Doriki Kagusa v. Republic, Cr app no 174 of 2004 (armed robbery)

IN THE COURT OF APPEAL OF TANZANIA

AT MWANZA

(CORAM:   LUBUVA, J.A., MROSO, J.A., And RUTAKANGWA, J.A.)

CRIMINAL APPEAL NO. 174 OF 2004

DORIKI KAGUSA …..…………………..….… APPELLANT

VERSUS

THE REPUBLIC ….……..……………….…. RESPONDENT

(Appeal from the Judgment of the High

Court of Tanzania at Tabora)

(Mwita, J.)

dated the 10^th day of August, 2004

in

Criminal Appeal No. 79 of 2002

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JUDGMENT OF THE COURT

2 & 16 March 2007

RUTAKANGWA, J.A.:

        The appellant’s appeal against his conviction for armed robbery c/ss 285 and 286 of the Penal Code by the Tabora District Court and the sentence of thirty years imprisonment, was dismissed by the High Court (Mwita, J.) sitting at Tabora.  Aggrieved, he has preferred this appeal.

        At the trial the prosecution case against the appellant, who was jointly charged with one Ally s/o Ramadhani @ Said, was as follows.  The victim of the undisputed robbery was one Laurent s/o Revocatus (PW1) who resides at Bachu area within the Municipality of Tabora.  The appellant, prior to his arrest, resided at Bachu area too, not far from PW1 Laurent Revocatus’s residence. 

        On 14^th December, 2001, at about 2.30 hours a gang of about five people invaded the residence of the said Laurent, who by then was sleeping in his bedroom.  When the gangsters arrived, they first broke an outside security electric tube light and then fired a gun.  At that hour one Victoria Dominic (PW2) and her friend, who were sitting for their national form IV examinations, were in the living room studying.  Then the invaders hit the door of one of the rooms in the house in which one Dominic (PW3) was running a shop, with a stone.  PW2 Victoria raised an alarm but to no avail.  The invaders got to them and began to beat them up urging them to keep quiet.

        The invaders specifically requested PW3 Victoria to tell them the whereabouts of her father.  Victoria was the daughter of PW3 Dominic.  According to Victoria the sitting room was well lit by electric light as they were reading.  She then led them to her father’s bedroom.  The invaders broke open the room’s door.  Dominic, too, had been asleep therein before they were invaded.  The room was dark.  The invaders using their own torch, spotted Dominic, beat him with clubs while demanding to be given TShs. 20,000,000/=.  After severely beating Dominic, the invaders, who were two, left the room empty handed.  As it was dark in the room, Dominic failed to identify the invaders.

        After leaving Dominic’s room, the invaders broke into the bed room of Laurent.  By then he had switched on the electric lights in the room.  The bandits who were armed with pangas and clubs, physically assaulted him demanding to be given TShs. 20,000,000/=.  They only succeeded to get away with TShs. 319,000/= and other goods all valued at TShs. 440,000/=.

        While the robbers were giving Laurent a rough time, Victoria managed to run to a neighbouring house from where she telephoned the police.  The response of the police was fast.  Five policemen including No. E.3769 D/Sgt. Daniel were quickly dispatched to the scene of the crime.  By the time they arrived, the robbers had already vanished.  However, while Laurent was being interrogated, a gun shot was heard outside.  More policemen arrived.  The area was virtually cordoned off.  With the help of the light coming from the police vehicle’s head lamps the police saw a group of people running into the nearby shrubs.  They followed.   In the shrubs there was a hole.  A person was inside the hole and was forced to come out.  He was Ally Ramadhani.  Ally Ramadhani mentioned the appellant as one of the people he had participated with in the commission of the robbery.  As Laurent had already mentioned the appellant as one of the bandits, he was arrested the very night.  At an identification parade conducted on 16/11/2001, both Laurent and Victoria identified the appellant and Ally.   The two were then charged accordingly on 19/11/2001.

        In his defence the appellant denied committing the offence.  He stated that at the time the robbery was being committed he was asleep at his home with his sister.  However, they were awakened by the alarms raised and as such they joined their neighbours in response and went to the scene of the crime where he found some policemen.  He joined in the search for the robbers.  But as no suspect was seen they dispersed.  He returned home to sleep only to be arrested shortly later by the police.  While conceding that PW1 Laurent was not his enemy, he claimed that PW1 fabricated the case against him.

        At the trial PW1 Laurent and PW2 Victoria unequivocally testified that they knew the appellant very well before the incident.  They testified that they recognised him among the robbers because the rooms had sufficient light to enable them make an unmistaken identification of the appellant.  They had ample time with him.  In view of this evidence, the learned trial Principal District Magistrate rejected the defence of the appellant.  He was satisfied that the appellant had been sufficiently recognized by both PW1 Laurent and PW2 Victoria as one of the robbers.  He accordingly convicted him.  In dismissing the appeal, the learned judge said:-

“In the instant case the appellant was not a stranger to PW1 and PW2.  There was electric light at the scene.  PW1 and PW2 had ample time to observe the appellant.  PW1 and PW2 identified the appellant at the identification parade conducted two days since the incident took place.  Hence chances of mistaken identification were very minimal”.

For these reasons he, too, considered, objectively, the defence of alibi and rejected it.

        Aggrieved by the decision of the High Court, the appellant has filed this appeal.

        The main grievances of the appellant before us are as follows.  First, he was wrongly convicted as charged because the identification evidence against him was very weak.  Second, the judge erred in law in acting on the identification evidence of PW1 and PW2 because they did not give his description because, according to him, settled law is to the effect that if a crime victim has identified a suspect who is known to him it is necessary for him or her to give that person’s (suspect’s) detailed description when making a report to the police.  Third, the identification parade conducted after the robbery was unnecessary since the identifying witnesses had not given a prior description of the suspects.  Four, the identification evidence of PW1 and PW2 was highly questionable because the conditions at the scene of the crime were not conducive for a correct identification.  Five, although he had not complied with the mandatory provisions of s. 194 (4) of the Criminal Procedure Act, 1985, on prior notice of the defence of alibi, the courts below erred in wrongly rejecting his defence of alibi.

        Responding to these grievances, Mr. Rweyongeza, learned State Attorney, for the respondent Republic urged us to dismiss the appeal.  To him the appeal lacks merit because the appellant was adequately identified by PW1 and PW2 at the scene of the crime contrary to the assertions by the appellant.  Mr. Rweyongeza was of the firm view that going by the truthful evidence of PW1 and PW2, the circumstances at the scene of the crime were favourable for a very positive identification of the appellant, as the rooms were well lit, on top of the fact that the appellant not only stayed with the witnesses for a long time but he was well known to them as their neighbour.  That is why there was no need for the witnesses to give his description to anybody for this requirement is essential for a witness who had encountered a stranger.  For the same reason, he pressed us to dismiss the third ground of appeal.  To bolster up his arguments he referred the Court to the cases of:  Raymond Francis v. R [1994] TLR 100 and Hassan Kanenyera v. R [1992] TLR 100.  On the issue of alibi, Mr. Rweyongeza submitted that although under the law the courts below were entitled not to take into consideration the appellant’s defence of alibi, they nevertheless considered it and rejected it for good reasons.

        Admittedly, this is a weak appeal.  We shall start by agreeing with the appellant that the prosecution witnesses did not give any physical description of the appellant to anybody before he was arrested on the same night the robbery was committed.  But, as aptly pointed out by Mr. Rweyongeza, this was unnecessary.  Contrary to the wishes of the appellant, it is settled law that a witness on identification need not give any prior detailed description of the suspect who is known prior to the incident.    It suffices if he or she mentions the name of the known or familiar suspect:  see the decision of this Court in the case of Ezekiel Noel v. R, Criminal Appeal No. 25 of 2002 (unreported).

        We also agree with the appellant that the identification parade held was absolutely unnecessary, but for a different reason.  As correctly argued by Mr. Rweyongeza, where the identifying witness or witnesses knew the suspect or suspects before the incident it is superfluous and a waste of resources to conduct such a parade.  We have asked ourselves this question:  the identification parade is held to achieve what purpose when the suspect is well known to the identifying witness?  Our answer has already been indirectly given above.  It is unnecessary and a waste of time.

        It is trite law that in a case depending for its determination essentially on identification, be it of a single witness or more than one witness, such evidence must be water-tight, even if it is evidence of recognition.  And where such evidence is of a single witness made under unfavourable conditions, such evidence, as a matter of practice only, requires corroboration.  This rule, however, does not rule out a conviction on the evidence of a single witness if the court is fully satisfied that the witness is telling the truth:  see, Hassan Juma Kanenyera v. R [1992] TLR 100, among many others.

        Unarguably, the case against the appellant was predicated upon the identification evidence of PW1 Laurent and PW2 Victoria.   Fortunately, the appellant was well known to the two witnesses prior to the robbery.  He never denied this.  Their evidence which was believed by the courts below to be true shows that the circumstances in the rooms were conducive to a positive recognition of the appellant.  That these witnesses recognized the appellant as one of the robbers is confirmed by the evidence on record that they named him immediately after the arrival of the police among others.  Once the trial court was fully satisfied that these two witnesses were telling the truth and there is nothing on record to prove the contrary, then it can be safely held that the appellant was properly identified.  Furthermore, the evidence of PW5 No. E.3760 D/Sgt. Daniel lends further credence to the identification evidence of PW1 and PW2.  The unchallenged evidence of PW5 is to the effect that the appellant’s co-accused was arrested hiding in a hole just close the scene of the crime.  On being arrested, he admitted to have participated in the robbery together with the appellant among others.  That Ally so confessed is confirmed by the plain fact that he did not even cross examine PW5 D/Sgt. Daniel.

        With this evidence on record, it cannot be suggested that the lower courts erred, either in law or on the facts in their decisions.  The appellant’s conviction was justified.

        In fine, we find this appeal arid of any merit and it is accordingly dismissed in its entirety.

        DATED at MWANZA this 16^th 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