20110916 TZHC Mbeya

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IN THE HIGH COURT OF TANZANIA AT M,BEYA DC CRIMINAL APPEAL NO. 17 OF 2010 (Originating from Mbarlai District Court Criminal Case No.128 of 2008) NYIGA KINYALU ... ... APPELLANT

VERSUS THE REPUBL IC ... ... ... RESPONDENT

JUDGMENT Date: 27.5. & 16.9.2011 S.A.N. WAMBURA, J. The Appellant one Nyiga Kinyau and the first accused Mushangi Shimbi were jointly charged of the offence of armed robbery contrary to section 287 of the Penal Code and sentenced to 30 years imprisonment in a Criminal Case No. 128 of 2008 in the I)istrict Court of Mbarali at Rujewa. Being dissatisfied with both conviction and sentence the second accused decided to lodge an appeal to this Court. Brief facts of the case are. The Appellant one Nyinga Kinyalu and another 7th day of June were jointly charged on I 2008 at about 3.00hrs at Tagwanu village within Mbara]i District in Mheya Region of stealing cash Tshs. 450,0001= the property of Kasema Ndaki and, at or immediately before or immediately afier the time of stealing that cash of money did cut one Kaserna Ndaki on his head and Savai Ng'wandu at her face near to the left eye by using a knife and panga in order to retain the said cash of money. 1- The Appellant has presented (10) grounds in his memorandum of appeal.

1) That he denied to have committed the offence as alleged by the Prosecution side. That according to the evidence in record the incident occurred during the night and the identification of night has a great possibility for a witness to make honest mistake in identification even if the suspect is known as appeared in this case. He cited the case of Waziri Arnani V.R (1980). That to be invaded is very dangerous action therefore one who is invaded must be in a confusion state. In this case PWI in his evidence testified that as soon as bandits entered they cut him with Panga and lost his consciousness. Also PW2 was cut by Panga and beaten by stick. This means that they were both in confusion state. 1-Tow then can one who is in confusion state make correct identification? He cited the case of AUCUSTIC KANTE V. R (1982) T.L.R No 122. That according to the evidence in record PW5 said that he identified appellant at the scene by the help of moon light and torch why did he use torch that means it was dark therefore it was the duty of PW5 to explain the amount produced from his torch therefore it was possible to make honest mistake in identification. 1-ic cited the case of CHILONJI V. R IN CRIMINAL APPL NO. 101/2003. U That Kerosene lamp's light is of most weak to enable a witness to identi' culprits the amount of light produced from the lamp of PWI & PW5 was not known and there is no

any description as how the culprits wore and there is no any report given by PWI ,PW2, and PW5 prior the arrest of Appellant to prove that Appellant was identified at the scene of crime. He cited the case R V. MOHAMED BIN ALLY (1942) E. A. C. A 72. That the learned trial Magistrate erred in law and facts to believe that the Appellant went to the house of PW1 and PW2 without considering the following (a.) PWJ testified that both accused (DWI and DW2) went to his home to demand money in the presence of his wife (PW 2) but PW2 (wife ofPWl) said that only 2nd accused (appellant went there and was asked about her husband if he was present and PW2 was just told by her husband that he met with the nd accused (appeiia: on the way) and (b) according to the testimony of PWI & PW2 is that prior to the event they went to report to VEO and Police about the issue of Appellant to demand money at the home of P\V I & PW2 but these village authority and police officer (Moses) were not called as witness to prove the story of PWI & PW2 that failure of the prosecution side to call these important witness show that the whole case was just planted by the complaint for his own benefit. That the 1-lonourable trial Magistrate erred in law and fact convicting Appellant relying on the evidence of PW 6 without considering that his evidence was not corroborated by other ndependent witness, that PW 6 said

the Appellant at the time of arrest told him that " mwenzangu anicitaja, tunializane nitakupa pesa na simu" this piece of evidence was not proved by any other independent witness and the lw warns that all confusion should be caution in nature. He cited the case of M''ANG! NJOROGE V. R (1954) 7 EACA- 337 8.) That there are some. cofltradicUons among the w3tnesses which create setne doubts (a) PWI said both acu;ed went at their borne pri.er,i.fte eve tjcdeman.d nionev hlt; PW2 (his wife) said, only '2 accused there to ask for her hushane. (b) PW4 said that there w: noinoon shine i i d ncvci idc,it icd culp ts But PW5 - id that he i oo' was shining and he tdentifle Appellant. The contradictions hring sonic doubts tIiIt the 'as planted. 9 ) Jht ccoJd1nQ 10 iJie ev'dence n ccoid, PV I was the one who was serjously wounded till he ost his curiousn'ss. The PF3 \\hlCh was 1ndei d beio1c 11 c coiiil w-is of PVt'7 V111() x'c not serious wounded. Moreover thá explanation given by the doctor differs from the teimony of PW2. This brings some doubt that there was great lie in this case. lO.)That, his defense evidence was not considered during the Judgment. That the learned trial Magistrate convck.1. Appellant due to the weakness of defense case. 1he ia was 4 El that at no time an accused should not be convicted on the weakness of his defense. He cited the case of ALLY V. KAILU (1960) T.L.R

170. That the charge against Appellant was not proved by the prosecution side beyond reasonable doubt. He thus prayed that his appeal be allowed, conviction quashed, sentence set aside and he be set free. At the hearing of the appeal he had nothing to add apart from what was state.d in his memorandum of appeal while Mr Mabrouk who appeared for the Republic made submissions in regard to the grounds raised in the following manner:- As Ihr the allegation in the .1st - 5th ground he submitted that it is tiUe that the offence occurred at night as staied by PW1. & PW2 who idcntifi'd two people who invaded them out of the. few and according to thein die lights were on and the people who they identified are known to them as1L ' were i;ving with them in the village for two years and the Appellant did not dispute that he knew the vIctims. He submitted further that considering that they know each other and the lights were on and in a room so the distance was close enough for PWI and PW2 to identify them and thus the question of mistaken identity could not aris in this case. Citing the case of Waziri Ainani V. R. He thus prayed this ground be dismissed. As for the allegation of contradictory evidence between PWI & PW2 that ui1 the ] and 2 accused demanded money they got from TANAPA. lie submitted that it is in record that PW2 was the only person who was at home 5 when they went to demand

for money. PW I only met the I accusea person so PW2 could not mention the 2 accused person as he did not see him. Mr. Mabrouk submitted that at page 20 of the court proceedings, PW2 stated that they went separately so there is no contradiction at all. As PW2 is the one who saw all the accused when they went at their home. He further alleged it is in record that PW1 and PW2 called for help. PW4 & PW6 were the ones who went to help them. They met the Appellants whom they knew coming from PWI 's residence. PW4 turned hostile the prosecution pràyed to tender his stalement in court. The trial magistrate stated why he relied on the stater3ent which was similar. to PW5. He, submitted that the contradiction was due to the fact that PW4 turned hostile and all the procedure were fi')!lowed lie thus prayed that this ground is not considered and the appeal be dismissed. As for the allegation raised in respect of the PF3 He submitted that the Appellant challenged the PF3 of PW2 who was not injured a lot compard to PW1 , He submitted that prosecution was the one which knew 'what happened and who was injured most. This proves that they took part in the offence as they knew who they injured most. He further stated that it is his submission that the judgment and sentence are correct and ought to stand and this appeal should be dismissed in its entirety. In his rejoinder the Appellant submitted

that it is said the I St and 2h1c accused demanded money prior to the invasion and they reported the same to the police. PW2 said only one person went to their home while PWI said two people went. These are husband and wife talking of two different things the Appellant is questioning why? He submitted further that again PWI said 6 he was alone when he went to assist PWI & PW2. That it was dark outside and was talking to him. PW 5 said they were together and there was moon light that he identified them by the use of a torch the amount of light was not stated. It is his belief that thus the case was just planted on him. He thus prayed that the appeal be allowed and he be set free. Having carefully gone through the submission of both parties I will now proceed to deal with the grounds of appeal as raised by the Appellant.. It is alleged in the '1 ground of appeal that he denied to have committed an offence as alleged by the prosecution side. There is no doubt that the Appellant denied to have committed the offence as alleged by the prosecution side therefore it is not disputed at all. As regards the 2' ground, I will discuss it with grounds 3, 4 and 5. It is alleged that there was a mistake of identity at the night when the offence was committed. It is in record that the Appellant was identified by P\V1, PW2 and PW5. I agree with the submissions of Mr. Mabrouk that it is true That

the offence occurred at night but the Appellant was identified. PWI and PW2 were able to identify the Appellant and the 1 St accused through the lights of the hurricane lamp which was in the room. That the Appellant had been living in the same village with them for some two years. Again prior to that the Appellant had visited their house and demanded a share of money 'from TANAPA. It was the V 1 accused who ordered to be given a share of money from TANAPA. The Appellant was the one who took that amount of Tshs 420,OOO/. The i accused had tied PWI 's hands with a piece of cloth when VA they invaded the house and attacked them with machetes. It is obvious that there was enough time to observe the Appellant and the St accused. Again both PWI and PW2 saw the Appellant and the 1st accused carriJa machette (panga) and knife, a fact which is corroborated by PW5 who met them after PWI and PW2 raised an alarm for help. The evidence of PW5 shows that he was able to idenlify them with the help of torch and moonlight. However the Appellant in ground 3 of his appeal is claiming that PW5 did not explain the amount of light produced by his torch in which he used to identify him. it very unfortunate and J have never come across a measurement of ai' amount of light produced by a torch. PW1, PW2 and PWS as well as the Appellant were residents of the same village and knew each other. PW5 was a!so

a ten celLieader in the village; therefore it was easy to identify the Appe lant. According to PW5 it was the Appellant who ordered the 1 accused to shoot them with a gun when they met iJit night. 1-Jowever they realized tha{ they did not have a gun but Cfli had a 'nachette and a knife, PW5s evidence concerning threats is also corroborated by PW4 in his evidcnceaithough he did not identify both tile Appellant and the I St accused he admitted that they were threatened. [See the case of WAZlRI AMANT V. R (1980) TLR 250, and MOHAMED Q11/0 BAKARI AND OTHERS V. R [1989] TLR 134 '1 wish to quote the holding in the case of Waziri Arnani V. 1 '(supra) In which the Court of Appeal stated that :•- "No cour?.s hould act oii evidence of visual identification unless, all possibilities of mistaken ic/en/it); are eliminated and the court is fill/V salisfied iilC evic?enc'e is ii'aier!ighi. The ,followng factors have to be taken info cons ic/era, ion: the th'ne the witiess had the accused under 0 0 observation , the distance at which he observed hi,,,, the conditions in which such observation occurred for instance whether it was day or iiight ( whether it was dark if so was there moonlight or hurricane lamp etc) whether the witness knew or had seen the accused before or not" (emphasis mine). The conditions laid in the case of WAZIRI AMANI V. R (Supra) have been met in this case for PW.1, PW.2

and PW.5 they knew the Appellants prior to the committing of the offence. PW. I and PW.2 saw them earlier that day. They were in a room which had light. They tied PW. 1 's hands and cut them with a knife and machete, so they were very close to them and had ample time in observing them as they were demanding money. At night PW.5 identified them through moonlight and by use of a torch and realized that they did not have gun. Thus from the evidence of PW 1, PW2, PW4 and PW5 it is worth saying that the issue of mistaken identity could not arise. I have noted that at the trial court PW4 was treated 'as a hostile witness after his testimony and the prosecution side prayed to tender the cautioned statement of PW 4 which the learned trial Magistrate admitted as "Exhibit P2". Before I proceed it is worth giving out a definition of a hostile witness. Concise Oxford Dictionary Tenth Edition (1999 - Revised 2001) defines hostile witness as a - "Witness who is antagonistic to the party calling them I have gone through the evidence of PW4 in the proceedings and I cannot say that PW4 turned hostile in his testimony. It is in record that lie alleged that he did not identify the accused persons however he admitted to have seen three people that night. Apart from that he admitted to have been threatened. One wonders how this person was treated as a hostile Witness. Moreover the purported

cautioned statement which was tendered and admitted as Exh.P2 by the prosecution is not of PW4 although it was marked as cautioned statement of PW4. I wish to quote few words in that cautioned statement:- "ANAELEZA: Ni nakumbuka ninarno tarehe 12/06108 rnjira ya saa za usiku mimi nikiwa na mume wangu aitwayc Kasema Ndaki tukiwa tumelala..." It goes without saying that the cautioned statement was of PW2 despite of having PW4's name in the heading of that cautioned statement. With due respect the learned trial Magistrate did not read the contents of what was written in that statement apart from admitting it as an exhibit. it is my view that the cautioned statement was wrongly admitted as cautioned statement of PW4 while the wil:ness did not turn hostile. Therefore exhibit P2 can not be relied upon in this court in respect of PW4's statement. I will also deal with ground 6 and 8 of the appeal together as they have similar allegations. it has been submitted by the Appellant in his rejoinder that there is a contradiction of evidence between PWI and PW2 as to who visited the house prior to the incident. Is it the Appellant or I SI accused. I again agree with Mr. Mabrouk. that there was no contradiction as it is. in IiJ record that PWJ. was the only person who was at home when they went to demand money. PW2 could not mention the 2nd accused as he did not see him. PW2 only met him on

his way the fact which was corroborated by PWI. Again calling a police officer or a village chairman cou]d be cementing the prosecutions case but was not necessary. In fact even if it is argued that there is no proof that they visited the home of PWI and PW2 during the day, it does not mean that they did not break into the said house that night. As for ground 7 it has been alleged by the Appellant that the trial Magistrate erred in law and fact in convictinghim relying on the evidence of PW6 as it was not corroborated b y other independent witnesses. It is in record that the prosecution side was able to summon six witnesses during the hearing of the case. There is no where in the judgment where it shows the Appellant was convicted based on the evidence of PW6. I-however the e\'idence of PW6 gave additional weight to other evidence produced by the prosecution side as he was the one who arrested the Appellant at a gue.st house called "Jaraka" a fact which has been admitted by the Appellant in his defense. It has been alleged by the Appellant in his last ground of appeal that his evidence was not considered by the trial court and lie was convicted on the weakness ofhis defense. That the charge against him was not proved beyond reasonable doubt. I have gone through the judgment of the trial court however there is no finding which shows that the Appellant was convicted on the

weakness of his defense. It was through the strength of prosecutions evidence which was based on the ground of identification of the Appellant at the scene of the crime that the trial Magistrate reached that decision. It is trite law that the standard of proving a case in criminal matters is beyond reasonable doubt. This has been repeated in a number of cases. For example the cases of JONAS NKIZE V R (1992) HC TLR 213 and WOODMINGTON V. DPP [1993] A.C. 462 to mention just a few. In the case of JONAS NKIZE V R (supra) it was held that:- "The general rule in criminal prosecution that the onus ofproving the charge against the accused beyond reasonable doubt lies on the prosecution, is part of our law and forgetting or ignoring it is unforgivable, and is a peril not worth working" It is undisputed that the root of this matter lies on the identification of the people who invaded PW. I and PW.2. There is no doubt that in the instant case the question of mistaken identity of the Appellant does hot arise as it has been proved that both the Appellant and the 1 St accused person committed the crime that night. Therefore the case against the Appellant was proved beyond reasonable doubt. I accordingly dismiss the appeal for want of merit. S.A.N. WAMBURA

JUDGE 19.09.2011 12 -V Date: 16/9/2011 Coram: Hon. S.A.N. Wambura, J. Appellant: Present. For the Republic: Mr. Mabrouk - State Attorney. C/C: Mrs. F. Mponzi. Mr. Mabrouk: Matter is for judgment and we are ready. Appellant: I am so ready for the judgment. 161h day of September 2011 at the presence Court: Judgment delivered this of the Appellant and Mr. Mabrouk - State Attorney for the Republic/Respondent. Right of appeal explained. S.A.N. WAMBURA

JUDGE 16.9.2011 CERTIFIED true copy of the original Judgment. (. C,i-- - (DISTRICT REGISTRAR OF ra \' A 1 13