court was personating police officers c/s 100(2) o f the Penal Code, Cap. 16, Vol.l o f the laws. The trial magistrate in his judgment found that the evidence by the prosecution side on the first count had been complied or established. The trial magistrate in so holding he solely relied on the evidence of PW2. The trial magistrate in his judgment stated as follows (page 2) “The evidence o f PW2 who escorted the accused persons where his watchman was is to the effect that he did so after the accused persons personated themselves as police officers. His evidence shows it is of truth as neither o f the accused person in his defence state or denied the alleged charges. Although he is the only prosecution witness who testify pertaining to that count but his evidence is strong although not corroborated as shortly after taking the accused persons where his watchman was and left he heard a scream of help from his watchman and upon coming out he saw the accused persons run from the scene with the stolen properties. Hence the court is of the opinion that the evidence by prosecution side on the first count has been complied or established.” However, this above finding of the trial magistrate in respect of the first count is not free from shortfalls that go to the root of the prosecution’s evidence in respect of the said count. First, the trial magistrate having held that the evidence on the prosecution side had established the first count did not go further to state that he found the accused persons guilty of the charged offence in the said count nor did he enter conviction on the said count against the accused persons though ended up sentencing each o f the accused persons to 2 years imprisonment on the said count. Secondly, though the trial magistrate had found PW2 to be truthful in his evidence on the said count this is dented by the fact that in his evidence at the lower court PW2 could not identify the accused persons at the scene of the crime apart from stating they were ten (10) in number. He stated “I did not know those people who were named by one Godfrey and I do not know if they were arrested.” The issue of identification of the accused persons on the part of PW2 was crucial because in his evidence he testified that the incident took place on 22/12/2003 at about 01.00 midnight. Thirdly, the evidence of PW2 is weakened by the failure of the prosecution side to call the watchman who PW2 had mentioned to testify before the trial court to corroborate the evidence of PW2 that he had introduced the accused persons to the said watchman as being policemen on patrol and that he should help them. This is what he stated in his evidence as narrated to this count by Mr.Maugo,the learned State Attorney “On 26/12/2003 at about 01.00 hours midnight I was home sleeping and I heard people passing outside and I opened my window to see and I asked them you have come to steal again? But they replied we are on patrol and we are police. They then ask if there is a watchman at the Bar and the shop which was near. But I told them there is only one watchman in the Bar. They then told me to go with them so as to show the watchman. I went and show them the watchman and told him he must be careful and help those police on patrol. At that time they were ten (10) in number. I then went back after half an hour I heard my watchman scream. I then came out and saw the accused breaking the shop hence I scream and neighbours appeared and started chasing the accused persons................” In my considered view, the failure o f the prosecution side to call the said watchman of PW2 to testify in the trial court to corroborate what PW2 had told him that the accused persons were policemen on patrol and should help them had weakened the prosecution’s case on the first count. As regards the second count, that is shop breaking and stealing c/ss 296(1) and 265 of the Penal Code, Cap. 16, Vol.l of the laws that was raised against the accused persons in the trial court, the trial magistrate in his judgment found that the said “second count had also been proven beyond reasonable doubt by the prosecution witnesses “hence he convicted all the accused persons on the said count. It is relevant to see how the trial magistrate evaluated the evidence in his judgment to arrive to the said conclusion. He stated as follows. “Looking in the second count of shop breaking and stealing one find that the evidence of all prosecution witnesses (PW1) to (PW4) shows that the shop was breaking and properties stolen. As PW 1 and PW2 in their evidence show that after hearing the scream o f help from their watchman they came out and chasing the accused persons with the help of other people and managed to arrest the deceased and the first accused person, with properties like Television. The evidence o f PW2 who escort the accused to where his watchman was after the accused persons personate themselves as police officers and thereafter the was broken and properties stolen show that the accused persons had intention of break and steal as if not why introduce themselves as Police Officers? Although it is only the first accused person who was arrested at the scene but he was the one who named the other accused persons and also show where they reside and manage their arrest. Although neither o f the other accused person upon being arrested was found with the possession of any stolen property but the fact that upon being arrested the first accused was found with Television it shows that all the accused person had similar intention o f stealing. Also one find that after being arrested it is the first accused who identify other accused persons by going with PW5 and other people to their home, this shows that the other accused where not present why did the first accused named them and went and identify them? Hence the court is convinced that the identification o f other accused persons by the first accused was proper.” However, the above findings of the trial magistrate are not free from shortfalls that faults the same. First, the trial magistrate convicted the accused persons believing the evidence of PW1, PW2 and PW3 that the identification of the other accused persons had been named by the first accused person and that to him it was proper. However, it is a fact that none of the accused persons other than the first accused person was caught at the scene o f the crime. PW1 and PW2 in their evidence stated that they did not identify the other accused persons (the present appellants) as they were many up to ten. So they depended on what the first accused person had named the other accused persons when he was caught. It is on received that the first accused person (Godfrey Fortunatus) had absconded after jumping bail hence he did not testify in the trial court therefore no opportunity to cross-examination him on the said point by the other accused persons PW2 and PW3 was afforded to the Appellants in the trial court. Further, the first accused person was a co-accused person so even if what he told PW1,PW2 and PW3 was to be believed still it would not have been safe for the trial magistrate to convict the Appellants based on what the first accused had told the said witnesses. In the case o f Augustino Mponda Vs. R [1991] TLR, this court (Mchome,J) stated “In convicting the Appellants relying on evidence o f a co-accused without independent corroboration the trial magistrate acted contrary to the provisions of Section 33 o f the Evidence Act, 1967.” Secondly, though PW1 and PW2 in their evidence testified that when the thieves broke the shop their watchman screamed and they responded to the said screams, the said watchman was not called by the prosecution side to testify in trial court as to how they had witnessed the alleged accused persons broke into the said shop and the stealing of the properties from the said shop by the said accused persons. Thirdly, even if PW1 and PW2 were to believed that they had seen the accused persons at the scene of the crime which is denied save for the first accused still it is a trite law that no court can convict on evidence o f visual identification unless all possibilities of mistaken identity are eliminated. This position was stated by the Court of Appeal o f Tanzania in the case of Waziri Amani Vs. R j"19801 TLR 252. The said Court held as follows: “No court should act on evidence of visual identification unless all possibilities o f mistaken identity are eliminated and the court is fully satisfied that the evidence is watertight. The following factors has to be taken into consideration 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, whether it was dark if so was there moonlight or hurricane lamp etc.), whether the witness knew or had been the accused before or not.” Therefore, the evidence of PW1, PW2 and PW3 on the identification of the Appellants which is based on what the first accused person had told them is very much doubtful. One does not rule out a possibility that the first accused person had so told the said witnesses just to save his life or himself. In the final result, this consolidated appeal has merit. It is hereby allowed save (DC) Criminal Appeal No. 143 of 2004 in respect of the third Appellant (Msafiri Lyamuya) which has been dismissed for want of prosecution. The first accused that, is Godfrey Fortunatus is also not covered in this judgment as he did not appeal to this court against the conviction and sentence imposed on him by the trial magistrate. Otherwise, I hereby quash and set a side the conviction and the sentence imposed on the 1st Appellant (Linus Stephano Njuu), the 2nd Appellant (John Michael), the 4th Appellant (Elias Shirima), the 5th Appellant (Awazi Hassani), the 6th Appellant (Mansuri Masoud) and 7th Appellant (Juma Salim @ Masamaki). They are hereby set free unless lawfully held under the law. It is so ordered. V/VtV'VvVv'v F.A.R.JUNDU JUDGE 24/7/2006 Right of Appeal explained. F.A.R.JUNDU JUDGE 24/7/2006 Date: 24/7/2006 Coram: F.A.R.Jundu, J For the 1st Appellant: ) For the 2nd Appellant: ) For the 3rd Appellant: ) For the 4th Appellant: ) - All present For the 5th A ppellant:) For the 6th Appellant: ) For the 7th Appellant: ) - present For the Respondent: Mr.Rwegerera, State Attorney CC: Mattiku C o u rt: Judgment delivered in the presence of the 1st, 2nd, 4th, 5th, 6th and 7th Appellants and in the presence of Mr.Rwegerera, learned State Atttomey for the Republic/Respondent. /W F.A.R.JUNDU JU D G E 24/7/2006 AT M OSHI.