Dinia s/o Mustapha vs Republic (Criminal Appeal No. 189 of 2013) [2014] TZCA 2181 (13 March 2014)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: MSOFFE. J.A., KIMARO. J.A.. And MJASIRI. J.A.^ CRIMINAL APPEAL NO. 189 OF 2013 DUNIA s/o MUSTAPHA.................................................. APPELLANT VERSUS THE REPUBLIC ............................................................ RESPONDENT (Appeal from the decision of the High Court of Tanzania at Tabora) (Kaduri, J.l dated the 15th day of September, 2010 in Criminal Sessions Case No. 88 of 2007 JUDGMENT OF THE COURT 11th & 13th March, 2014 MJASIRI. J.A In the High Court of Tanzania at Tabora, the appellant Dunia Mustapha was charged with murder contrary to section 196 of the Penal Code, Cap 16, R.E. 2002. It was the prosecution case that on or about December, 27, 2002 at Mlela Village, within the District and Region of

Kigoma, he murdered one Petro Mjinga. The High Court sitting at Tabora (Kaduri, J.) found the appellant guilty of murder. Consequently he was sentenced to death. Aggrieved with the conviction and sentence of the High Court, the appellant now appeals to this Court. Briefly the facts of this case are as follows. Prior to the death of the deceased Petro Mjinga, a young man died in the deceased's village. His death was-associated with witchcraft. After the burial a group of young men organized themselves to attack all those suspected to be witches and wizards who were responsible for his death. They were armed with pick axes, clubs and machetes. They went on a rampage and attacked various households. The deceased hid in the bush but was unfortunately seen by the group, was attacked and killed and his body was placed on a bed which was burning and was burnt to death. The incident was witnessed by Dominic Lamriro PW1 and his wife Yolanda Donatus PW2, who narrated the sequence of events leading to the death of the deceased. They claimed to know the appellant well and though they were hiding in different spots, they could clearly see what transpired. The appellant was subsequently arrested and charged with causing the death of the

deceased. He denied any involvement and raised the defence of alibi when he presented his defence. At the hearing of the appeal, the appellant was represented by Mr. Mugaya Mtaki learned advocate, whilst the respondent Republic had the services of Mr. Ildephonce Mukandara, learned State Attorney. Mr. Mtaki filed a two (2) point memorandum of appeal which is reproduced as under:- "1. That the learned tria l Judge erred in law in holding that the appellant was p ositively id en tified as the person who kille d the deceased. 2. That the learned tria l Judge d id not properly consider the appellant's defence o f alibi.

He submitted that the main issue for consideration in this case is identification. Therefore the case against the appellant stands or falls on the basis of identification. In relation to ground No. 1 on identification Mr. Mtaki strongly argued that the evidence of PW1 and PW2 was not sufficient to establish the identification of the appellant. There was a commotion at the village and so many people were on the rampage torching houses. It was not easy to pin point any one taking part in that fracas. The conviction of the appellant was based on the evidence of PW1 and PW2 who were husband and wife. He submitted further that PW2 in her testimony stated that she hid at a different spot from her husband and that the daughter of the deceased was with PW1. However she was never called to testify, he contended. He argued that PW1 and PW2 were hiding in the bush out of fear and with a specific purpose of not being seen. They were therefore not in a position to see clearly what was actually taking place. They could not have

followed the disorderly crowd to the deceased's house to witness him being thrown on a burning bed. Their testimony was an exaggeration, he submitted. He also stated that as the incident occurred during the day in a village set up, one would have expected more people to have witnessed the incident. On the whole he submitted that the surrounding circumstances were not conducive to correct identification. He concluded that the identification of the appellant was not proved beyond reasonable doubt. Mr. Mtaki also raised his concerns that the prosecution failed to call the investigating officer who would have provided a good link to what had transpired. He asked the court to draw an adverse inference against the prosecution case. On ground No. 2 Mr. Mtaki submitted that the trial Judge did not consider the appellant's defence of alibi. He contended that even though the appellant failed to comply with section 194(4) of the Criminal Procedure Act, [Cap 20 R.E. 2002] the trial Judge was duty bound to consider the defence.

followed the disorderly crowd to the deceased's house to witness him being thrown on a burning bed. Their testimony was an exaggeration, he submitted. He also stated that as the incident occurred during the day in a village set up, one would have expected more people to have witnessed the incident. On the whole he submitted that the surrounding circumstances were not conducive to correct identification. He concluded that the identification of the appellant was not proved beyond reasonable doubt. Mr. Mtaki also raised his concerns that the prosecution failed to call the investigating officer who would have provided a good link to what had transpired. He asked the court to draw an adverse inference against the prosecution case. On ground No. 2 Mr. Mtaki submitted that the trial Judge did not consider the appellant's defence of alibi. He contended that even though the appellant failed to comply with section 194(4) of the Criminal Procedure Act, [Cap 20 R.E. 2002] the trial Judge was duty bound to consider the defence.

Mr. Mukandara on his part did not support the conviction of the appellant. He contended that the incident involved a lot of people and many houses were torched. The whole village was in complete disarray. It was not possible for PW1 and PW2 to clearly witness what transpired at the deceased's house. He also submitted that if PW1 was with the deceased's daughter, then she should have been called as a witness. He also argued that there was no link between the cause of death of the deceased which was due to severe burns (according to the post mortem report) and the account given by PW1 and PW2 that he was hit on the head with a pick axe. He also remarked on the failure by the prosecution to call the investigating officer. The main issues for consideration and decision are as follows:-

1. W hether or not the appellants were properly id en tified by PW1 and PW2.
2. W hether o r not the conviction o f the appellant was against the w eight o f evidence on record.

We on our part, after a careful analysis of the evidence on record and the submissions made by both counsel are of the considered view that in the instant case the circumstances were not conducive to correct identification despite the fact that the incident occurred during the day. The whole episode of hunting and burning of houses owned by people suspected to be witches and/or wizards created such a havoc in the village that it was next to impossible to pin point who was doing what. See Saidi Chally Scania v Republic, Criminal Appeal No. 94 of 2005 CAT (unreported). The evidence of visual identification is one of the weakest kind and should be relied upon when all possibilities of mistaken identity are eliminated - See for instance Anthony Kigodi v Republic, Criminal Appeal No. 94 of 2005 CAT (unreported); Raymond Francis v. Republic [1994] TLR 100; Shamir John v Republic, Criminal Appeal No. 202 of 2004 CAT (unreported). In Raymond Francis v Republic (supra) it was stated thus:-

"...It is elem entary that in a crim inal case where determ ination depends essentially on identification, evidence on conditions favouring a correct identification is o f the utm ost im portance." We are alive to the fact that an appellate court can only interfere with a finding of fact by a trial court when there has been a misapprehension of the evidence, a miscarriage of justice or a violation of a principle of law or practice - See Salum Mhando v Republic [1993] TLR 170. The law is settled that the evidence of visual identification should only be relied upon when all possibilities of mistaken identity are eliminated and the court is satisfied that the evidence before it is absolutely water tight. The principles to be taken into account are set out in the celebrated case of Waziri Amani v. Republic [1980] TLR 250 and other subsequent decisions of this Court. However these guidelines are neither exhaustive nor conclusive and each case has to be decided on its own merit.

On the failure by the prosecution to call the investigating officer, we would like to state that the law is clear. In terms of section 143 of the Evidence Act, Cap 6 R.E. 2002, there is no specific number of witnesses required for the prosecution to prove any fact. See Yohanes Msigwa v Republic [1990] TLR 148. What is important is the quality of the evidence and not the numerical value. In relation to the defence of alibi, the trial Judge concluded that there was no evidence to support it as the accused person did not bring any. He relied on section 194(6) of the Criminal Procedure Act R.E. 2002 that where the accused person raises a defence of alibi without having first furnished the prosecution with the particulars of the alibi before the prosecution case is closed, the court may in its discretion accord no weight of any kind to the defence. In Marwa Wangiti Mwita and Another v Republic [2002] TLR 39, it was held that the absence of notice required by section 194 of the Criminal Procedure Act 1985, does not mandate or authorize the outright rejection of an alibi, though it may affect the weight to be placed on it.

In Charles Samson v Republic [1990] TLR 39 it was stated thus:- "The court is not exem pt from the requirem ent to take into account the defence o f alibi, where such defence has not been disclosed by an accused person before the prosecution doses its case . " See also Rashid Seba v Republic, Criminal Appeal No. 95 of 2005 CAT (unreported). Taking into consideration the settled position of the law, we can conclude with certainty that the evidence of identification as given by PW1 and PW2 cannot be said to have met the legal requirements by any standard. In the result and for the above reasons, we hereby allow the appeal, quash the conviction for murder and set aside the death sentence. The appellant is to be released from custody unless otherwise lawfully held. It is so ordered.

J.H. MSOFFE JUSTICE OF APPEAL N.P. KIMARO JUSTICE OF APPEAL S. MJASIRI JUSTICE OF APPEAL I certify that this is a true copy of the original. I SENIOR DEPUTY REGISTRAR COURT OF APPEAL