Juma Risasi @ Kauta and Another vs Republic (HC Criminal Appeal No. 15 of 1999) [1999] TZHC 211 (21 July 1999)

MWlTA, J. lN THE HIGH COURT OF TANZANIA .\T TABORA. · APPELLATE JURISDICTION (HC) CRIMIN!-1.L APPEAL NO. 15 CF 17 OF 1999 ORIGINAL CRIMINAL CASE NO. 9 OF 1994 OF THE DISTRICT COURT OF URlU·:lBO DISTRICT AT URfi.MBO JOMA RJSf,.SI @ KAUT!, • o• • • • • • • •• o • oo ••••a .APPELLANTS . . HirnUNA ABDALLAH VERSUS THE REPUBLIC • ~ • ............. • .• • ........... RESPOND~ JUDGMENT Juma s/• Risasi, John s/e hancis,. Haruna s/o Abdallah and Saidi s/o Abdallah were charged with the offence of Robbery with Violence eontary to-sections 285 and 28, of the Penal Code in that on 11.2.93 at 20.00hours at Urassa Village within Urambo District the said accused persons did jointly and together steal ene bicycle from one Mussa Yasini and immediatly after er immed:i-ately before such stealing they used violence and injured the said Mussa Yasini in order to obtain the said property At the end of their trial Saidi s/o Abdallah was acquitted. John Francis was found. not guilty f the offence with whio.. he was charged but was convicted of the 1esser offence· of receiving st6D.en property and sentenced to three· years ~risonment. Ju.ma Ri.sasi and Haruna Abdallah were found guilty as charged and sentenced to thirty years imprisonment. Being di.ssat.is:fied Ju.ma Ri.sasi and Haruna Abdallah haYe appealed iro this.Court.. At the hearing of this .appeal the Appellants appeared and a.i-gued the appeal in person.. The Republic had the services ,r

•. ( 2 ) ' .; Mr, Ndunguru, learned Senior State Attorney. Briefly the facts are as follows:• en 11;2.93 Mussa Yasini, resident of Kasisi Village was at about . j 20_.80 hours that day, riding his bicycle· from his village towards Urambo Township. On reaching Urassa Village he was lighted with a torch by two people who ordered him to stop. When he stopped two more appeared at the seen~. Mussa Yasini was hit with a club on the head. He fell down, and became inconscious. His assailants took away his bicycle and disappeared from the scene. A short time after-the incident one Khalid s/o Liyau, Assistant Field Officer arrived at the scene and found Mussa Yasini lying down, bleeding and unconsciouso He took him to the police station then to hospital. Police investigations culminated in the arrest of the accused persons on different dates. John Francis and Juma Risasi were arrested by Sungusungu on 13.2.1993. Sungusungu had got information that there were stolen bicycle in Nsenda Village. Their investigations led them to John Francis who was found in possession of one bicycle (make, phoenix) which he alleged was sold to him by Juma R:i.sasi. When questioned by Sungusungu, Juma R:i.sasi admitted to have sold the said bicycle to John Francis, Abdallah Haruna and Saidi Abdallah were arrested iri Kigoma. Rural District in October, 1993• When charged both accused persons pleaded not guilty. In order to discharge the duty of proving the charges the prosecution called six witnesses. P.vI, Khalid Liyau, tol,d the Court that on 11.2.19'3 at 20.dO hours he was riding his motor cycle from Kasisi Village towards Urambo township. On reaching Urasa "A" he saw a man requiring ~im to stop. The said man requested him to ride behind him in order to light the way for him as that ms.n's bicycle had no light. He further told him that there were bandits ahead of them. PdI, being suspecious 1

( 3 ) decided to continue with his safari. About -j!, paces from where he was stopped by the_ man seeking assistance of light he saw a group of people helping }'lussa Yasini the complainant. P.,-JI took Mussa Yass:in to hospital as the complainant was severely injured and unconscious. ?:II told the Court that he identified the person who stopped him seeking assistance as Saidi Abdallah and that he had seen him before at Urassa Villagee IW2, c. 1466 D/Cpl. Patrick Ma.bungu, told the Court how he arrested I • Haruna Abdallah at Nguruka Village, Kigoma Rural District. FW3, Mussa Yasini, told the Court that ~n 11.2.93 he was rid:tng his bicycle from Kasisi Village to Uramb6 township. That at about 20.00 hours when he arrived at Urassa Tillage he was stopped by o people who attacked him with clubs until he became unconscious •. That his bicycle lllclke was phoenix, was stolen. On cross-examination he told the Court that he identified his assailants as Juma Risasi' and Haruna Abdallah, that he identified them by mean_s of bicycle light from a distance of 30 paces and that he had not seen them before; that it was his first time to see Juma ltisasi. RrT4, AZIZI YASINI, told the Court that he was informed of the injury of his elder brother Mussa Yasini, by PIH on 11 ■ 2•93 at 23.00 hours. That on 17.2.93 he was informed that the bicycle which was stolen when his elder brother was attacked by bandits had been recovered by Sungusungu at Nsenda Village; that he went to the police station for the purpose of identifying the said ' . bicycle; that he was able to identify it among 5 bicycles because it was a phoenix bcycle and had a fore tyre which had been taken from his own bicycle and that its number had been oblitiratedo PW.5, SALUM s/o RAMADHANI testified to ·the effect that at the material time he was Nsenda Village Sungusungu Commander; / that on 13,2.93 Sungusungu had information that there J.as a stolen bicycle at the home of one Erasto of Nsenda viilage; that on being

( 4) questioned 0 · Erasto said there were two bicycle; that one of them longed to Juma Risasi and the other had been sold to John Francis. On being questioned, John Francis admit_ted to have bought a bicycle, . . make phoenix from Juma Risasi. John Francis was an-ested and the said . . bicycie seized. Juma Risasi was t? 0 ugt and found. On being questioned Juma Ri.sasi admitted to have sold the said bicycle ·to John Francis. ' On further interrogation Ju.ma Ri.sasi confessed that he stole the said bicycle at Urassa village and that he was with Abdallah Ha.run.a and Saidi Abdallah when he stole the said bicycle. IW5 told the yourt ' . that Sungusungu arrested Abdallah Haruna in Urambo Township; tft he 1 Abdallah Haruna, admitted to have been together with June. Rlsasi during the comnission of the offence; However, Abdallah Haruna 'was able to escape from Sungusungu Office at Nsend.ao .Pd6 1 Athumani s/o Masuja testified t~ the effect that he was present when the alleged stolen bicycle was found in the prossession of John Francis. The accused persons called no witnesses in their defenoe but each one gave evidence on oathe The gist of their evidenoe is as follows: ™It JUMA s/o RISASI, testified to the ef;ect that he was a tailor stationed at Tabora; that he had not own his co-accused before; that he had gone to Urambo in November, 12; and in l)ecember of that year he had gone to Igwisi for faziming purpose~~ lie stayed at Igwisi till February 1993<- · On 10/2/93 while at Igwisi. he got news of his grand father's death at Urambo. On 11.2.93 he attended burial of his grand father at Urambo. During the evening of 12.2.93 he was sent to Igwisi to collect maize and groundnuts. He returned on 13o2o93. He -testified ·further that he was arrested on 15/2/93 at home and was taken to divisional office where he saw same one under an-est with a bicycle suspected to have been stolen. That person pointed to him, Jum:i '.Risasi,- as the person wh,, bailed the said bicycle to him; that he, Juma Risasi, denied such allegation.

( 5 ) He went mi to deny the testmony of P/15 to the effect that he, Juma Risasi,_ had confessed to Su.ngu.sungu.- ?ff21 John s/o Francis, told the Court that he had not known , .3rd acced Harul:la AbdaJtiah and 4th, accused, Saidi Abdallah, before; but that he, John Francis, had seen 1st accused, Juma. Risasi 1 prior to this incident because Jum:i. Risasi used to visit John's neighbour, Erasto Isaya; that on the night of 11.2.1993-he was awakened by Juma Ri.sasi, who was acompanied by Erasto s/o Isa.ya; that· the two had a bicycle (make, phoenix) which they wanted te sell. for Shs.1.5000/=; that he, John Francis, had no money, hence he took them to his brother Nicholaus E/.o Francis; that Nicholaus Francis gave Juma Risasi Shs.8 1 000/=o. There upon Juma l?:i.sasi and his friend left leaving the bicycle with John Francis. ll'12 · went on to tell the Court that he was arrested by Sungusungu en·' 13.12.9, and sent to Sungusungu office together with the said bicyclet · that he told Sungusungu that he had bought the said bicycle fran Juna Risasi; that when June. Ri.aasi; was arrested he admitted to the Sungusu.ngu that he had sold the said bicycle to-John Francis. On crosxamination by 3rd accused, Abdallah Haruna, John Francis denied to have seen him at the S~ brfice~ . . Both DW3; Abdallah Hartma and.DW4, Saidi Abdallah told the Court that they were arrested in Kigom:t District in October,- 19,3 and denied to have been involved in the incident at Urassa village The conviction in this case was based on the visual identification : Abdallah to Sungusungu, John Francis testimony in Ccurt and the identification of the stolen bicycle by PW4o Such evidence·will be examined to find out whether it is soud enough to sustain conviction. I start with the confession to Sungusungu by the Appellants. P.'1.5, the Nsenda Village f!ungusungu Commander told the Court· that

( 6_ ) the two confessed to have been involved in the commission of the offence with which they were eventually charged when they were interrogated by Sungusungu; and that Juma Risa.si confessed to having sold the stolen bicycle to John Francis. In terms of section 2!/ of the Evidence Act, 1967, as amended by Act no. 19 · of -1980 only confession to a police Officer of the rank of Corporal . or above is admissible in evidence.- The rank of the Sungu.sungu . . Commander is equivallent to the rank_ of a police constable •. Hence confession to a Sungu.sungu Commander is not admissible in evidence in a criminal trial. Had discovery of the stolen bicycle been a . . . result of such confession, then such confession would have been admissible under section 31 of the Evidence Act, 1967. That was not the case. The alleged stolen bicycle was discovered prior to the confession by the Appellants. Conviction can not, therefore be based on such confession_. I have next to consider the significance of the discovery of the all.egad stolen bicycle as well as the testimony of John Francis implicating Juma. Itisasi. !n ABDALLAH IBRAHIM V • Regina 1 L.R.S. no ; 6 of 196o at p.3, Law, J. (as he then was) at P•5 quoted with approval. an extract from Keny•s Outlines of Criminal Law 15th editiQn P• 319 The said extract is as follows: "The possessor of gocds recently stolen may fairly be regarded as either the actual thief or_else a guilty .receiver. His possession raises also - but less strongly - a presumptien of his guilty connection with any further ~rime that accompanied the theft, e.g. a burglary or murder•" I \ In ALLY·BAKARI & PILI BAKARI V. PUBLIC (1992) T.L.R;, 10, M3.pigano Ag. J.A. at p.15 said: ilQUite·olearly 1 as a matter of law and logic, it is essential for a proper application of the doctrine of recent po·ssession that the stoln· \

( 7 ) thing in the·possession of the accused must have, .. a· reference to the charge laid against the accusedo That is to say that the. presumption of guiltycar1 only arise where there is cogent proof that the stolen thing possessed by the accu.sed is the one that was stolen during the comm:i..ssion of the offence charged, and, no doubt, it is the prosecution who assumes the burden of such proof, and the fact that the accused does not ,;laim to be the owner of the property does not relieve the prosecution of that obligationo 11 Hence in this case, in order that the doGtr:ine of recent possession may be applicable it must be proved beyond reasonable doubt that the bicycle that was found in possession of John Francis was the bicycle which was stolen from Mussa Yassini at Urassa Village on 1.2.1993 at 20.00 _hours. It was held in NA.SSOID s/) MOHAMED VR (1967) H.C.D. n. 446 that the complainant must be asked for description or special marlcs before goods he intends to identify are shown to himo Bare statements claiming to identify common objects a:re inadequate: R.V. MBESWA s/o CHJl,OYA (1.970) HoCoDo n,. 2100 . < In the ins:tant case, the said bicycle was identified by. PW4: A.dzi Yasini FW4 told the Court that when he went to identify the said.bicycle at the police statfon he was shown 5 bicycl.es and was a'.ble to :i.dent'ify it because it was ph:;en:iY :'ir make and had a f9re brother .tyre which he identified as the one he gave t0 his elde7t.~ Yaas:l.n and· that the numb.ers had been destroyedo The itness 9 IW4, does not appear to have been aed for description or special marks before he was s.."1.own the bicycle. The type .. of make of a bicyc1!" canm;> 3 c be e.. spec::.aJ. inane by which t identify . . . i • a bicycle. Similarly a front tyre was not described how it helped ! identify the bicycle as the bicycle that was stolen on 11.2.~3- , ,

( 8 ) Sirn:iJ ary the fact that the frame numbers had been oblitirated _coulq. not· by itself identify the bicycle beyond reasonable doubt. h the bicycle was not identified beyond reasonable doubt as the one stolen on 112o93 the doctrine of recent possession cannot applyo Even if the bicycle could be adequately identified as the one stolen during the commission of the offence with which the Appellants were charged, the presumption of guilt could not arise until it is proved beyond reasonable doubt tht the said bicycle was sold or . in. any way transfereed to John Francis by Ju.ma Risasie Having seen . . that the confession to the Sungusungu was wrogly admitted in evidence and should be. discregarded 1 we are left with one piece evidence tending to connect Juma Risasi with the said bicycle; the testimony of John Franciso IM2 1 . John Francis told the Court that 6:n the night bf 12,.2.1993 he was awakened by Ju.ma Ri.1 accompanied_by :Erasto s/6 Isa,a . . who had a bicycle for sale, that as John Francis had no money, he took them to his brother Nicholaus Francis who gave j.l!mi llisasi ShsS,ooo/a . . . as the prir·; for the bicycle That the said bicycle was later taken by Sungusl.lllgu as it had been stoleno John Risa.s:i was an adcompli~, His evidence <tnnnot be acted upon uh.less it is· dorroborated. 'It was held in mHAMED ISUMAIL Vo REPUBLIC (1975) LRT n. 31 that although it is not a rule of law, but only of practice, that evidence of an accomplice requires corroboration, it is a very salutary rule and it is only in rare cases that a Court will convict on such uncorroborated Evidenceo In SALUM S/0 CHAKAPU v.R. and SAIPI MANDAI v.R. (1967) H.c.D. ne• 14 it was held that although. uncorroborated testimony by an ·alleged accomplice may support a conviction, the general. practice is not to convict on such evidence. Departures from this practhe are justified only if the judge, fully cognizant of the danger, is sati~fied that the accomplice's testimony is so exceptionally cogent · that the danger has disappearedo·

( 9 ) In the instant case John Francis testimony was uncorroborated. ,_ It is also surpri.sing that the persons who are alleged to have witnesses the sa:i.d sale, Erasto s/o Isaya and Nicholaus Francis, were not called as witnesses. Even if it could have been proved th.at Juma Ri.sasi did indeed sell the said bicycle to John Francis, so long as there is no cogent evidence to prove that the said bicycle is the bicycle tha\ was stolen during the coimnission of the offence on 11 0 2.93 the 'noctrine \ of recent possession would not apply 0 \ . I Finally I have to consider the visual idntification evidence. . It is not in dispute that the incident occurred· at night, time'Wheil it was . dark. \ :EW3 told .the Court that on 11.2.93 at about 7.?J) p.m. while riding his bicycle towards Uambo township he was stopped by bandits who beat him until he became unconscious and stole his bicycle; that by means of bicycle light from a distance of 30 paces he · was able to identify his assailants as JUMA R!SASI and HarllUa Abdallah. no Asether evidence has been shown to be inadequate.to su,sta~ conviction, Conviction of Juma Risasi and Ha.run.a Abdallah hinges on the oorrectne~ !'I of this visual identification. It is now well establishe4 that whenever the case against an accused depends wholly or substantially on the col"r€ctness cf one or more visual identification of the accsed whic the defence alleges to be mistaken the judge should scrutinize carefully that evidence beCore eonvicting on the correctness of the identification~ rn WAZ!RI A¥lANI v. REPUBLIC (1980) T L R 2.50 the Court of Appeai held that evidence of visual identi.f'fo::ition is of the weakest kind and most unrel1..ble that no Court should act on evidence of visual. identification u..'lless all possibilities ·of mistaken identity are eliminated and the Court is fully saisfied that the evidence before 'if is absolutely water tight 11he Court laid down guide1ines for testing the rel:i~.'l:lili-tt 0: visual ~ .. den+i.ffoation evidence, at P• 252 as follows:

( 10) ·· "A1though no hard and fast rules can be laid do"m as to the manner a trial judge should determine questions of disputed identity, it seems llear to us that he could not be said to have properly resolved the issue unless there is shown on.the record a careful and considered analysis of all the surrounding circumstances of the crime being tried. We would for example expect to find on record questions such as the following osed and resolved by him; the time the witness had the accused under observation; the distance at which he observed him; the conditions in which such observation occurred, for instance, whether it was day or night-time; whether there was good or poor lighting at the scene; and further whether the witness !mew or had seen the accused before or not." ... J"n the nstant case Pir/3 does not appear to have had ample time. "l in which to obse*e the appellants because as soon as the assail.an~~ stopped him they hit him n the head and he:ijeca unconscious. was at night and bicycle light cannot be said to be adequate for identification of a stranger crossing the road. ;I) paces away. The . . It assailants were strangers to PW3. The witness, RJ3, was also traumatised.. Such conditions are not ideal for correct identification. J"n such circumstances an identifioation parade was highly desirable: JOHN OPIO AND ANOTHER V. REPUBLIC (1969) H CD ne·59• No identification parade was carried out in the instant case. It would appear from the record that witness, PA3 1 identified the appellants while in the dock when P.'13 was giving evidence in Court on 30.8.94: It should be remembered that the incident occurred on 11.2.93. It is unlidely that P..13 could remember a strunger he saw briefly under poor light one and a half years later. As the Appellants were not known to PW3, identification should have been accompanied by details.or decription by PW3: MOHAMED BIN ALLVI V• R. (1942) ? E A C A 72; LUDOVIC s/o KASHAKU V. REPUBLIC (1967) H C D r.. 1 , 194 1 No such details or descriptions were given in this case. ln cases where there are favourable conditions for correct identifica1ion the danger for mistaken identification is lessened, but where the conditions for correct identification are lacking, as in the instant case, the greater

. ( 11 ) is the danger for.misten identification. In such eircumstan•e corroborative evidence, either direct e>r circumstantial is needed: .. ABDAIA Bm WEND) AND ANOTHER (l,53) 20 E.A.C.-A- l66; · - . ___ .- . HASSAN JUMA KANENYERA AND OTHERS V. REPUBLIC (1992) T.L.R. 100; AFRICA MWAMBOGO V• REPUBLIC ( 1984) T L R 24o. Corroborative evidence of the evidence of visual identification is lacking in the instant appeal. For these ~easons, with respect, I am inclined to agree with the assertion by Mro Ndungu.ru, learned Senior State Attorney, that the charge was not proved to the required standard. The appeal is allowed. Conviction is quashed and sentence is set aside. The appellants are to be release unless otherwise lawfully detained • . '>il)-! • I D.M.M.HTA JUDGE 2117/99 Delivered in Chambers in the presenoe of Mr. 'Kabuguzi, State Attori'lp' and in the absence of the Appellants this 21st day of July, 1999. \ \ I f .. ! D.M.MvHTli JUDGE 21/7/1999