Julius Mchafu, Salum Mussa v. Republic Cr app no 41 of 2004 (armed robbery in Tanzania)

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

CRIMINAL APPEAL NO. 41 OF 2004

(CORAM:   LUBUVA, J. A., KAJI, J. A., And KILEO, J. A.)

JULIUS MCHAFU, SALUM MUSSA………………………………..APPELLANT

VERSUS

THE REPUBLIC………………………………………………………..RESPONDET

(Appeal from the decision of the High Court of Tanzania

at Dar es Salaam.

(Ihema J.)

Dated 16^th September, 2002

in

High Court Criminal  Appeal No. 123 of 2001

REASONS FOR THE JUDGMENT OF THE COURT

KAJI, J. A.:

        On 27/11/2006, we allowed the appeal, quashed conviction and set aside the sentence. The appellants were ordered to be released forthwith unless otherwise lawfully held. Reasons were reserved which we now give.

        In the District Court of Kilosa, in Criminal case No.45 of 2001, Julius Mchafu and Salum Mussa, who are the 1^st and 2^nd appellants respectively, were jointly charged with and convicted of the offence of armed robbery contrary to sections 285 and 286 of the Penal Code. They were each sentenced to 30 years imprisonment.

The facts of the case may briefly be stated as follows:-

During the night of 15/2/2001, a gang of bandits armed with a firearm and machetes stormed the shop of PW1, Adam Mselemu, where PW2, Kanuti Fiiko was guarding. One of the bandits cut PW2 on the head. They looted PW1’s shop.

PW2 said he identified the appellants to be among the bandits who were involved in the robbery, and that he identified them through the light of a lamp.

        Few days later the 1^st appellant was found in possession of some properties which PW1 claimed to be among his properties stolen in the course of the armed robbery. The appellants were jointly charged with the above offence.

       

In their defence, both appellants denied to have been involved.  The 1^st appellant admitted to have been found in possession of some properties, but he claimed they were his.  The trial court was satisfied with the prosecution evidence that the appellants committed the offence charged.  The appellants were convicted and sentenced as indicated above.  They were aggrieved.

        On first appeal to the High Court Ihema, J. was of the view that the appellants were properly identified at the scene of crime, and further that the doctrine of recent possession was applicable in respect of the properties found in possession of the 1^st appellant.  The appeal was dismissed. Undaunted the appellants lodged this second appeal.

        In their joint memorandum of appeal the appellants preferred four grounds of appeal which basically boil down to identification at the scene of crime and the application of the doctrine of recent possession.  Their contention is that, since the offence was committed at night, it was necessary for the prosecution to adduce evidence that there was sufficient light, and that the conditions were favourable for a proper identification which is lacking in the instant case.  They further pointed out that PW1 did not give any description for the identification of the properties found with the 1^st appellant. In that situation, it was their contention that the doctrine of recent possession was not properly invoked.

Ms. Christina Maganga, learned State Attorney, who represented the respondent Republic, did not support the conviction on the ground that the appellants were not properly identified at the scene of crime. She said no description was given on how powerful the light from the lamp was was given.  The learned State Attorney also agreed with the appellants that the doctrine of recent possession was wrongly invoked as PW1 did not give any description how he identified those properties found in possession of the 1^st appellant to be his.

In our view we think there are two crucial issues in this case. First,  whether the appellants were properly identified at the scene of crime  and second, whether the properties found in possession of the  1^st appellant were properly identified by PW1 so as to invoke the principle of the doctrine of recent possession.

There is no doubt that the only witness who claimed to have identified the appellants at the scene of crime was PW2.   He claimed to have identified them by visual appearance through the light of a lamp, and that he never knew them before.  He did not describe how powerful the light was.  In our view, description of light was material to determine the issue of whether or not the conditions of identification and visibility were favourable for a proper identification.  It has been held by this Court in numerous cases that evidence of visual identification is of the weakest kind and most unreliable, and 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.  See for instance the case of Waziri Amani VR (1980) TLR 250.  In the instant case it is generally established that PW2 did not know the appellants before the event and there is no description of light. In that situation PW2’s evidence that he identified the appellants by their faces cannot be held to be absolutely watertight.  In that respect we agree with the learned State Attorney who did not support the conviction, that the evidence on the appellants’ identification at the scene of crime was not strong enough to found a conviction. 

As for identification of the properties found with the 1^st appellant, PW1 merely asserted that they were his.  He did not give any description as to how he identified the same to be his.  It was only the investigation officer PW4 No.6454 D.C Samwel, who said one of the items had a mark “KS” implying “Kishoka shop” which was the trading name of PW1’s shop.  This was not supported by anybody else not even PW1, the complainant.  Had the position been so as stated by PW4, we think PW1 would have said so because he was in a better position to know about it.   In the circumstances we are satisfied that PW1 did not properly identify the properties found with the 1^st appellant to be his.  In the circumstance, we agree with the

learned State Attorney that the doctrine of recent possession was wrongly invoked

It is for the foregoing  reasons that we allowed the appeal.

DATED at DAR ES SALAAM this 27^th day of December, 2006.

D.Z. Lubuva

JUSTICE OF APPEAL

S.N. Kaji

JUSTICE OF APPEAL

A.Kileo

JUSTICE OF APPEAL

I certify that this is a true copy of the original.

S. M. RUMANYIKA

DEPUTY REGISTRAR

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