IN THE COURT OF APPEAL OF
AT
MWANZA
(CORAM: LUBUVA, J.A., MROSO, J.A., And
RUTAKANGWA, J.A.)
CRIMINAL APPEAL NO. 178 OF 2004
1. DANIEL NGURU
2. HAMAD MOHAMED
LYAMBAKA
3. HUSSEIN KYAMBA
NYAWAYA …….….… APPELLANTS
4. ABDALLAH SOSPETER
MABOMBA
5. NYEGINI ALEX
VERSUS
THE REPUBLIC ….……..……………….….
RESPONDENT
(Appeal
from the Judgment of the High
Court
of Tanzania at Mwanza)
(Mchome,
J.)
dated
the 2nd day of July, 2004
in
HC
Criminal Appeal Nos. 4, 5, 6, 7, 8 of 2003
-------------
JUDGEMENT
OF THE COURT
26 February & 16
March 2007
RUTAKANGWA,
J.A.:
The five
appellants were jointly and together charged before the District Court of
Musoma with two counts. These were: Armed robbery c/ss 285 and 286 of the Penal
Code and gang rape c/s 131A (1) and (2) of the Penal Code. The offences were alleged to have been
committed at or about 22.45 hours on 27th December, 1999 at Ryamgabo
Village Musoma District while the offenders were armed with a sub-machine gun.
The
appellants denied the charges. Four
witnesses, namely Mkirya Ibogo (PW1), Nyakuzira Mkirya (PW2), Mstapha Imesho
(PW3) and Jastine Kitoki (PW4) testified for the prosecution. The appellants were convicted as charged on
both counts. Each one was sentenced to
thirty (30) years imprisonment on the count of armed robbery and life
imprisonment on the rape charge.
Dissatisfied by the convictions and sentences, they all appealed
separately to the High Court at Mwanza.
The High Court (Mchome, J.) found their appeals devoid of any merit and
dismissed them. Aggrieved by the High
Court judgement, they have appealed to this Court.
Although
the appellants issued and lodged a joint notice of appeal, each one filed his
own memorandum of appeal whose respective grounds of complaint are
identical. In their respective memoranda
of appeal and both written and oral submissions, they are challenging the
decision of the High Court which upheld their convictions on the following
grounds:-
(1)
The identification evidence
going to implicate them with the robbery and rape was not corroborated and did
not meet the guidelines spelt out in the case of Waziri Amani v. R. [1980] TLR 250;
(2)
The two courts below erred
in not treating the evidence of the prosecution witnesses’ as lies because it
contained a lot of contradictions;
(3)
The weighing scale used to
implicate them was not sufficiently identified to be the property of PW1 and
was not tendered in evidence by the appropriate person, i.e. a police officer;
(4)
The evidence of PW1 and PW2
who are husband and wife ought to have been taken with great caution as they
might have conspired to implicate the appellants;
(5)
PW3 was an accomplice and
his evidence ought to have been taken with great circumspection;
(6)
The High Court overlooked
the fact that PW2 was not found with sperms when examined by a doctor;
(7)
Since PW2 had no bruises
and her PF3 Form did not show that there was penetration, then rape was not
proved, and
(8)
The High Court judge did
not objectively evaluate the entire evidence on record.
Mr. Feleshi, learned Senior State
Attorney for the respondent Republic, responded to these grounds of appeal
briefly and generally. He did not
support the decisions of the two courts below.
In supporting the appeal Mr. Feleshi
argued, very correctly in our view, that the anchor of the prosecution case was
identification evidence and the application of the doctrine of recent
possession. To him, the identification
evidence of PW1 and PW2 ought not to have been relied upon as it was flawed with
contradictions. He instanced the
evidence of PW1 who claimed to have known the 1st appellant prior to
the robbery but claimed his name was Nyakyarezo which contradicted with that of
PW2 who said his name was Nyambaka.
Furthermore, he pointed out that PW2 testified that she also knew the 2nd
appellant as Nyambake. Another
contradiction he pointed out was in the evidence of PW3 and PW4. Whereas PW3 testified that the 3rd
appellant was arrested on 31/12/1999, PW4 said that he was arrested at
Mwanza. He finally submitted that “if
the identifying conditions were favourable, then the confusions in the names
would not have arisen”. On the basis of
these contradictions he urged us to hold that the identification evidence was
very weak. He prayed the appeal to be
allowed in its entirety.
Before we
discuss the points raised in the memoranda of appeal we would like to give a
brief account of the case which was presented to the trial District Court.
The first
three prosecution witnesses, i.e. PW1 Mkirya Ibogo, PW2 Nyakuzira Mkirya and
PW3 Mstapha Imesho reside at Ryamgabo
Village
On
27/12/1999 at about 9.45 p.m. PW3 had gone to his shop/hotel riding a bicycle. On arrival, as he was about to open the door,
he heard a voice telling him that he was under arrest. Then two people appeared, one of whom was
donning a T.P.D.F. uniform and another one had a gun. He was ordered to lie on the ground, which he
did. His hands were tied with a
rope. Then one of them took TShs.
160,000/= from him and the shop’s keys were also taken. The shop was opened and buns taken
therefrom. At the same time some other
people arrived and they totalled seven in number.
After
hitting PW3 with a panga and clubs, he was helped to stand up. They took him to the rear side of the shop,
opened it, took whatever they wanted and packed them in polythene bags and
cloths. They loaded them on the bicycles
they had. Thereafter they ordered him to
call out to PW1. He obeyed and called
PW1 thrice. By that time, PW3 had
already recognized some of the bandits.
Those he recognized by the help of light from the full moon were the
five appellants, who were well known to him prior to that day.
On being
called out by PW3, PW1 who was with PW2 in their house-cum-shop got out of bed
and lit a lamp. As he was putting on
some clothes he was commanded from outside to hurry up as they were soldiers
from Kiabakari searching for contraband goods.
As soon as he opened the door he was “put under arrest” and hit hard on
the shoulder with an iron bar. He was
pulled violently out of the house, and was shown a gun. Then the 3rd and 4th
appellants entered the shop and begun to demand money from PW2, who told them
that the money was with PW1. She was
thrown out of the house and chained. The
2nd appellant placed a panga on PW1’s neck demanding money. PW1 directed them where the money was. They took TShs. 140,000/=. Then PW2 was unchained, taken only five paces
away and was ravished in turns by all the gangsters in the presence of PW1 and
PW3. After satisfying each one’s beastly
desires, they re-tied her. Then the 1st,
4th and 5th appellants entered the shop, leaving the 2nd
and 3rd appellants outside.
They stole a lot of merchandise including a weighing machine, all valued
at TShs. 685,080/=. They then settled
down under the full moonlight to celebrate their “victory” by drinking sodas
and buns stolen from the two shops. While
they were so entertaining themselves, PW3 managed to loosen the ropes tying him
and on freeing himself he escaped.
After PW3 had covered a safe distance,
he raised an alarm. The bandits then
took to their heels with their loot.
People responded to the alarm and freed PW1 and PW2 who mentioned the
five appellants to have been among the robbers.
The bandits were pursued and arrested immediately thereafter with the
exception of the 3rd appellant who escaped but after being cut with
a panga by PW4. He was subsequently
arrested in Mwanza. Of all the goods
stolen, only the weighing machine was allegedly recovered.
All of the appellants denied to have
committed any of the two offences. They
unequivocally denied to have been anywhere close to the shops of PW1 and PW3 on
the material night. They claimed they
were arrested because of local political rivalries. The 3rd appellant told the trial
court that he was in fact arrested on 24/1/2000 at Isamilo, Mwanza by policemen
who were looking for his relatives from Musoma.
Because they missed them they arrested him and his wife, detained them
at Mwanza Central Police Station until 2nd February 2000 when they
were transferred to Musoma and charged on 4/02/2000.
The trial District Court accepted the evidence
of PW1, PW2 and PW3 to be true and convicted all the appellants as
charged. It did so after finding PW1,
PW2 and PW3 to be credible and reliable witnesses. Their
evidence not only proved the offences of robbery and rape but gravely
incriminated the appellants.
On the issue of identity of the
culprits, the learned trial Resident Magistrate reasoned thus:-
“I
will now answer the last issue i.e. whether accuseds are real culprits. PW1 Mkirya, PW2 Nyakunzirya and PW3 Mustapha
deposed that they knew accused persons before the material time. All of them deposed that they knew the first
accused by name … PW1 Mkirya deposed that the accuseds were his customers. PW3 Mustapha did testify that he saw and
marked the accuseds faces. He added that
he identified the first accused by the name of Nyakihezero as he was known at
their home village. He identified the
second accused by the name of Nyambuke as it was known at their home.
Given the nature of evidence we do not
have reasons to fault PW1 and PW3’s identification evidence. They deposed that they identified the thugs
as it was a night with full moonlight.
There was ample time to identify them and the thugs were very close at
least at the time of demanding money and also at the time of tying them.
The identification evidence given by PW2
Nyakunzirya was in my firm view very tight.
She knew the accuseds before as they were their customers. She had also ample opportunity to identify
them very closely at the time they raped her in turn assisted by the moonlight.
Not only that but also after an alarm
was raised by PW3 Mustapha the first, second, third and fourth accuseds were
apprehended immediately at their place.
It was almost a hot pursuit. The
third accused was found dressed in T.P.D.F. uniform which he wore in commission
of the offence. The first accused was
also surrounded as per PW3 Mustapha and PW4 Jastine Kitoki and found with a
weighing scale that was stolen and a gun.
He managed to escape although he was injured by Jastine Kitoki.”
From the above extract it is clear that the trial
magistrate adequately addressed himself on the need for caution before
convicting the appellants in reliance on the correctness of the evidence of
identification of the appellants which was hotly contested. He was absolutely satisfied that there was no
mistaken identity as the appellants were known to the witnesses. We would like to observe, however, that
reference to “the first accused” in the last sentence of the extract was only a
slip of the pen. The learned magistrate
had in mind the 5th accused (now 3rd appellant) who was
mentioned specifically by both PW3 and PW4 and was indeed arrested in Mwanza.
The learned
first appellate judge unreservedly concurred with this crucial finding of fact
by the trial court. He, too, was of the
firm view that the appellants were clearly identified by the three prosecution
witnesses as there was light from the full moon and a lamp and they took a long
time to commit what he called the “heineous crime”.
This is a
second appeal. The law is now well
settled that in a second appeal the court is always cautious in reversing
concurrent findings of fact made by the courts below unless they are, on the
face of it, unreasonable or perverse.
Such a situation can occur when it is clearly shown that there has been
a misapprehension of evidence, a miscarriage of justice or a violation of some
principle of law or practice. In short,
this is a jurisdiction which we exercise very sparingly: see for example, Dr. Pandya v. R (1957) E.A. 336, Amraltlal D.M. t/a Zanzibar
As we
clearly stated at the beginning, the crucial issue in the appeal is that of
visual identification. Have both parties
to this appeal raised any good ground upon which we can fault these concurrent
findings of facts? Our considered answer
is in the negative.
The
evidence of PW1, PW2, PW3 and PW4 is what is known in law as positive evidence. This is evidence where a witness testifies
that a particular event did or did not occur.
In the leading case of Commonwealth
v. Webster (1850) 50 Mass.
“The
advantages of positive evidence is that it is the direct testimony of a witness
to the fact to be proved, who, if he speaks the truth, saw it done, and the
only question is whether he is entitled to belief. The disadvantage is that the witness may be
false and corrupt, and that the case may not afford the means of detecting his
falsehood”.
This
disadvantage has not been suggested either by the appellants or by Mr. Feleshi
who supported the appeal. The assault on
the veracity of PW1 and PW2 was based on the fact of their being husband and
wife. To us this cannot be a good reason
for doubting, leave alone discrediting, their positive evidence. As this Court succinctly stated in the case
of Ezekiel Noel v. R, Criminal
Appeal No. 25 of 2002 (unreported), there is no law prohibiting persons in
filial or conjugal relationship, from corroborating one another. In this particular case, fortunately, the
evidence of both witnesses need no corroboration at all. So this ground of complaint fails.
Another
ground of complaint is that there was no proof of penetration in respect of the
rape offence for the reasons already stated.
This too is arid of merit.
Penetration is not proved by presence of semen on the body of the prosecutrix
or bruises on her vaginal region. If
bruises were such a natural consequence then many women would have opted for
total abstinence. The best proof was
provided by PW2 herself who categorically stated that all the appellants
carnally knew her in turns. There is
unchallenged evidence on record showing that when the 4th appellant
was carnally knowing PW2, the 5th appellant asked: “anakata kiuno?” and the 4th appellant replied, “ananichezea”. We find support for our proposition that the
best evidence on penetration in the case of an adult comes from the
prosecutrix, in the decision of this Court in Selemani Makomba v. R, Criminal Appeal No. 94 of 1999
(unreported). We have also found no iota
of evidence to indicate that PW3 was an accomplice and if so an accomplice of
whom if not the appellants themselves?
Lastly, the alleged confusions in the names of some of the appellants
were non consequential. After all what
is in a name? The witnesses knew them
and mentioned their popular names and were arrested immediately.
In the case of Waziri Amani v. R. (1980) TLR 250, this Court said:
“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 the surrounding circumstances of the
crime being tried. We would, for
example, expect to find on record questions as the following posed and resolved
by 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 day 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).
Of course
it will be instructive to add that as this Court observed in Alex Kapinga and Three Others v. R.,
Criminal Appeal No. 252 of 2005 (unreported), the guidelines set out in Waziri Amani’s case were not meant to
be exhaustive.
In fine, we
say that the entire case depended on the credibility and quality of visual
identification evidence of the four prosecution witnesses. The courts below believed them. We agree that the conditions for a correct
identification as clearly set out in the case of Waziri Amani were met. It
is, therefore, not given to us now to substitute our own view of the matter
unless it can be demonstrated that the concurrent findings of those courts were
incompatible with the evidence. The
appellants and Mr. Feleshi have failed to do so. On our own evaluation we have failed to find
out if that was the case. Once PW1, PW2,
PW3 and PW4 were believed and the issue of mistaken identity ruled out, we
confidently discount any thought of the appellants being wrongly
convicted. Their convictions were richly
deserved.
All said
and done we dismiss this appeal in its entirety.
DATED at MWANZA this 16th day
of March, 2007.
D. Z. LUBUVA
JUSTICE
OF APPEAL
J. A. MROSO
JUSTICE
OF APPEAL
E.M.K. RUTAKANGWA
JUSTICE
OF APPEAL
I certify that this is a true copy of
the original.
(S. M. RUMANYIKA)
DEPUTY
REGISTRAR
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