IN THE COURT OF APPEAL OF TANZANIA
AT MWANZA
(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
in
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
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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
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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
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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.
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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
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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
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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”.
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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
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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”.
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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
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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”.
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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.
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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
Delivered under my hand and Court Seal in open Court/Chambers at
Mwanza this ……………. day of ……………………………………………..
…………………………………………
DEPUTY REGISTRAR