Hebron Johnson and 3 Others vs Republic (High Court Criminal Appeal No. 138 of 1997) [1999] TZHC 413 (3 September 1999)

.. l . I . n Trill HIGH COURT OF TAi"fZANIA AT MBEYA HIGH COURT Gffr 1 1IlAL !tl--PEAL NO. 138 OF 1997 (From the decisfon of the District Court of Rungwe at 'fukuyu in Criminal Case No.37 ·of 1997 Before: F.N r.-fatogolo District Magistrate)

1. HEBRON JOHNSON ) .· )
2. JACOB DAUD ) •oo•••o•o• APPELLAN'rs .:-•:. 3. J ANKEN fvfr/ AIITTWu"-l"GE ) ;·.4. SE.rT'l MWAK'[USA ) ) Versus THE REPUBLIC 0 0 0 0 O O O O e O O O O O O D ·) 0 0 0 0 0 0 RESPON"DENT JUDGMENT I' '1iihe, .four app_?ll.ants , He bran Johnson, J a.cob Dau di, J anken Mwaki t wange , : and Setty Mwakyusa ,, .were jointly arraigned before the,:. district court of Rungwe distrct at Tukuyu 2.s the first, second, thir'.d.and fourth accuseds respectively., on a chc:irge o;( Robbery with violence, contrary to sections 285 and 286 of the Pen Code. 'l'hey were convicted as charged and each sentenced to the s.ta:tutory minimum i,.iprisonment term of fifteen years. The conviction . . ., and sent.ence aggrieved them, hence this appeal which was unresisted by the . . : ••, . Republic and heard in the absence of the appellants who had opted not to enter,. court appearances • . :J ;:",During the night of 2oo2o97 Nehory 1!.1_ia Kimsi (PW1) was asleep in his · ... ·'· ·.1:f hotis-~ at I'Jkunga. villa[;e with his_ shamba boy/herdsr:wn, Solomon Kimei HJ3. He had slaughtered a. cow during ·the day whose meat he was 9 elling to villagers and had so far real-ized shs.6,500/=• At about 9.00 pm he went to the toilet outside the house for a. call f nat.ure. \·Jhile there a group of 15 persons armed with spears,:· :ciubs,:and torches invaded his compound. , They were • flashing torches' around and PW1 , whb had taken cover behind the la,:rine, claimed that he managed to identify eight of the .invaders by meaiis of the torch beams, among them, .the first, second and fourth nppellants. He cl.::1imed they were fellow villagers he knew well. Some of the thugs broke the window of •••••• 0 •••••• . ,, ,,

the house and ent0red. They found P-,/3 in betl. They sat on him on the bed and held hir,1 by the neck demonding to be given the money realized from selling the meat. PW3 pointed at the money (Shs.6 1 500/=) on the table and they took it. They ate the remains of the evening food. ,:md left. PW3 claimed to ha.v~· identified the second 9 fourth and first appellants by means of the beoms of the torches they held. Early in the morning ·of the foll?wing day a report· .. of the incident was registered with the .Area Chairman, Jimson Mwamakombe (PW2), and &.t ICiwira Police btation. PW2 ·;~~sted the fourth appellclnt nnd took :qm to the police station while .the first, second and third appellants were lat'er arrested by militiamen nd entruste_ .to the investigator, DC Michael (PW4), of Tukuyu C. I. D. ·, . -" _...,..,, .... <The~£0u;r. appellants denied complicity in the crirtl'e• and raised defences of alib:L 'I'he first appellant was on 282.87 assisting Charles Mwakabende (DW5) cultiva.ting the shamba of DW5 1 s father where he slept. DW5 suppdrted him. The second appellant wc1s at liorrie vii th ·his wife, Kisa. Jacob· (DW6), at the material time of the crili1e, mid. 'DW6 ·confirmed that stoi-y. The third appellant was at home sicl a.t the ti1ne ··of tlie ·,crime and his sistBr, Haruna. d/o Mwajagile (DWi) ;' sa.id she-· was with him~ And the fourth appellant said from 18.2.97 to 3.3.97. he was away at Kanyegele village harvesting beans of Frank Mwamakombe (D\18) and DW8:; spoke in his support. · And P':J2 sn.id ,:The · fourth accused (appellant) waB harvesting beans a.t Kanyegele village beyond Kiwira. ;; 'l'he only one· issue upon which _this appeGl must stand or fail is whether or not the appellants were properly. identified by PW1 and PW3. The evidence implicating the nppe~~?nts with the charge preferred-against them wa. 9 entirely ~ of visual identificaton, and it is a settled principle of l,!;1,W tht, such evidence must be absolutely watertight to jut_ify o.· convictiona 'l'he Court .qf ·' , . • Appeal of Tanzertia held in __ v{azir.i. -~~ . .Y:J"..B,e.:e.1}.blis {1980) TLR 250: · ho court should a.ct on evidence of visual identification . .' ., . . . unless all possibilities of mistaken identity are eliminated and the. 2;u"rt is fully satisfied that the evidence before it "is absolutely watertight. . o O·a o o • • • • • o no o /3

3 It is als_o an e_,;=;tablished principle of law that in cases of identification there should be details or a description of the person that is said to have been identifiedo r:l:'his often enhances the weight of such evidence. The Court '72, at page 73~ 'rhis· court has previously pointed out, and._ we wisll to: repeat, that in' ·every case in which there is a question as to the identity of the accused, the fact of there having been a description given and the terms of that description are mattE!rs of the highest importance of which evidence o;_ght always to be given, first of all, of course, by.person or persons who gave the description and purport to identify.the accused, and then by the person or persons to whom the description was giveno In this case I agree v-li th the learned ste.te attorney, Vir. Boniface, that the appellants were not properly identified. I'he· night as well as th'e house ' . . . . were dark .. The torches held by the bandits were not directed at the.faces of the banditso 'rhe purported identification by PW1 was out in the open and proximity in dfotances waB not given, while PW3 waB pinned down on his bed and held by the throat. The circumstances, therefore, did not favour a correct ' ' identification despite that P\11 ancl P-J3 might have known the aJlpellants before the incidento Besides, neither PW1 nor PW3 gave details or description of the appellants which could have. given weight to their bare assertion that they identified them~· · ' '.Che appellants, as already explained, raised defences of alibi. It does not occur to me that the trial court ciccorded those defences the attention they deserved. The Court of ;~ppeal of ;.ranzania held in Ali Salehe Msutu V. epublic (1980) TLR I: P.s a matter of law, an accused person is not required to prove his alibi. It is sufficient for him if the c:ilibi raises a rea.so;1able doubt. n this case, the appe1lants did not only raise those defences, but brought viclence in their support. In my view, those defences, properly coiIBidered /4 I

4 ., : in the light of the unsatisfactory iclentir'icdion evidence, were quite \ ' . plausible and capable of raising reasonable cioubts as to the cornplicity ~ ... ·'~ 4 ; of the appellahts in t-he crim-. For all the fore-gong reasons, . • . ! I allow the appeal, qua,sh the conviction; set asidE; ... tlie·."Sei:i,tence; ·~ ~) -: ·: .. . .. .. and henibv order the immediate release of the f oiir ·- . J ; .)· .. . ~ ... a1)pella{l;s frora pr'i--son. unless btherwise /., .. . ··;,"· . lawfully heldo . . B.P. Moma JUDGE • . . For Appellants: All absent • ... . •, ' ( . l I CER'rIFY 'i 1 HA'i 1 'l'IU.S LS A TRUE COPY OF ;rr.i.E ORIGINAL

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