19841124 TZCA Dar es Salaam6

IN THE COUHT OF APPEAL OF T,\NZANI.i-\ AT iYi\'11\NZA (CORAM: CRIMINAL APPEAL NOo 53 OF 1993 BETWEEN 1. PHILIMON s/o PAULO oo oooooooQOO APPELLAJ\!TS 2o HILLARY s/o AUGUSTINE). AND THE REPUBLIC • o ••• ■ o •••• o ■ ■ ■ ■ ■ • RESPONDENT (Appeal from the conviction of the High Court of Tanzania at Bukoba) ( Ba hu ti , J. ', ) dated the 31st day of October, 1983 JUDGMENT OF THE COURT MUSTii.FA, J oA ■: The deceased wus killed wh,~n a gang of robbers broke into the house wher'- she lived with her husband and P., W., 1, and family. A gang broke into the house at about 9. 00 p.m .. ani the deceased, who was getting into the main house from an outside kitchen, was caught by the robbers, and was strangled to death. P.Wo1 was in the house, in a room, with a koroboi lump, when the deceased was entering the house, und testified that he sav1 both the appellants ::ittacking the deceased. P. Wo 1 could see what happened by the light of the korob,oi lamp., The two appella:1ts then rushed in and out off the light and attacked P. W. 1 ■ Po W. 1 told the appelL:m ts where he had hidden the moneyo 1 The money, umounting to shso 8, 500/-, was hidden in the ceiling. The appellants tuJk the money and went away. P.W.1 told the neighbours P.W.1 th,~re1;1pon sent for the neighbours. who gathered thut the two appellnnts were among those who ho.d taken part in the robbery .::ind had utt::icke~ J him and his wifeo The deceased by then hud died., eooo/2 .: I I 2 PoWo2, a daughter of the deceused, H2S also in the house on the material night. She saw tht~ deceased being chas8d by those who had broken into the house, anj she saw ~he dece:1se::l falling downo She was in the sitting room where there was a koroboi lnm9 burning 0 She couU see by that light what was happening. She ran into another room, □ bed room, and could se~ the two app,~llants strc1ngling her mothero The two nppellants then went to PoWo1 und beat PoW.1, and then PoWo1· told the two appellv.nts where the money w,1S, and one of the appellcrnts, Phi lemon, who hcid a torch used i t to collect the money hidden in the ceilingo P ~'1 ° 2 0 testifh.xl. thc.t she could see the two appellants by peeping out :>f the room in which she L:JS hid•ing, :in:l she st.::ited that she saw c.1n:l recognised the two appellants before they kicked and put out the koroboi lampo The two appellants were co-villagers of PoWo1 □ ni Po;:,o2, and were well known to both of themo In fact they were neighbours o :1ppellants were among those who hud attacked her home, and wh Jm 1 she recognised .. The appellants both gave evidence on o.:tth, und calle::1 no 1.ii.tnesseso Both st ..ited that they were at their own home at th•:.: material time, anJ were not involved in the robberyo In fact appellant Philemon alleged th3t he was.not arrested until two lays after the incident, and th □ t he was arrested by the Police, not by the villugerso Appellant Hillary also alleged that he was arr,~sted by the Police, not by the militiamen or the villagersa PoWo4, a Police Officer, testified that he was the investigating officer in the case, ond when he wer.t to the villug~; in questici1, hu rearrested the two uppellants, who h3d been token into custody by the villagers together with a number :)f other people <> o o o/3 • ., 3 :, s ci rGsul t of the robbery and the killihgo Thc:i t piece of evijer:cG clearly contraj icted the allegation by the two /3ppellants that they w.:::re net taken into custody by the villagers or militiamen •. The judge reviewed the evidence and concluderi that PoWo1,and especially Po1tlo2, were in a good position to identify the two appellarits as tl1c~re Wi::IS a koroboi light at the time the deceas,2d was ntto.cked, end that they hud known the two c1ppellants well cis they wer•:; neighbourso Pa Wo 2 had the opportunity of peeping .:it th-2 two a~pellants when they were attacking PoWo1 und dem,mding mon2:y from him, and later collecting the money from the ceiling with the niJ of torch lighto Po W. 1 tilso hud had the opportunity of having to explain to the appeJ lants where the money was hiddeno The jud g.:.: found thct the circumsb:inces for ijentificution were fovourublc and thc.1t both PoWo1 and P~Wo2 were truthful witnesseso He iisb(~li•..:!V•-::d the alibi put up by the appellants as he believed that P .. W 4 wus 0 truthful and that the appellants had been taken into custody by the villagers shortly after the attack, and not arrested by the police some two days latero Mro Rutakolezibwa for the appellants has submitted before us thut the identificution of the appellants by P .. Wo1 and PoWo2 was not sntisfactory because the attuck happened so suddenly and in such circumstances that PoWo1 und PoWo2 couli not have properly' identified the assailantso But in our view, the trial judge properly directeri himself on this issue, and taking into account ull the circumstances, we do not think that the trial judge erred in accepting the evi:ience of P.;Wo1 and PoWa2 as true and reliableo We du not think the circ'Umstances for identification in.this case were unfavourableo The alibi put forwurd by th2 appellants was rightly rejected as untrueo 0. 0 ,./ 4 • We nre satisfied th::it the conviction is c;ound o The Di,TED at MWANZA this 24th J.::iy of November, 1984. 0 F o Lo NY.-1.LALI CHIEF J·usTICE Ao MUSTAFA JUSTICE OF APPEAL . ' Ro Ho KI SAN GA JUSTICE OF APPEAL .· ,e· SENIOR D.EPUTY REGISTRAR