IN THE COURT OF APPEAL OF
(CORAM: LUBUVA, J.A., MROSO, J.A., And
RUTAKANGWA, J.A.)
CRIMINAL
APPEAL NO. 38 OF 2005
1. RASHID ALFRED KUBOKA ]
2.
GERALD
JUMA ] ……..…
APPELLANTS
VERSUS
THE REPUBLIC ….…………....………..….…. RESPONDENT
(Appeal
from the Judgment of the High
Court
of Tanzania at Mwanza)
(Mihayo,
J.)
dated
the 24th day of May, 2004
HC
Criminal Appeal Nos. 225 & 226 of
2000
-------------
JUDGMENT
OF THE COURT
6 March 2007
MROSO, J.A.:
The two appellants who were
respectively the first and third accused persons at the trial District Court,
together with one Hamisi Mohamed @ Kalarumie who does not appear to have
appealed, were convicted for armed robbery and sentenced to a prison term of 30
years with 12 strokes of corporal punishment each by the District Court of
Geita District. Their appeals to the
High Court were dismissed and they have come to this Court on a second appeal.
Apart from
their original memoranda of appeal they sought leave of the Court to file
additional grounds of appeal at the time of the hearing of their appeals. Leave was duly granted. They did not seek to argue those grounds but
after Mr. Feleshi, learned Senior State Attorney for the respondent Republic,
had addressed the Court on the appeal, they responded briefly to Mr. Feleshi’s
arguments which had supported the judgments of the two courts below. Interestingly, the learned State Attorney who
appeared before the High Court during the first appeal did not support the
conviction of the appellants.
Although
the first appellant had a total of nine grounds of appeal and the second
appellant a total of ten grounds of appeal, all those grounds can be reduced to
five substantive grounds of appeal. First, that there was no Preliminary
hearing in the case and that the absence of it occasioned a miscarriage of
justice. Second, that there was no reliable evidence of identification. Third,
that the two r courts below erred in placing reliance on evidence that the
original second accused washed blood stained clothes at the house of the first
appellant and drew improper inference that the first appellant must have been
party to the armed robbery. Fourth, that the two courts below
wrongly rejected the second appellant’s alibi.
Fifth, that those two courts
below erred in believing the evidence of Prosecution witnesses Number 1 to 4
who allegedly were all blood relatives.
Before we discuss those grounds of appeal, we think it desirable to give
a brief background to the appeal.
During the
night of 11th July, 1999 at about 01:00 hours bandits armed with pangas, knives and rungus broke into the house of one Nicholaus s/o Kasaba of Kagera
area in Geita District. They had used a
big stone to break open the door to the house.
Nicholaus Kasaba (PW1) and his wife Jesca d/o Shima (PW2) woke up only
to find a group of gangsters in the room flashing torches. They demanded to be given money and at the
same time assaulting him on the head with a club and also cut him with a panga on the head. The wife (PW2) sustained cut wounds on the
head and face and a bruise on the leg.
The bandits then stole cash and an assortment of household goods with a
total value of Tshs. 524,900/=, according to the evidence of PW1. Thereafter they vanished with the loot.
Four people
including the two appellants were subsequently arrested in connection with the
armed robbery. No stolen property was
found with any of them but they were prosecuted and convicted on the strength
of evidence of identification by PW1, PW2 and PW3 – Daudi s/o Katoga. There was also evidence from PW4 – Moshi d/o
Rashid – that a day after the armed robbery she saw the second accused at the
trial in the home of the first appellant where he was washing blood stained
clothes. That incident suggested that
the first appellant must have been party to the armed robbery or the second
accused person at the trial would not have washed those clothes at his home.
We begin
our discussion with the complaint that PW1, PW2, PW3 and PW4 were all blood
relatives and that it was not proper for the two courts below to put reliance
on their evidence. In the first place,
we do not see any evidence in the record showing that all those four
prosecution witnesses were related by blood as claimed. The only evidence of close relationship is
that which showed that PW1 and PW2 were husband and wife but there was not a scintilla
of evidence that PW3 and PW4 were related either to themselves or to PW1 or
PW2. In the second place, even if they
were to be related by blood or otherwise, they would not thereby be incompetent
to testify at the trial. Where it is
proved that witnesses are closely related to one another it is merely advisable
that their evidence be treated with caution because of the possibility that
they might support one another even where there was no justification to do
so. But it is established law that
evidence of family members alone can sustain a conviction. See Jumu
Choroko v. R. (CAT) Criminal Appeal No. 23 of 1999 (unreported). As mentioned earlier, in this case the only
witnesses who were related were PW1 and PW2 who were the victims of the
crime. No miscarriage of justice
occurred from the mere fact that those witnesses gave evidence at the
trial. That ground of appeal has no
merit and is dismissed.
Another
ground of appeal which we also think does not have to detain us is the
complaint that the absence of a preliminary hearing caused a miscarriage of
justice. None of the appellants
explained in what way a miscarriage of justice was occasioned and as the ground
was not discussed, there is no need to make an in-depth discussion of the
complaint.
Section 192
of the Criminal Procedure Act, 1985 comes after a title “Accelerated Trial and
Disposal of Cases”. The principal aim of
that section is to provide for a procedure to facilitate speedy trials and
disposal of criminal cases and to cut down expenses which would otherwise be
incurred unnecessarily. Thus, where
certain facts in a case are not disputed by an accused person, there is no need
to call witnesses to come to court to give oral evidence of such facts. Witnesses would be called to testify on
disputed facts only. In that way fewer
witnesses would come to testify. In
effect the trial would normally take less time, fewer witnesses would be
inconvenienced and less expenses would be incurred.
It has not
been alleged that because a preliminary hearing was not conducted the trial
took much longer than it would otherwise take or that the judiciary incurred
far more expenses on witnesses than if a preliminary hearing had been
conducted. We can see no merit in this
ground of complaint. It is also
dismissed.
Part of the
reason for convicting the first appellant was that on 12th July,
1999 PW4 saw the original second accused wash blood stained clothes at the home
of the first appellant. Referring to
this aspect of the evidence of PW4 the trial court said –
“… had the 1st accused not been
involved in the crime, the second accused would not have gone at his room and
just pick a bucket when he did not know him”.
The first
appellate court on its part said of that evidence by PW4 relating the original
second accused washing alleged blood stained clothes at the home or room of the
first appellant –
“Now
for the second accused going to the appellant’s (first appellant) house to wash
blood stained clothes and the latter keeping quiet about it, and even denying
it gives support on the case for the prosecution”.
It is
obvious, therefore, that the two courts below found that the washing of alleged
blood stained clothes by the original second accused in the room of the first
appellant was part of the proof that that appellant was one of the armed
robbers.
The armed
robbery was committed at 01.00 hour on 11/7/1999. PW4 saw the second accused eight hours later
washing alleged blood stained clothes at the home of the first appellant. What is implied in that piece of evidence is
that the second accused person got the blood stains at the time PW1 and PW2
were being assaulted with a panga and
a knife. Now, if the 2nd
accused was trying to get rid of the blood stains on his clothes because they
would give him away, why would he wait for eight hours to do so? Besides, it does not necessarily follow,
assuming that the second accused was involved in the robbery, that because he
wanted to get rid of incriminating evidence at the home of the first appellant
then this first appellant was also involved in the robbery. With respect, we agree with the first
appellant that the inference which was drawn by the two courts below against
him from the washing of the blood stained clothes at his home was tenuous and
unjustified. We allow that ground of
appeal.
Finally, we
consider the most important ground of appeal that the evidence of
identification against the appellants was unreliable. The question is whether the conditions
prevailing at the time of the robbery were conducive to accurate and reliable
identification.
For both
PW1 and PW2 the only source of light to aid identification was the torchlight
from the bandits. PW1 said –
“I
identified the accused persons through their torches because when they flashed their
torches the corrugated iron I had covered up my house instead of ceiling board
reflected at them”.
And PW2 said of the light which enabled her to identify
the bandits –
“The
carpet was bluish in colour when you flashed on the carpet and the iron sheet
reflected and made the room become bright”.
What these two witnesses were trying to say was that the
floor had a blue carpet and the ceiling had corrugated iron sheets instead of
ceiling board. When the bandits flashed
their torches the light from those torches was reflected from both the bluish
carpet and the metallic ceiling sufficiently to enable them see and identify
the intruders.
Mr.
Feleshi, learned Senior State Attorney, argued that the light from the torches
which was reflected to illuminate the features of the intruders as explained by
the two witnesses was sufficient for reliable identification because of two
main reasons. First, the appellants were known to the witnesses prior to that
night. Second, the appellants spent at least 15 minutes in the room
collecting the things they stole.
With
respect, we have serious reservations arising from the evidence of
identification by PW1 and PW2. Granted
that the appellants were known to the witnesses before the night of the
incident and, therefore, it would be relatively easy to identify them than
would be the case of perfect strangers.
However, we do not think a blue carpet reflects sufficient light to aid
accurate identification. As for the
metallic ceiling, it is unlikely that the intruders would direct torchlight to
the ceiling so that the light reflected by it would reveal their identity. Commonsense would dictate that the intruders,
especially so if they were from the neighbourhood as the appellants were, would
try not to reveal their identity.
Therefore, they would not direct the torchlight in such a way as would
betray their identity. So even if they
spent fifteen or more minutes in the room, torchlight would be directed to the
objects they were searching for, not on their own faces.
The
evidence of identification is further weakened by the claim by the first
appellant that he was ill on the night of the incident and that he did not
leave his room on that night. That claim
by the first appellant was supported by PW4.
The first appellate court – Mihayo, J – dismissed that part of PW4’s
evidence by the following words –
“That
PW4 said the first appellant never left the house is conjecture as the two
never lived together”.
But, as already said, PW4 was a prosecution witness and
the Prosecutor did not seek to have, during re-examination, PW4 explain how she
knew that the first appellant never left his house during the night of the
incident. That statement by PW4 remained
unchallenged and the learned Senior State Attorney cannot challenge it at this
stage of a second appeal. As we hinted
earlier in the judgment, the respondent Republic conceded to the appellants’
appeal before the first appellate court.
It is a little curious now for the Republic to say that it supported the
conviction after all.
We think
the evidence of identification considered as a whole does not give the
assurance that it was unmistaken. We
allow the appeal and quash the conviction and set aside the sentence of thirty
years imprisonment. The appellants are
to be set free forthwith unless lawfully held for some other cause.
DATED at DAR ES SALAAM this 30th
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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