(CORAM: LUBUVA, J.A., MROSO, J.A., And RUTAKANGWA, J.A.) 1. RASHID ALFRED KUBOKA ] 2. GERALD JUMA ].. APPELLANTS VERSUS THE REPUBLIC...

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1 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 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 24 th day of May, 2004 in HC Criminal Appeal Nos. 225 & 226 of 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 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 Court of Geita District. Their appeals to the High Court were dismissed and they have come to this Court on a second appeal.

2 2 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 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 11 th 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 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.

3 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. 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 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 3

4 4 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 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 12 th 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 1 st 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. 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 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 2 nd 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

5 against him from the washing of the blood 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. 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 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. 5

6 6 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. 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. DATED at DAR ES SALAAM this 30 th day of March, D.Z. LUBUVA JUSTICE OF APPEAL J.A. MROSO

7 7 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