OLAFU WIKECHI v REPUBLIC 1995 TLR 184 (CA)

 

OLAFU WIKECHI v REPUBLIC 1995 TLR 184 (CA)

Court Court of Appeal - Mbeya

Judge Ramadhani JJA, Mfalila JJA and Lubuva JJA

Criminal Appeal No 178 of 1994 F

June 16 1995

(From the conviction and sentence of the High Court of Tanzania at Njombe,

Mwalusanya, J) G

Flynote

Evidence - Identification of accused person - Identification done in the dark of night -

Whether sufficient to found a conviction.

-Headnote

H The appellant was convicted of murder and sentenced to death. The Trial Judge

founded his conviction on visual identification on a dark night. On appeal the

appellant argued that the visual identification on the dark night should not have been

relied upon to base a conviction.

Held: We are not convinced that the witness correctly identified the appellant; as

such the case against the appellant was not proved beyond reasonable doubt as

required by law. I

1995 TLR p185

MFALILA JA

Case Infomation

Appeal allowed. A

No Case referred to:

Mwangole for the appellant.

[zJDz]Judgment

Mfalila, JA: delivered the following considered judgment of the Court: B

The appellant Olafu Wikechi was convicted of murder by the High Court sitting at

Njombe (Mwalusahya, J) and sentenced to death. His conviction was based on the

evidence of a single identifying witness Martina Makasi (PW1), the wife of the

deceased. C

The appellant's identification by the deceased's wife was not without difficulty as will

be shown shortly. On the day in question, the appellant had in the morning visited

the deceased's homestead. He had left after taking lunch prepared by PW1, one of the

deceased's five wives. PW1 left for the shamba soon after D preparing lunch for the

men. She returned home at 4.00 pm and found her husband's guest already gone. At

about 5.00 pm the deceased asked her to take some liquor known as 'ulanzi' and a

wick lamp to their old house which they had abandoned, telling her that he would be

meeting his guest there. She complied with this instruction. At about 10.00 pm the

deceased returned and told her to E accompany him to the old house and meet his

guest Mr Wikechi the appellant. She went with him to the old house where on arrival

he told her to remain outside. While she was outside, she could hear voices of people

talking inside the hut. Then suddenly she heard a bang from inside the hut as if

something was falling, F then she heard the sound of a door being closed and locked

from the outside. She saw two people who were locking the door and recognised one

of them to be the present appellant. The two people ran away, but she was emphatic

that although it was a dark night she was still able to identify the appellant

particularly by the white G rubber shoes he was wearing. She raised an alarm and

awakened her fellow wives. When they entered the hut they found their husband

dead. The post mortem examination report indicated that the cause of death was head

injury leading to brain damage and haemorrhagic shock. The appellant was arrested

two weeks later in Mawande Village and charged with the murder of the deceased. H

In his defence at the trial, the appellant denied causing the death of the deceased

whom he described as a long time dear friend. He said that he had no cause or reason

to kill such a friend. He narrated his movements on the day in question saying that

after leaving I

1995 TLR p186

MFALILA JA

A the deceased's house that day, he had gone to Mawande Village where his other

wife, Veronica lived, and it was there that he was arrested.

The Trial Judge accepted the identification of the appellant by PW1 which he

described as having strong probative value. He found that it had been corroborated B

by the deceased's earlier statement to her that he was going to talk with his guest at

the hut. The learned judge also found the fact that the appellant was arrested at

Mawande Village at the house of his concubine, added weight to the prosecution case.

He therefore found that the case against the appellant had been proved beyond

reasonable doubt and convicted him as charged. C

In this appeal, Mr Mwangele, learned counsel who advocated for the appellant,

attacked these findings. In his view, the learned judge was wrong to rely on the visual

identification by PW1 when conditions were so unfavourable and that he erred in

finding that this identification had been corroborated. D

As we have already indicated, the identification of the appellant by PW1 is not

without difficulty. She herself conceded that it was a dark night. If so, how then did

she identify one of the attackers to be the appellant? The answer is supplied by her

own evidence that she identified one of the two to be the appellant particularly E

when she saw his white rubber shoes. Is this mode of identification really reliable on

a dark night? She explained later when cross-examined that there was moonlight. But

this answer complicated her evidence even further for she made it F clear that her

evidence could not be relied upon if she could change it so easily. In one minute

saying it was a dark night, in another saying there was moonlight.

The learned judge found corroboration of her evidence in two factors. First, that the

deceased had told her that he was going to talk to his guest, Mr Wikechi, the

appellant. The question is how truthful was PW1 in this. The trial court who saw G

her believed her and found as a fact that the deceased had made the statement. But,

this finding was made without evaluating her veracity particularly in view of the

contradictions in other aspects of her evidence as we have pointed out. We are

therefore doubtful about her truthfulness. Secondly, that the appellant was arrested

H in Mawande Village at the home of his concubine. We have not been able to

appreciate the significance of this. Since there is no evidence to suggest that the

appellant had gone to Mawande Village to escape arrest, we see nothing wrong or

strange with the appellant deciding to proceed to the home of his concubine. I

1995 TLR p187

MFALILA JA

There is another matter which exercised our minds but only because we do not A

share the trial court's conviction on the veracity of PW1. We thought it was very

strange that the deceased should have asked his wife to accompany him to the hut to

meet his guest the appellant only to ask her to remain outside the hut! And even if it

is true that she accompanied the deceased to the hut at 10.00 pm, is it B necessarily

true that one of the two men who came running out of the hut was the appellant,

since she never had the chance of seeing them enter the hut? We also note that all the

time the deceased was talking of 'his guest' not 'guests'.

For these reasons, we are not convinced as the trial court was that PW1 correctly C

identified the appellant and that this identification was corroborated by independent

credible evidence. In our view, the charge against the appellant was not proved

beyond reasonable doubt as required by law and we accordingly allow the appeal,

quash his conviction for murder and set aside the sentence of death imposed on him.

We order him immediately released unless he is otherwise D lawfully held.

1995 TLR p187

F