IN THE COURT OF APPEAL OF
AT
MWANZA
(CORAM: LUBUVA, J.A., MROSO, J.A., And
RUTAKANGWA, J.A.)
CRIMINAL
APPEAL NO. 63 OF 2005
1. MASELO MWITA @
MASEKE
2. MARWA CHACHA @ CHARLES ...…….….…... APPELLANTS
VERSUS
THE
REPUBLIC ….……..……………..………….…. RESPONDENT
(Appeal
from the Judgment of the High
Court
of Tanzania at Tabora)
(Masanche,
J.)
dated
the 10th day of December, 2003
in
HC
Criminal Appeal No. 29 and 30 of 2003
-------------
JUDGMENT
OF THE COURT
7 & 16 March
2007
RUTAKANGWA,
J.A.:
The
appellants and one Stephen Waitara were charged with and tried for the offence
of armed robbery c/ss 285 and 286 of the Penal Code before the District Court
of Mwanza at Mwanza. The appellants were
convicted as charged and sentenced to thirty (30) years imprisonment. They unsuccessfully appealed to the High
Court at Mwanza against the entire decision of the trial District Court. Being aggrieved by the High Court decision
they have lodged this appeal.
Each
appellant filed his own memorandum of appeal.
Their main grounds of complaint against the decision of the High Court, are basically three. First,
that they were wrongly convicted on the basis of very weak prosecution visual
identification evidence. Second, the doctrine of recent
possession was wrongly invoked in finding them guilty as charged. Third,
the 1st appellant’s
caution statement had no evidential value as it was extracted from him through
torture. They accordingly urged us to
allow this appeal, quash their conviction and set aside the sentence of
imprisonment imposed on them.
For the
respondent Republic in this appeal, is Mr. Kiria, learned State Attorney. Mr. Kiria supported the appeal for almost similar
reasons. He emphasized that the evidence
of the victim of the alleged robbery one John Daniel, who testified as PW1,
ought not to have been given much weight by the courts below as he was too
inconsistent. He further argued that the
weighing scale upon which the doctrine of recent possession was based was never
admitted in evidence for PW1 to identify as the one robbed from him. He, too, pressed us to allow the appeal in
its entirety.
The
prosecution case against the appellants was built on the evidence of four
witnesses. These were John Daniel (PW1),
No. E.1242 D/C Sanya (PW2), No. D.3455 D/Corporal Kaled (PW3) and No. B.7285
S/Sgt. Reuben (PW4).
PW1 told
the trial court that on 4th January, 2001 at about 01.30 hours, as
he was asleep at his home he was suddenly awakened by the smashing of the door
of his shop with a big stone. Then many
people entered his house. They told him
to keep quiet if he wanted to live longer.
Thereafter they demanded money from him.
PW1 told the trial court that the bandits then “took cash 100,000/= one
Nora radio four band, two weighing scales and two weighing stones and two
cartons of soap.” Also stolen were
imperial and family soap, sweet heart lotion, six packets of salt, two packets
of sportsman and embassy cigarettes, two pairs of shoes, weaving thread, nylon
bags and 20 litres of cooking oil. They
then left. He was very specific that the
robbers did not assault him.
PW1 claimed
that he only managed to identify the appellants out of the whole lot. His evidence is silent on their approximate
number. After the bandits’ departure, he
reported the incident at Nyakato Police Post and investigations started.
After some
time an unidentified man told PW1 that some people have approached him looking
for a buyer of a weighing scale. The
police were alerted and a trap laid.
According to PW1 the trap was successful. The appellants were caught red-handed trying
to sell the weighing scale. They then
mentioned Stephen Waitara as their accomplice.
The appellants were arrested and charged accordingly.
Another
piece of incriminating evidence came from PW4.
This witness told the trial court that following the arrest of the 1st
appellant on 14/01/2001, he recorded his caution statement on 15/01/2001 in
which he voluntarily confessed to have committed the robbery together with the
2nd appellant. The 1st
appellant told the trial court that it was an involuntary one, because he was
forced to sign it after being tortured.
The trial magistrate held that it was made voluntarily and admitted it
in evidence as Exhibit P3.
The
appellants gave sworn evidence in which they denied committing the
offence. The 2nd appellant
claimed that he was picked up by the police on 13/1/2001 together with 9 other
people for being vagabonds. The 1st
appellant claimed that he was arrested on 9/11/2001 as a vagabond, sent to
central police station and formally charged on 18/1/2001 with robbery. He insisted that he never signed Exhibit P3
voluntarily. He was tortured and forced
to sign it, he claimed. To prove that he
was tortured, he tendered in evidence a PF3 issued by Central Police Mwanza
dated 18/1/2001, as Exhibit D1.
In
convicting the appellants, the learned trial Senior Resident Magistrate found
PW1 to be a credible and reliable witness who recognized the appellants at the
scene of crime. He relied on the
assertion of PW1 that there was light in the room. He went on to hold thus:-
“There
is another corroborative evidence from PW3 D.3455 who searched the house of 1st
accused and found the weighing machine, plus a panga (machette) which had blood
stains. PW1 had testified that the
accused carried a panga”.
Exhibit P3 was taken to be another piece of
corroborative evidence. In the light of
this evidence, he brushed aside the evidence of the appellants which he described
as:-
“…
mere kicks of a dying horse so to say”.
The learned
judge on appeal reasoned in similar vein.
In a judgment which was like a summary dismissal order, he dismissed the
appellants’ appeal.
The issue
of identification of the appellants has taxed our minds greatly in this
appeal. This is because, it is now
settled law that in a case entirely depending on the evidence of a single
identifying witness such evidence must be absolutely water tight to justify a
conviction. See, for instance, Yohanis Msigwa v. R [1990] TLR 148 and Masudi Amlima v. R. [1989] TLR 25. The guidelines to be followed by the courts
were stated with sufficient lucidity by the court in Waziri Amani v. R [1980] TLR 250. The same principle applies
even to cases of recognition evidence as in this case. Even recognizing witnesses often make
mistakes or deliberately lie. Was the
evidence of PW1 absolutely water tight?
We think it was not for the following main reasons.
First, we
really doubt if there was any light in the room of PW1, otherwise he would not
have failed to say so in his evidence in chief.
Assuming for the sake of it that the prosecutor never put that question
to him, we are still convinced that the evidence on light was too vague. PW1 merely claimed that there was a lamp in
the room. He never went beyond that to
explain what type of lamp it was, and the intensity of the light, as the
appellants supported by Mr. Kiria, rightly argued.
Different
lamps produce light of different intensities.
Light from a wick lamp is incomparable to that from a lantern, or a
pressure lamp. The evidence of PW1 does
not show the size of the room which, going by his evidence, was a
bedroom-cum-shop. It is possible that it
was reasonably big or even small. Therefore there was an overriding need to
describe the intensity of the light which would have enabled PW1 to correctly
recognize only the two appellants out of the many invaders. This was not done. It raises a lot of reasonable doubts on the
bare assertion of PW1 that he recognized the appellants.
Second, the feeling that PW1 might not
have seen and recognized the appellants is reinforced by the fact that he never
mentioned their names to the police when he reported the robbery that very
night. Neither himself nor the other
prosecution witnesses testified to that effect.
That is why it took nearly two weeks to arrest the appellants and even
then not on the basis of PW1’s report.
These two
basic shortcomings render the identification evidence of PW1 highly suspicious
and unreliable. It is unfortunate that
both the trial court and the High Court on appeal never addressed themselves to
these shortcomings. We are convinced
that had they done so they would not have so easily taken the evidence of PW1
at its face value.
Was there
any corroboration of PW1’s evidence? The
two courts below found such evidence in Exhibit P3 and the allegations that the
appellants were found in possession of a blood stained panga and a weighing
scale.
Our own
objective evaluation of the entire evidence on record has led us to two
inescapable conclusions. First, the courts below misapprehended
the evidence. It was nowhere alleged
that anybody was injured in the course of the robbery. As already indicated in this judgement PW1
unequivocally told the trial court that the robbers never assaulted him. So the panga with stains of blood on it,
which blood was not even proved to be human blood, was irrelevant. Second,
the evidence regarding the recovery of a weighing scale was contrived. We shall offer a brief explanation.
The
evidence of PW1 on how the weighing scale was recovered fundamentally conflicts
with that of PW2 and PW3. PW2 testified
that they first arrested the 2nd appellant through an informer. Thereafter he led them to the home of the 1st
appellant who was also arrested. The two
together took the investigators to where the weighing scale was. PW2 said:
“At
that place they asked to be given their weighing scale. They were given the weighing scale and we sent
them to police station”.
However, according to PW3 the weighing scale was
recovered from the home of the 2nd appellant before they were led by
him to the home of the 1st appellant.
Again, the
two courts below never considered at all these fundamentally discrediting
contradictions. Had they done so they
would not have readily taken PW1, PW2 and PW3 as witnesses of truth. As it is now obvious that the appellants were
not in fact found in possession of the weighing scale the doctrine of recent
possession was wrongly invoked to implicate the appellants with the robbery.
The caution
statement (Exhibit P3) was retracted. It
accordingly needed corroboration in the peculiar circumstances of this
case. Furthermore, we are convinced that
the courts below erred in rejecting the evidence of the 1st
appellant to the effect that he was tortured and forced to sign it.
If the
evidence of PW2 and PW3 is to be taken for what it is worth, the 1st
appellant was arrested without any struggle on 14/01/2001. There is no evidence on record to suggest
that he had any bodily injuries on that day.
However, the police themselves sent the 1st appellant, on
18/05/2001, to Sekou Toure Government Hospital Mwanza for medical
examination. The PF3 (Exhibit D1) reads:
“Mtajwa hapo juu amepigwa, tumemtuma kwako ili umpatie
matibabu na kisha tufahamishe kiasi cha majeraha aliyoyapata”.
The 1st appellant was examined and found to
have bruises and major wounds on the knees, ankle and back. They were classified as harm caused by a
blunt weapon.
The
question is: who caused these bodily
injuries on the 1st appellant?
The appellant claimed that the police were responsible in their bid to
extract a forced confession from him.
Since the 1st appellant was in police custody from 14th
January 2001, going by their own reckoning, his claims cannot be justifiably
called “the kicks of a dying horse”, given the fact that the PF.3, Exhibit D1
is dated 15/01/2001. As this Court reiterated
in Dotto Ngassa v. R., Criminal
Appeal No. 6 of 2002, where a retracted confession is established to have been
made immediately after the suspect has been tortured, the courts should be very
cautious in admitting such statements in evidence even under s. 29 of the
Evidence Act, 1967. The suspect is not a
free agent by then. We accordingly doubt
the voluntariness of Exhibit P3. It
ought to have been excluded.
For the
foregoing reasons, we agree with the appellants and Mr. Kiria for the
respondent Republic, that the prosecution failed to prove its case against the appellants. The appeal is accordingly allowed in its
entirety. The conviction of the
appellants and the sentence imposed on them are hereby quashed and set
aside. The appellants are to be released
forthwith from prison unless they are otherwise lawfully detained.
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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