Felix Kichele & another v. Republic, Cr app no 159 of 2005 (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. 159 OF 2005

1.  FELIX  s/o KICHELE

2.  EMMANUEL s/o TIENYI @ MARWA ...….… APPELLANTS

VERSUS

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

(Appeal from the Judgment of the High

Court of Tanzania at Musoma)

(Rweyemamu, J.)

dated the 6^th day of May, 2005

in

HC Criminal Appeal Nos. 119 & 120 of 2001

-------------

JUDGMENT OF THE COURT

14 March 2007

MROSO, J.A.:

        At about 8.30 p.m. on 15^th October, 2001 one Jonas Joel (PW1) with his wife Davis (sic) Siziya (PW2) were returning to their home at Nyakato Buzuruga in Mwanza.  They were in a motor vehicle.  As soon as they entered through the gate to their home about four or five people in Police uniform surrounded his motor vehicle and informed him that he was under custody.  One of those people pointed a gun at him and the group assaulted him on various parts of his body until he became unconscious.  When he regained consciousness he realized that his pistol which was in the motor vehicle, other property and cash shillings 60,000/= (600,000/=?) were missing.  The total value of his stolen property was Tshs. 3,090,000/=.  He did not identify any one among the bandits.

        His wife (PW2) said that at first she believed the bandits were policemen and she saw them enter the house and come out with a suitcase which contained clothes.  Jewellery were also some of the things which were stolen.  She claimed she identified two of the bandits at the scene who were alleged to be the appellants.  Later, at an identification parade which was mounted by Inspector of Police Onesmo Mkama (PW3) who was assisted by Detective Sergeant Kaleb (PW4), PW2 said she was able to pick out the appellants as the culprits.  Detective Sergeant Kaleb (PW4) confirmed that PW2 identified the appellants at the identification parade to be some of the bandits who had attacked her and her husband and stole from them.  PW5 – Alimas Akida, a porter who was employed by the Tanzania Railways Corporation, had been asked by the police to be among the people who were paraded and he said in his evidence that he saw a woman pick on the appellants at the parade.

        The first appellant said he was arrested on 25/10/2001, which was ten days after the armed robbery was committed.  He denied that an identification parade was conducted or that he was picked out in the parade.  Similarly, the second appellant was arrested during the early hours on 25/10/2001.  He remained in police custody until 30/10/2001 when he was charged in court.  He disputed having been identified at an identification parade.

        The appellants filed separate memoranda of appeal and at the hearing of their appeal they sought, and each one of them was granted, leave of the Court to file additional grounds of appeal.  So, in all, the appellants had ten grounds of appeal.  Despite the relatively big number of grounds of appeal, the substantive complaints hinge on identification at the scene of crime and during the identification parade.

        Like in the courts below, the appellants were unrepresented and did not wish to argue their grounds of appeal but after the learned State Attorney for the respondent Republic, Mr. Kahangwa, had addressed the Court on the grounds of appeal, each of the appellants responded to the arguments of the State Attorney who had supported the judgments of the two courts below.

        Although PW1 said there was electric light at the scene of the crime, he made no pretences about identifying any of the bandits.  He had been hit in the face and started bleeding so much that his eyes were covered with blood.  Not only that, further assault from the bandits who used the butt of the firearm they carried caused him to fall down unconscious.  His wife (PW2) however, said that although the intruders were dressed like policemen she was able to identify the appellants because of the electricity light and that one of them had dropped his cap.  She did not, however, say who of the two appellants dropped his cap.  Eleven days later, she picked both appellants at an identification parade.  The question to be asked is whether the circumstances at the scene of crime favoured accurate and unmistaken identification of the culprits.

        It is apparent that PW2 believed the intruders were policemen until, according to her, one of those people emerged from the house running and carrying a suitcase.  She said –

“The person who entered inside the said room, came with the suitcase and he was running.  It is when I noticed that they were not policemen”.

Later, she said of the first appellant –

“It was my first time to see you.  I identified you because when you were beating my husband I was watching you because there were (sic) light coming from electricity”.

        The trial court in considering that evidence of identification as compared to the appellants’ defence said –

“… among the issues in dispute is whether the accused persons were identified at the scene.  Although the accused persons have defended themselves that they were not identified at the scene, still I am having doubt concerning their defence”.

The High Court, Rweyemamu, J., upheld that reasoning by the trial court and said –

“I find the trial court properly evaluated the evidence of PW2, and was right in finding the same sufficient basis for conviction of the appellants”.

The learned State Attorney was also of the same view as the first appellate court that PW2 can be relied upon in her evidence of identification at the scene of crime and, therefore, that the appellants’ conviction was well deserved.

        It is an accepted practice that a second appellate court should very sparingly depart from concurrent findings of fact by the trial court and the first appellate court.  Indeed, there is the presumption that disputes on facts are supposed to have been resolved and settled by the time a case leaves the High Court.  That is part of the reason why under section 6 (7) (a) of the Appellate Jurisdiction Act, 1979 it is provided that a party to proceedings under Part X of the Criminal Procedure Act, 1985 (which relate to appeals in cases originating in District Courts or Courts of the Resident Magistrate) may appeal to the Court of Appeal on a matter of law but not on a matter of fact.

        In this appeal, therefore, we will not lightly interfere with the concurrent findings of the trial court and the High Court that PW2 was enabled by the available light at the scene of crime to identify reliably the two of the robbers to be the appellants now before this Court.  This Court may, however, interfere with such finding if it is evident that the two courts below misapprehended the evidence or omitted to consider available evidence or have drawn wrong conclusions from the facts, or if there have been misdirections or non-directions on the evidence.  See Salum Mhando v. R. [1993] TLR 170.

        We think that in this case there was a misdirection by the trial court which was not noticed by the first appellate court.  The trial magistrate commented that although the appellants disputed the evidence of PW2 on identification, he doubted the defence.  The first appellate court did not comment on that approach by the trial court which suggested that the trial magistrate expected to be satisfied with the truthfulness of the defence.  But an accused person does not have to show that their defence is true or satisfactory.  An accused person is not guilty of an offence because of an untrue or weak defence but because the prosecution case leaves no reasonable doubt about their guilt.

        But apart from that misdirection, the two courts below did not seem to notice that overall, the evidence of PW2 was vague.  For example, she often used the word “they” when describing the activities of the gang at the scene.  She said “they entered inside.  I identified them,”  “… I noticed they were not policemen”.  

        We think that vagueness is significant.  It is an indication that the witness was having difficulty in identifying with assurance people who were donning police uniform.  Such people can look quite different when later they are seen in civilian clothes.  A court has to be very careful before acting on the evidence of identification by a single witness in such circumstances.  This is apart from the fact that although PW2 said there was electricity light which aided identification there was no indication how far the light source was from where the culprits were or how bright the light was.

        PW2 attempted a description in court of the persons she said she saw at the scene.  Unfortunately there was no evidence on how or why the appellants were arrested.  Therefore, it is not known if PW2 gave a description to the police and whether the appellants were arrested following a description given by PW2.  No indication was given why it took 10 days before the suspects were arrested.  Was it because during all those days they were missing from their homes or was it because PW2 had not given to the police a helpful description of any of the bandits?

        The appellants complained about an alleged identification parade but, as correctly observed by Mr. Kahangwa, the trial court did not base the conviction of the appellants on the evidence relating to an identification parade.  We do not, therefore, find it necessary to discuss the evidence relating to the identification parade.

        Both the trial magistrate and the learned judge of the first appellate court cited the decision of this Court in Hassan Juma Kanenyera and Others v. Republic [1992] TLR 100 as authority for the proposition that it is only a rule of practice that the evidence of a single witness as to identification under unfavourable conditions needs corroboration but that a court is not precluded from convicting on the uncorroborated evidence of such a witness provided the court is fully satisfied that the witness is telling the truth.  That is a correct proposition of the law.  However, a court cannot be said to be satisfied that the single witness was telling the truth where circumstances show that although the witness might be testifying honestly on what they believe is the truth, yet they might be mistaken.  As we have attempted to show, we consider that PW2 may well have been mistaken although she believed she was testifying the truth as she understood it.

        We are satisfied that had the courts below not misdirected themselves on the burden of proof and had they adverted to the aspects of the case which showed that PW2 might have been mistaken in her identification of two of the bandits, the appellants would have been given the benefit of the doubt because their guilt had not been demonstrated with the requisite certitude in a criminal case.

        We allow the appeal by quashing the conviction and ordering that the appellants be set free unless held for some other lawful cause.

        DATED at DAR ES SALAAM this 30^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

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