IN THE COURT OF APPEAL OF
AT ARUSHA
(CORAM: LUBUVA, J.A., RUTAKANGWA, J.A., And
KIMARO, J.A.)
CRIMINAL
APPEAL NO. 69 OF 2006
JIMMY ZACHARIA ………..………..…………………….
APPELLANT
VERSUS
THE REPUBLIC
…….…………………………………… RESPONDENT
(Appeal from
the conviction of the High
Court of
Tanzania at Arusha)
(Msoffe,
J.)
dated the 29th
day of August, 2003
in
HC
Criminal Appeal No. 45 of 2003
--------------
JUDGMENT
OF THE COURT
29 September & 4
October 2006
KIMARO, J.A.:
The
appellant was jointly charged with Tumaini Joseph (1st Accused),
Michael Memuruti (2nd Accused), John Andrea (45h Accused), Appeal
Afrael Nnko (5th Accused) and MT 72432 Pr. Jovin Fred (6th
Accused) with the offence of armed robbery contrary to sections 285 and 286 of
the Penal Code, Cap 16 of the laws. The
appellant was the 3rd Accused.
The charge
against Appellant Afrael Nnko (5th Accused) was withdrawn under
section 98 (a) of the Criminal Procedure Act, 1985 and he was discharged. The appellant, Tumaini Joseph (1st
Accused) and Michael Memuruti (2nd Accused) were convicted as
charged and sentenced to thirty years term of imprisonment. The rest of the accused were acquitted.
The
appellant was aggrieved and he appealed to the High Court. Tumaini Joseph and Michael Memuruti took the
same position. Their appeals, numbers 47
of 2002, 40 of 2002 and 45 of 2003 were consolidated and heard together. The appeal by Tumaini Joseph and Michael
Memuruti was allowed, but the one of the appellant was dismissed. Still aggrieved, the appellant filed this
appeal.
The facts
of the case can be stated, briefly, as follows:-
On
4/09/2000, at 6.30 p.m. Naftali Mkunda (PW4) was returning to Arusha from
Mererani after closing his business on that day. He was driving his own motor vehicle, a landrover
109 with Registration number MSG 185. He
was with Mwenda Naftali (PW5) his son.
On his way he picked Asia Mohamed (PW2) who was also going to Arusha and
other six young men who requested a ride from PW4. PW2, PW4 and PW5 sat in the front cabin and
the young men sat at the back of the motor vehicle.
PW4 stopped
the motor vehicle as requested by the young men at Kilimani in Tengeru area, to
allow for the young men to disembark from the motor vehicle. It was at this time one of the young men followed
PW4 and shot him at his right thumb. PW4
dropped from the motor vehicle. The
young man who shot PW4 demanded money from PW4.
PW4 told the young man who shot him that the money was in the motor
vehicle. The other young men who heard
PW4 telling the appellant where the money was, rushed into the cabin and took a
jacket which was left there by PW5 and then abducted Asia Mohamed – PW2. PW4 claimed that he was in a position to
identify the appellant because he was the one who shot him and he remained behind
with him for about half an hour after the other three young men had abducted
PW2. He further claimed to have
identified the appellant in an identification parade which was arranged by
Frederick Mrope. PW3, the Officer
Commanding Station (OCS) at Usa
River
PW2 who was
also at the scene of crime said he had T.Shs. 250,000/=. The money was kept in her apron which had a
pocket. After PW4 was shot, the bandits
followed her and ordered her to descend from the motor vehicle and lie on the
ground. One of the bandits cut the
pocket of PW2’s apron and took all the money.
Later, she was ordered by the six bandits to follow them and she did so. She was rescued when she raised an alarm
after a distance from the scene of crime and villagers came to her assistance.
The other
witness who was at the scene of crime was PW5, the son of PW4. This witness testified that during the
incident, he was hit by a stick on his chest and he ran to hide in a “shamba”
to save his life.
In his
defence the appellant protested his innocence.
He denied either being at the scene of crime, or being involved in the
identification parade. He gave the
defence of alibi that he was at the house of his girl friend at the time when
the offence was alleged to have been committed.
The appellant called his girl friend to testify for him. His girl friend, Beatrice Lucas Koteroi (DW3)
corroborated the defence of the appellant that the appellant was at her house
when the offence was alleged to have been committed and he never left her house
after that time on that day.
The trial
magistrate convicted the appellant on the basis of the evidence of the
identification by PW4. The trial court
was satisfied that the identification of the appellant by PW4 left no
doubts. The trial court also relied on a
caution statement (exhibit P1) which was made by Tumaini Joseph (1st
Accused), that incriminated the appellant with the commission of the offence.
As already
stated, the appellant’s appeal was dismissed by the High Court. The High Court, Msoffe J. (as he then was)
upheld the finding of the trial court that the appellant was properly
identified at the scene of crime and at the identification parade.
Before us
the appellant appeared in person. In his
memorandum of appeal filed on 07/09/2006, the appellant raised five
grounds. At the hearing of the appeal,
with leave of the Court, the appellant
added two, making the total grounds of appeal seven. Essentially, the seven grounds of appeal are
centred on one main complaint namely the evidence on the identification of the
appellant was not water tight.
Mrs. Neema,
learned State Attorney represented the respondent Republic. On her part, she declined to support the
conviction. In supporting the appeal the
learned State Attorney supported wholly the complaint by the appellant on his
identification. She argued that there
was apparent contradiction in the evidence of PW2, PW4 and PW5 on the
identification of the appellant at the scene of crime.
Starting
with the evidence of PW4 and PW5 the learned State Attorney said the
identification of the appellant by PW4 was doubtful. This is because PW5 who was with PW4 said the
incident occurred at 9.00 p.m. when it was dark and he was not able to identify
any of the bandits. However, on the other
hand PW4 said he was able to identify the appellant because he was the one who
shot him, and the appellant remained with PW4 at the scene of crime for about
half an hour before the appellant decided to leave PW4. She also observed that PW4 did not say what enabled him to identify
the appellant. She was of the views
that, taking into consideration the time when the offence was committed it was
vital for PW4 to disclose what enabled him to identify the appellant at the
scene of crime. The learned State
Attorney argued further that since the identification of the appellant at the
scene of crime was unsatisfactory it follows that the identification parade was
of no evidential value.
The other
contradiction pointed out by Mrs. Joseph was with regard to the evidence of PW2
and PW4. She said the testimony of PW2
was that after PW4 was shot, PW4 ran into the nearby “shamba” and hid
himself. PW2 was then abducted by all
the six bandits who committed the robbery meaning that no one remained at the
scene of crime. She argued that this
contradiction created doubts in the evidence of PW4 who said he (PW4) saw the
appellant.
She ended
by saying that the identification of the appellant in this case had a problem
and it could not have been relied upon to support the conviction of the
appellant. She supported the appellant
that his appeal should be allowed, the conviction and sentence be quashed and
set aside.
This is a
second appeal which originated from the District Court of Arusha. The practice is that in a second appeal, the
Court rarely interferes with the concurrent findings of fact by the courts
below. It is only when there are
misdirections or non-directions on the evidence by the first appellate court,
that the Court can interfere. There are
several decisions of this Court which support this proposition. Among them are the cases of Director of Public Prosecutions v. Jaffari
Mfaume Kawawa (1981) TLR 149 and Goodluck
Kyando v. R CAT Criminal Appeal No. 118 of 2003 (Mbeya) (unreported).
The trial
court accepted the evidence of PW3 and PW4 that the appellant was properly
identified. The High Court upheld the
finding of the District Court. In order
to reject the finding of fact by the trial court, there must be strong and
compelling reasons to do so.
In this
case, the main question is whether there are strong and compelling reasons for
interfering with the concurrent findings of facts by the courts below. We are of the considered view that this is a
fit case for interfering with the finding and conclusion of the courts below.
The crucial
question in this appeal is whether the appellant was properly identified.
We start
with the charge sheet. It shows that the
offence was committed at 20.00 hours which is 8.00 p.m. on 4/09/2000. There is undisputed evidence of PW5 that it
was dark. There are numerous decisions
by the Court that, where an offence is committed at night, the issue of
identification is very crucial. The
court should not convict an accused person on visual identification evidence
unless all possibilities of mistaken identity are eliminated and the court is
fully satisfied that the evidence before it is absolutely water tight. The case of Walter Dominic alias Omundi and Another v. R CAT Criminal Appeal
No. 14 of 2005 (Mbeya) (unreported) cited by the appellant is one among many
others. The same principle was
underscored by this Court in Waziri
Amani v. R [1980] TLR 250, Rajabu
Khalifa Katumbo and Three Others v. R [1994] TLR 129 and Eva Salingo and Two Others v. R [1995]
TLR 220.
In the instant
case it was only PW4 who said he identified the appellant at the scene of
crime. His evidence however, leaves a
lot to be desired. PW5 was also at the
scene of crime when the offence was committed.
As already pointed out, his testimony was that it was dark. PW4 did not disclose to the trial court what
enabled him to identify the appellant at the scene of crime. All that he told the trial court was as
follows:-
I
could identify only one person among the persons whom I carried in my motor
vehicle on that evening and dropped them at Relini area. The person whom I identified was the third
accused i.e. Gimmy Zakaria. I clearly
identified the 3rd Accused because he was the one with whom I
remained at the scene of crime while being questioned by him and yet he was the
one who shot me with the gun.
From
the evidence of PW4 above, the question which arises is how was he able to
identify the appellant, because PW4 has not said what assisted him to identify
the appellant. It is common knowledge
that when the offence is committed during the night light is the primary factor
which assists in the identification of a person. The light could come from any source. What matters is that it should be strong
enough to enable the identifying witness to see and identify the person or
accused properly. Other factors, like
the long stay of the appellant mentioned by PW4 are secondary. In our considered view, the failure by PW4 to
disclose to the trial court the source of lights which enabled him to identify
the appellant was a serious omission which rendered his evidence suspicious and
doubtful.
The
suspicion is enhanced by the contradiction in the evidence of PW2 and PW4. Whereas PW4 said he remained with the
appellant, while the remaining three bandits left with PW2 whom the bandits
abducted, the version of the evidence of PW2 is different. From her evidence she seemed to suggest that
it is six bandits who abducted her and no one remained at the scene of crime. Such contradiction raises doubts in the
credibility of PW4.
This is a
criminal case. The burden was on the
prosecution to prove beyond all reasonable doubt that the appellant was
properly identified. In this case PW4
did not at all tell the trial court how he was able to identify the
appellant. It was of utmost importance
for PW4 to disclose to the court how or what assisted him in the identification
of the appellant. It was not sufficient
to mention only that the appellant stayed with PW4 for half an hour. Even if the appellant had stayed with him longer,
still that would not make the evidence of PW4 better unless he had disclosed to
the court how he was able to identify the appellant. In this respect, and in view of the
deficiencies in the evidence of PW4, the Court cannot be fully satisfied that PW4
properly identified the appellant.
In the
circumstances, we are satisfied that as correctly submitted by the learned
State Attorney, the identification of the appellant was not proved to the
required standard in a criminal charge.
The evidence on this aspect was not water tight. With respect, we think had the learned judge
on first appeal addressed the unsatisfactory aspect of the evidence of PW4, he
would have come to a different conclusion.
Very likely he would not have dismissed the appeal.
In the
event, and for the reasons stated, we allow the appeal, quash the conviction
and set aside the sentence. The
appellant is to be released forthwith unless lawfully held.
DATED at ARUSHA this 4th day
of October, 2006.
D. Z. LUBUVA
JUSTICE
OF APPEAL
E.M.K. RUTAKANGWA
JUSTICE
OF APPEAL
N. P. KIMARO
JUSTICE
OF APPEAL
I certify that this is a true copy of
the original.
(S. M. RUMANYIKA)
DEPUTY
REGISTRAR
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