19841124 TZCA Mwanza8

IN THE COURT OF JIPPEAL OF TANZANIA AT MWANZA (CORAM: 1al4.. C.J0, Mustafa, J.A. and Kisanga,, J.A.) CRIMINAL APPEjkL NO0 53 OF 1983 B E T W E E N PHILIMON 5/0 PAULO 0 0 0 APPELLANTS ) 0 0 0 0 0 0 HILLARY s/o AUGUSTINE)0 A N D THEREPUBLIC .........."..o.00 RESPONDENT (Appeal from the conviction of the High Court of Tanzania at Bukoba) •( Bahati, J. dated the 31st day of October, 1983 JUDGMENT OF THE COURT MUSTJFA, J0A.: The deceased was killed when a gang of robbers broke into the house wher. she lived with her husband and .P0W.1, and family 0 A gang broke into the house at about 9.00 p.m. and the deceased, who was getting into the main house from an outside kitchen, was caught by the robbers, and was strangled to death0 P.W.1 was in the house, in a room, with a koroboi lamp, when the deceased was entering the house, and thstified that he saw both the appellants attacking the deceased0 POW.1 could see what happened by the light of the koroboi lamp 0 The two appellaits then rushed in and out off the llht and attacked P.W.1. P.W01 told the appellants where he had hidden the money. The money, amounting to shs. 8,500/-, was hidden in the ceiling. The appellants took the money and went away. P.W.1 thereupon sent for the neighbours. P.W.1 told the neighbours who gathered that the two appellants were among those who had taken part in the robbery and had attacked him and his wife. The deceased by then had died0 -2- - 21-.W.2, a daughter of the deceased, was also in the house on the material night. She saw the deceased being chased by those who had broken into the house, and she saw the deceased falling down0 She was in the sitting room where there was a koroboi lamp burning. She could see by that light what was happening. She ran into another room, a bed room, and could Sc the two ai:-'pellants strangling her mother. The two appellants then went to P.Wo1 and beat P.W.1, and then P,W.1 told the two appellants where the money was,' and one of the appellants, Philemon, who had a torch used it to collect the money hidden in the ceiling. P.'J.2 testified that she could see the two appellants by peeping out of - the roomin which she 1, 7os hiding, and she stated that she saw arid - recognised the two appellants before they kicked and put out the korohoi lamp 0 - The two appellants were co—villaqers of P.W.1 and P,.2, and were well known to both of them. In fact they were neighbours. P.iJ.2 ran out to a neighbour P,W.3, and told P.W.3 that the two appellants were among those who had attacked her home, and whom she recognised. The appellants both gave evidence on oath, and called notnesses. Both stated. that they were at their own home at the material time, and were not involved in the robbery. In fact appellant Philernon alleged that he was not arrested until two Jays after the incident, and that he was arrested by the Police, not by the villagers. Appellant Hillary also alleged that he was arrested by the Police, not by the militiamen or the villagers 0 - P.W.4 1 a Police Officer, testified that he was the investigating officer in the case, and when he went to the villuga in question, he rearrested the two appellants, who had been token into custody by the villagers together with a number of other peopic • . -3- as a result of the robbery and the killing. That piece of evclence clearly contradicted the allegation by the two appellants that they were not taken into custody by the villagers or militiameo. The judge reviewed the evidence and concluded that P.W. 1, and especially P.W.2, were in a good position to identify the two appellants as there was a koroboi light at the time the deceased was attacked, zind that they had known the two appellants well as they wer neighbours0 P.W.2 had the opportunity of peeping at the two appellants when they were attacking P.W.1 and demanding money from him, and later collecting the money from the ceiling with the cii of torch light. P.W.1 also had had the opportunity of having to explain to the appe3lants where the money was hidden0 The judge found that the circumstances for identification were favourable and that both P.W.1 and P.W.2 were truthful witnesses 0 He disbelieved the alibi put.up by the appellants as he believed that P.W.4 was 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 later 0 Mr. Rutakolezibwa for the appellants has submitted before us that the identification of the appellants by P.W. 1 and P.1402 was not satisfactory because the attack happened so suddenly and in such circumstances that P.W.1 and P.W.2 cguld not have properly identified the assailants. But in our view, the trial judge properly directed himself on this issue, and taking into account all the circumstances, we do not think that the trial judge erred in accepting the evidence of P.W.1 and P.111.2 as true and reliable. We do not think the circumstances for identification in this case were unfavourable. The alibi put forward by the appellants was rightly rejected as untrue. 0 0 0 -4- We ore satisfied tht the conviction is sound0 The appeal is dismssed 0 * DATED at MWANZ ' this 24th day of November, 1984w 0 1 F. L. NYALALI CHIEF JUSTICE A. MUSTAFA JUSTICE OF APPEAL R. H 0 KISANGA JUSTICE OF APPEAL I certify that this is a true copyof.the original0 0 • '- B0 P0MOSHI SENIOR DEPUTY REGISTRAR