20170710 TZHC Mbeya

It.

IN THE HIGH COURT OF TANZANIA

AT MBEYA D.0 CRIMINAL APPEAL NO. 67 OF 2016 (Original Criminal Case No. 335 of 2015 from the District Court of Mbozi)

OSCAR MKONDYA

OSCAR MGALA FRENKI MGALA J ............................APPELLANTS

VERSUS 'J.' HE REPtJBLIC. S.. • • • • ...••....•. . . . . . . ....••... . RESPONDEN'F .

JUDGMENT Date of last order: 1210612017 Date of Judgment: 1010712017 Dr. M.C. Levira, J The three appellants namely Oscar Mkondya, Oscar Mgala and Frenk Mgala were jointly and together charged before the District Court of Mbozi (herein referred as trial court) with two counts. These were: Armed Robbery Contrary to Section 287A of the Penal Code and Grievous harm Contrary to Section 225 of the Penal Code, Cap 16 R.E.

2002. The appellants were convicted as charged on both counts. Each one was sentenced to thirty (30) years imprisonment on count of armed robbery and seven years imprisonment on the Grievous harm charge. The appellants were aggrieved by both conviction and sentence of the trial District Court. They have appealed Page 1 of 16 I - to this Court faulting the trial court's decision on seven points as per petition of the appeal. They are: 1.That, the trial Magistrate was absolutely wrong to decide that the accused persons were visually identified while the brightness and the intensity of light illuminated from the said "CHINESE TORCH" was never described or known or determined. 2.That the trial Magistrate totally failed to determines (sic) the crucial issues of visual identification of the accused persons in the scene of crime instead he (sic) based his decision on familiarity of the accused persons with the victims. 3.That since the issue of visual identification of the accused persons in the night is the paramount issue to be determined in this case, the "CHINESE TORCH" alleged to be the one used to identify the accused persons was never tendered before the trial Magistrate and the Magistrate never satisfied himself (sic) whether the visual identification was water tight or not; therefore the trial Magistrate erred for accepting the presence of the Chinese Torch Page 2 of 16 which

was never tendered before the trial Court. 4.That the trial Magistrate erred both in law and in fact by simply accepting that the prosecution has proved the case beyond all reasonable doubts. 5.That the trial Magistrate erred both in law and in facts by convicting the appellants relying only to the doubted identification while the accused persons were not caught with any property suspected to be the one stolen or connected with the crime or/ or the prosecution never tendered any property or anything to be connected with the crime alleged to have been committed by the accused. 6.That the trial Magistrate failed to frame issues in relation to the case thus why he (sic) misdirected himself in his decision. 7.That the trial Magistrate erred both in law and in facts for convicting the appellant for the crimes they never committed. Before deciding on the merits or demerits of the appeal, I find it desirable to look briefly at the evidence which led to the conviction of Page 3 of 16 the appellants. The three appellants were jointly and together charged at the trial Court that on 1st C' day of Novernber,2015 at about 23.00hours in Ibembwa Village they stole a motorcycle make T- better and cash money at the tune of Tshs 3,000,000/= and immediately before such stealing they assaulted one Ayubu Laison Ca Myala and Yusta Mwampashe. On the material night PW1 and PW2 were still awake and

when they entered in their sleeping room, they heard the appellants breaking the door. The appellants succeeded to get the entrance to PW1 and .PW2. They started asking for money while attacking PW1 with iron bar and bush knife. With the help of light being illuminated from the mchina torch" hanged at the wall, PW1 and PW2 succeeded to identify the appellants. They saw the 1st and 2d appellants holding pieces of iron bar, bush knives and they were wearing torch in their fore head while the 3rd appellant had only with piece of iron. Fearing to be killed and for the purpose of saving the life of her husband, PW2 handed to the appellant the motorcycle key, cell phones, and the cash money valued at Tshs. Page 4 of 16 - 3,000,000/=. Following such attack, PW1 was left unconscious. It was the testimony of PW4 that on 02/11/2015 at about 03:30 hours he received PW1 and PW2 who appeared to had been terribly injured. PW4 treated them but, PW2 was referred to Mbeya Regional Hospital. The appellant, pleaded innocence. They denied to have had committed the offence and they stated that on the material date they were not at the scene of crime. In the end, the trial Magistrate was well satisfied that the guiltiness of the appellant was sufficiently proved and hence the conviction. Being aggrieved with the decision of the trial court, the appellant have lodged the present appeal. On the date

fixed for hearing the appellants appeared in person, they were not represented. The respondent Republic was represented by Ms. Xaveria, learned State Attorney who vigorously resisted the appeal. The three appellants had nothing substantive to submit understandably so being lay persons, they thus simply prayed for this court to adopt the grounds of appeal to form part of their submission. Page 5 of 16 In regard to the 1st, 2nd and 5th grounds of appeal collectively, the learned State Attorney submitted that the appellants were, properly identified by PW1 and PW.2 because there was enough light illuminated by the torch, the appellants were well known to the witnesses as they used to live in the same village; also, the appellants spent sometimes conversating with the witnesses in the course of attacking. Basing on those circumstances, it was the observation of the learned State Attorney that the trial court rightly convicted the appellants. Relaying in the holding reached in the case of Jumapili Msyete Vs. Republic, Criminal Appeal No. 10 of 2014, the learned State Attorney stated that the evidence of identification by recognition was strong to warrant conviction. She added that, the witnesses clearly proved the intensity of light and there was no need for the respondent to tender the torch because the law does not require doing so. She went ahead submitting that the complaint of

the appellants that the stolen properties ought to have been tendered does not carry any weight since it cannot change the fact• that the appellant committed such offences. Page 6 of 16 Turning to the complaints shown in the 4th and 7th grounds, it was the submission of the State Attorney that PW 1 and PW2 proved to the satisfaction that the appellants stole the money, cell phones and the motorcycle. That at the time of executing their plan, the appellants had weapons. As for the offence of Grievous harm, the learned state Attorney invited this court to believe the testimony of PW4 who saw PW1 and PW2 being in critical condition. For the rest grounds of appeal, it was the observation of the learned State Attorney that the charges against the three appellant were proved to the required standard set by the law. Therefore, she prayed for this court to dismiss the appeal and uphold the decision of the trial court. The appellants had an opportunity of making the rejoinder. They faulted the trial court decision in the sense that they were not properly identified. I have considered the evidence on record, the grounds of appeal and the submissions from the learned State attorney. The bottom line of the appellants' complaints against the decisions of the trial court fall in the following premises, namely; whether the trial Magistrate erred in holding that the appellants were properly

identified at the Page 7 of 16 scene of crime and; whether the trial Magistrate erred in holding that the charges against the appellants were proved beyond all reasonable doubts. To begin with the first issue, while examining the issue of identity of the appellants, the trial Magistrate at page 9 and 10 of the typed Judgment reasoned thus: "I have also taken heed to the accused persons' testimony and noted one common thing that the victim and the accused persons knew each other very well as they all leave in the same village with the exception of the first accused person who now resides at Tunduma. However the testimony of PW1 is to the effect that, before the accused person committed the offence they had same conversation which later ended to commission of the offences of grievous harm and armed robbery. PW2 on the other hand among other things told this court that at the time of commission of the offences charged the second accused person was confining her to the extent that she could not be able even to scream for help, this alone in my view makes any reasonable person believe that the accused persons were recognized by the victims much more because Page 8 of 16 they knew each other even before the day of incident. Apart from the accuseds' challenge of light used to identify them they have not raised anything more to challenge the testimony adduced by the prosecution

witnesses. The light challenged was mentioned by PW2 that it was from the Chinese torch (taa ya china) which had enough light as electricity light. From the adduced testimony by the prosecution, I am satisfied that the offence of grievous harm and armed robbery have been committed". From the above extract it is clear that the trial magistrate adequately addressed and eventually satisfied herself that the appellants were properly identified by considering at least three points. She was satisfied that the intensity of light was enough to the extent of removing mistaken identity, the appellants were well known to the witnesses and they stayed for a longer period and also the witnesses had enough time of observing the appellants. In addition the trial Magistrate believed that the witnesses were truthful witnesses therefore the credence of their testimony remained unshaken. Page 9 of 16 At the outset it is health to be minded with the salutary canon of the law that no court 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 it is absolutely watertight. And the courts should closely examine the circumstances in which the identification by each witness was made. (See for instance the cases of Waziri Amani Vs. Republic [1980] TLR 250, Walter Dominic @ Omundi and Another

Vs. Republic, Criminal Appeal No. 15 of 2005 (unreported), Samwel Thomas Vs. Republic, Criminal Appeal No. 23 of 2011, Raymond Francis Vs. Republic [1994] TLR 100, Augusto Mahiyo Vs. Republic [1993] TLR 117, Alex Kapinga & 3 Others Vs. Republic., Criminal Appeal No. 252 of 2005 (unreported) among others. In the well celebrated case of Waziri Amani Vs. Republic (supra), the following words about the evidence of visual identification were underscored: "Although no hard and fast rules 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 Page 10 of 16 the surrounding circumstances of the crime being tried. We would, for example, expect to find on record questions as the following posed and resolved bg 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 dajj 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".

(emphasis supplied) With the approval of the principles propounded in the case of Waziri Amani Vs. Republic (supra), the circumstances demonstrating proper visual identification and recognition of the culprits were further emphasized in the case of Shamir John Vs. Republic Criminal Appeal No. 166 of 2004 Court of Appeal of Tanzania at Mwanza: How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in Page 11 of 16 anyway, as for example, by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? What interval had elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witnesses when first seen by them and his actual appearance?.... Finally, recognition may be more reliable than identification of a stranger, but even when the witness is purporting to recognize someone whom he knows, the court should always be aware that mistakes in recognition of close relatives and friends are sometimes made". Turning to the instant case, I am in agreement with the position reached by the trial court and later conceded by the learned State Attorney that nothing was left unturned

pertaining to the circumstance which led to the identification of the appellants. The evidence of PW1 and PW2 was loud and clear that the scene of crime was sufficiently illuminated by the light from "taa ya mchina" as well as the light from the torch which was held by the Page 12 of 16 appellants themselves. It was evident on record that the appellant remained for sometimes in the room while confining PW2 and asking her the whereabouts of money and the key of the motorcycle. Another piece of evidence from PW1 and PW2 was to the effect that the appellants were not strangers, they used to live in the same village and such fact remained as established fact because it was not disputed by the appellants. Being as such the prosecution witnesses were not burdened to identify except to recognize them. As the court lucidly held in Shamir John Vs. Republic (supra) it is my respective view that the evidence of recognition from PW1 and PW2 is of greater weight and it is more reliable than identification which could have been done by stranger. In the event, it is worth believing that the identification of the appellant was free from difficulty and the complaint of the appellant that the mchina torch was not tendered to form part of the prosecution evidence is baseless and its absence cannot be said to have affected the case. I now wish to discuss the second part which is whether the

charges against the appellants were proved beyond reasonable doubts. The significant questions which Page 13 of 16 attracted determination involve whether the alleged offences were committed and whether the appellants were the only culprits behind their commission. It is apparent on record and of course it is a common knowledge that the appellants were charged with two offences namely armed robbery and grievous harm respectively. As for the proof of the offence of Armed Robbery, the trial court was satisfied that the prosecution witnesses stated nothing but the truth about its occurrence. Following the sequence and consistence of evidence on record I share the same position, like of the trial court that the credibility of PW1, PW2 and PW3 was not impeached. Had there existed any cogent reasons for disbelieving the testimonies of the prosecution witnesses particularly about the commission of armed robbery, the appellants were at best part of raising their concern at the trial court. Admittedly, the incident was not only anticipated by the prosecution witnesses but also it was in the knowledge of the 2nd appellant who heard about the incident. As for the offence of Grievous Harm, I have keenly scanned the evidence of PW4, the Medical Officer and the Page 14 of 16 exhibit PF3. Basically, I have realized that the fact that PW1 and PW2 were injured was sufficiently established ( by

the prosecution. The appellant, neither objected the admission of the exhibit PF3 nor did they challenge the same when making their defence case. Like it appears to PW1 and PW2, the credence of the testimony of PW4 remained intact in the fact that the witnesses were injured. Being the circumstances which transpired, and taking into account that the appellants were properly identified at the scene of crime, it is firm view that the appellants did commit the offences they stood charged at the trial court. Therefore as the learned State Attorney opined, the trial court rightly convicted them. In the event, and for the reasons stated above the appeal is non meritious and the same is hereby dismissed. Dr. M. C. Levira Judge 10/07/2017 Page 15 of 16 Date: 10/07/2017 Coram: Hon. Dr. M. C. Levira, J Appellants: All presents Respondent: Ms. Benadetha Thomas - State Attorney C/C: Sichaiwe Flora Court: Judgment delivered in presence of Ms. Benadetha Thomas State Attorney and all the three appellants this 10th day of July, 2017. eight of Appeal Explained. ILI jç: I : RIA '.;. Dr. M. C. Levira Judge ' * " 10/07/2017

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