Republic vs Rashidi Fikiri (Criminal Session Case No. 19 of 1998) [1999] TZHC 205 (20 May 1999)

t,:,. KAJI, J. IN THE HIGH COURr OF TANZANIA AT M'rWARA ORIGINAL.JURISDICTION (MTWARA REGISTRY) CRIMINAL SESSION CASE No. 19 OF 198 THE REPUBLIC ... ,, : ·· 'versus: RASHIDI FIKIRI JUDGMENT The accused RASHIDI FIKIRI is indicted with murder c/s 196 of the Penal Code Cap 16. The prosecution witnesses adduced evidence to the effect that on 8 •. 1.97 PW2 SWALEHE HAIFAI and the deceased BASHIRU KHALI'ANI were hired by a man to dig for him a pit latrine at 4800/- •. They obliged and started digging at about 7 Arn. While digging, two youngmen came and called the deceased aside and asked him as to why he had broken their house and had stolen their kanzu and hat therefrom. The deceased deied. Those two youngmeh who were alleged to be RASHID! KUMEHO and ABDALLAH SONI (not in Court): l~:fto Later they came there again and asked the deceased the same question~ The deceased denied again~ They left. At about 5 pm PW2 and the deceased finished their work and were paid their wage of 4800/-~ They shared equally. After cleaning themselves they left for a poriibeshop called SALAMA where they fo~d t?e very_ Kumeho and oni drinking pombe• PvJ2 at1;d the dedeased sat at another place and started drinking ~W2 was drirtl-:ing chibuku while the deceased was drinking wanzuki. Later Kumeho and Soni came where they were and started exchanging words with the deceased. It would appear the said words were not · pa;Latableo The deceased suggested that they better moved away from there. As by tr.en only 10 bottles of wanzuki had remained, the deceased bought all of them and the seller assisted them to carry them to her home• At her home she took out a mat and spread it outside at ·a nearby house which was closed. All 3, that is, the deceased, PW2 Swalehe and the pombeseller, started drinking, After a short time PW2 left for a nearby shop to buy some cigarettes. By then it was about 9 pm. • •• /2 ••• ,

2 .. · . Whe·n he· returned 1 just when he approached he found Kumeho and ,soni beating the deceased using bottles. The accused who was standing nearby armed with bottles threw sortie bottles at him and chased him away. The pombeseller was also chased away~ Kumeho and Soni went on beating the decea§ed using bottles while the accused standing nearby chasing awey whoever approached there~ The deceased ran into the pombeselleris house but kumeho and Soni went there and dragged him outside and continued beatiiig hitn viith bottles which they had, tater Kumeho and Soni dragged the deceased from Nangwala area across the Newala/Masasi Road to Luchingu area while the acciiseci following closely chasing whoevr attempted to go there. P\12 follo.Jed them at a distance. But when they approached Luchingu area where there was no light he feared to follow them. He left for home through the said pbmbe shop •. But before reaching home he weht to the deceased 1 s home to check whether the deceased had returned. He found him missing. He narrated to the deceased 1 s girlfriend who was there as to what had happened to the deceasE:d. He left for liome and slept In the morning of 9.1l97 the deceased 1 s body was found at Luchirigu ' ' , with a huge cut wound on the head and partially burnt with fire. There was a panga neco1rby and a heap of dry grass. The body was taken to Net-rala Hospital for examihation~ The Post Mortem Examination Report Exh P1 showed the cause of death lo be due to severe burn and severe haemorrhage due to deep scalp cut wounds. PW2 was arrested for interrogation and efforts were made to trace Kumeho, Soni and the accused. The accused was apprehended by civilians on 11.1.97. Kumeho and Soni have never been traced. It is alleged they absconded to an unknown place in Mozambique immediately after the Commission of this offence. Investigation revealed that PW2 did not participate in causing the death of the deceased. He was released by the police. An Identification Parade was conducted whereby PW2 Swalehe and PW1 HADIJA d/o Jill!'1.A identified the accused to be among those who participated in causing the death of the deceased. He was indicted as he now stands. In his defence the accused raised a defence of an . ALIBI saying he was at home at Kipini village throughout that day and night. He was supported by his father DW2 FIKIRI LUh1JNDE and his sister DW3 AMINA @ MWAJUMA d/o FIKIRI who said he was really at home at Kipini, a distance of 3 to 5 kms from the scene of Crime throughout that dey and night. All 3 gentlemen assessors were doubtful whether the accused was properly identified by PW1 Hadija and PW2 Swalehe. They felt that the circumstrulces existing at that time were not favourable for a proper ••• /3 •••

3 identification especially that PW1 and PW2 were terrified with the event and could harddly concentrate on trying to identify the accused who was new to them. They were therefore of a unanimous opinion that the accused is not guilty as charged and should be acquitted. There is no doubt that the deceased Bashiru Khalfani is really dead and that he died a violent death. This has been established by the evidence of Ph PW2, PW3 and the Post Mortem Examination Repo:t-t Exh P1 ., .... The only crucicil issue is ehther the accused participated in causing the death of {he.dec~~ed ciwfhli;t arid with malide aforethotihtl There is some ,eviden.Ct3 bj .vl1 .ad:ij t:rild PVi Swalehe that the a.dcused participated in cauing the death of the deceai3ed unlawfully and i th malice aforethought At this juncture the cr-Uciai issue is whetlir< PW1 and PW2 proerly identified the accused at the scehe of crim~. PW1 and PW2 clclimed to have identified the accused through moohiight d iectricity light from a nearby house. PW2 claimed also that at a cetain stage he as assisted by electricity light when the accusetl arid his friends•cirrie psed near a milling machine. PW1 attempted to give some description of th accused to impress upon the Court that she reaily identified him at the . . scene. But she kept on changing some of those desriptionsJ For exa.mplei in her examination.in chief she said that the accused. was iAea.ring a suruali and a shirt. She did not disclose the colour of the trouser or shirt. But during cross examination she said that the accused was wearing a kaptura and a red jacket-and that he was a bit brown and not so fat (Mwekundu kidogo;na si mnene). But in her statement to the police which was recorded on 9.1.97 before the Identification Parade on 16.1.97, she desribed the accused as being mrefu, mweusi, mwemba.mba 11 (Tall, black, slender). She did not mention any kind of dress that the accused was wearing. It was on 16.1 .. 97 after the Identification Parade when her additional statement was recorded whereby she said the accused was wearing a suruali whose colour she did not know, arid a red jacket and that he was tall and slender. At this juncture one can pause and ask oneself as to why she did not sa:y all this on 9.·1.97 when her memory was only one da:y old and instead said so a week later if she had really identified him properly at the scene'? PW1 also told the Court as to what means of light which enabled her to identify the accused~ She said it was through moonlight and electricity light from a nearby house. But in her statement to the Police recorded on 9.1.97 she said she identified the accused through the light of a torch which the deceased had. She did not mention anywhere about moonlight or

4 electricity light. Again one can pause and ask oneself as to why she ommitted those crucial source!=> of light and instead she mentioned something else which nobody else had mentioned? At any rate the light from a torch of a victim who is being seriously attacked can hardly be a good source of light for identifying properly somebody who is perched Hupenuni• 1 some distance from where the torch is. PW1 said she identified Kumeho and Abdallah Soni and mentioned even their names to the Police on 9.1.97. She said she could not know the accused because that was her first time to see him. At a later stage she said she knew the accused as either his mother or his sister was married in the same clan where she was married. But she said she came to know about this relationship later. It is the Court's holding that she never knew the accused before that inciderit and that under the prevailing c.ircumstances/conditions the possibility of a mistaken identity was imminent. The 3rd assessor Abdrahman expressed his doubt on whether it was possible for moonlight to illuminate 1 iupenuni 1 ' to an extent of enabling PH1 to identify the accused. I share the same doubt., The authenticity of PW1 identifying the accused at the Identification Parade has also some .. colours of doubt., Why did she insist on a very faint small old scar near the accused's nose which she had not seen at the scene? The possibility of being told from other sources to look closely at the accused's nose for that scar for easy identification cannot be overruled. PW1 admitted that the whole drama terrified her to her knees because her husband was absent. It is my humble vic,v that under the above circumstances, it was not ea1:,y for PW1 to identify properly the accused whom she had seen for the first time. It is therefore my holding that the conditions existing at the material time were not favourable to PW1 for a proper identification of the nccused whom she had never seen before. As far as PW2 Swalehe is concerned, he told the Court as to how he identifieq th~ accused. He said when he returned from buying cigarettes, when he was about 30 paces away he saw 3 men beating the deceased using bottles. He identified two of them to be Kumeho and Soni. But he could not know the third one who was new to him. He was tall, slender and brown. Later he found him in the Police lock up where they were locked together. It was at that time that he came to know the name of that man as Rashidi Fikiri (Accused). He said he identified him at the scene by his appearance as he was tall, s:I.ender and brm,m. He said he was so terrified that he could not concentrate on what type or colour of dresses he was wearing. He mentioned moonlight and electricity light from a nearby house to be the source of light which enabled him to see the accused clearly ••• /5 •••

5 well, although it was his first time to see him. He mentioned also electricity light from a milling machine when the assaillants passed nearby while dragging the deceased. from Nangwala area to Luchingu area. I have carefully considered this evidence. But it would appear that this witness who had been drinking pombe from around 6 pm. till around 9 pm was probably drunk thereby making some decisions which a sober person would hardly make. He said he followed the assaillants at a distance until when they crossed the Newala/Masasi Road ax1d headed for Luchingu area where there was darkness. He fearod to go there. Then he decided to go back to the pombeshop without reporting anywhere. At the pombeshop \ ~ he never reported to anybody. He never reported to anybody throughout that night except to the deceased 1 s girlfriend. This behaviour was contrary i to the general behaviour of an ordinary sober person. Since PW2 was drunk and terribly terrifid, and since he was reasonably far from the scene he could hardly identify properly the accused whom he had never seen before that day. It is therefore my humble holding that the conditions at the material time were not favourable for a proper identification of the accused by PW2, and that PW2 did not identify the accused properly. His identification at the Identification Parade did not make things any better because they had been in the same lock up on the same suspecion for between one to three days. The question of identification of culprits is very crucial in cases of this nature. And Courts have warned in a-number of cases that eviden•~ of visual identification is of the weakest kind and most unreliable; and that no Court should act on evidence of visual identification unless all possibilities of mistaken identity are eliminated and the Court is fully satisfied that the evidence before it is absolutely watertight - WAZIRI AMANI Vs R. (1980) TLR 250. Since in the present case the evidence on the accused's identification is not absolutely watertight, I am inclined to accept the accused's defence of ALIBI that he was not at the scene of crime but at home and that he did not participate in causing the death of the deceased. In view of this I join hands with the unanimous opinion of the gentlemen assessors that the accused is not guilty as charged. He is hereby found not guilty as charged. He is acquitted accordingly. Ii I , / I I I s. N. KAJI JUDGE 20.5.99 ••• /6 •••

6 .. Date: 20.5.99 Coram: SoN. Kaji 1 J. Mr 0 Kumwembe (ADV) holding briefs for Mr. Mlanzi (Adv) for the accused Accused - piesent in person Assessors: 1. bmar Issa - present 2. S?1-um Ally - present 3 •. 11..bdrahaman Sht>shi _;, present B/C: Ladda (Mr) pourt: Judgment has been delivered in open Court in the presence of the above personalties. Accused aquittedo f l r . -"' ...... •--.,· ' s. 'N. Kil.JI J1JDGE