19860619 TZCA Dar es Salaam2

l --- IN THE COURT OF APPEAL OF' Tr,NZANIA AT MWANZA CORAM: CRH'iINAL APPEAL NO. 88 OF 1985 EltASIMUS GRATION & OTHERS. APPELLANTS VERSUS 1'HE REPUBLIC. • 0 0 e ._ • RE.3PONDENT (Appeal _from the convictign of the High Courr of Tanzania at Mwanza) (Mwalusanya, ·J.) dated the 15th day of October, 1985 in .££.~minal Sessions Case No. 213 of 1984 JUJGMENT OF 1•HE COURT MUS'l'AFA, J.A.: Th~ deceased was kill e:l in the course of a robbery during the night. The house in which the deceased was was broken into 7 and the goor was smashed. The deceased was living in the house with members of his fa~ily. It_was a_big group of ...• robbers._ The decea§ed was s~r-•ngled ;..o ieath and hi§ mandible was fr~ctured. In the course of ,.b~ robbery many articles were stolen. The prosecution_case against the 4 persons who ~ere eventua11y __ charged _with murder depended basically on the identification of the robbersa Of the 4 persons charged, o~Q was acqui,.t§rl. and _3 persons, being Accused 1, Accused 2 '~nd tccuseg 4 at the 1-rial, were convici-ed of murder al)d ser,tenced to death. They are appealing against ,.heir convictions. • • • • o • /2 C • . 2 We will deal wi+-h_Accused 1 firs+-. Accused_ 1 made a confession +ha+- he had +-aken par-1- i• +he robbery t-o P. ~J.1 1 +-he Village Chairman. Accu§ed 1 i~plica+-ed a number of o+-her people who were +-hen arres+-ed by +-he villagers. ii ,,, Accused 1 was_iden+-ified by several inma-1-es in +-he house 'lj ii: ' ·I•'. which was l;>roken in+-o. P.W.::J, P.W.5 and P.W.6, iden+-ified Accus,~j 1 . . . as ODe of th~ robbers. P.W.4 iden+-ified Accused 1 by his yoice. All +-hese witnesses knew Accused 1 well before +-he !n.ci-:ient- I;- was alleged +-ha.;.. +here was some mo_o.o.ligh+- _+-ha+- nigh+-• and +-ha_+- :·11, +-he group of robbers were flashing +-heir +-orches in +-he houie 1:i'' in +-heir ac+-ivi+-ie$. The robbers stayed in +-he house for a·-1- leas ... ½ an hour. One wi+-ness P.W.5 was ord,:red +-Q cover h~rself; stie. refused to do so aod WQS injured as a r~sul-1-.P.W.5 s+-a+-ed +ha ... §he had full oppor+-uni+-y +-o see Accused 1. ~.W.3 and P~W.5 w~rc_ +-ied up, ang P.v1.5 was cover~d wi+-h a blanke+-. P.w.s s-1-a1.ed =ha+- he managed t-o peep under +-he blanke+-. Accused 1 had caught- hold of P.W~3, and P.W.5 clearly_saw Accused 1 1 P.W.1 heard Accused 1· +-elling +-he deceased -1-0 show where the money was and P.W.4 knew Accused 1 well and wa. t'afliliar wi+-h his voice" __ As regargs Accused 2, P.W.3, P..W.s and P.W.6 were po$i-1-ive -1-ha-1- +-hey iden+-ified_him as one of +-he +.obbe~s. P.W.3 men-1-ioned Accused 2 gS one of_-1-he_robbers immedia+-ely +-o +-he villag~rs who had ga+-hered af-1-e~ +-he robbers had lef+. P 1 W.3 s+-g+-ed +-ha+- Accused 2 was one of +-he robbers who t-OOk away +-he ma+--1-r,""ss and ~dings from +-he house. P.W. 5 was posi+-ive he could i·ien+-ify ;•o••••/3. • . : i' . 3 - 2 robbers among the grou~ one of whom was Accused 2. P.W.6 identified Accused 2 clearly. She said she was tied with ropes by Accused 2. As regards accused 4, P.W.3 stated that it was Accused 4 who got hold of a banana rope and tied up P. W.3~ P. W.6 was definite that she identified Accused 4 as one of the robbers that night. It must be notod that P.W.3, P.W.4, P.W.5 and ~.W.6 were 'I ,,_. all -very familiar with .Accused 1, Accused 2 and Accused 4, who were either fellow villagers or lived nearby. There was II I moonlight and torch 1 ight in the i house, and the robbers were '· in the house collecting articles iiI, and things for at least half 11: an hour •. Despite the fear that I! the inmates of the house must ~sad:.-m&.s.:, ,,i1 have been suffering from, there certainly were favourable condi ti<r:ns--for identification; especially of familiar and well known individuals. A large group of robbers had entered the house, but P.W.3, P.w.5, and P.W.6 only identified those-whom they knew, and did not identify any other. Accused 3 who was acquitted at the trial, was not identified by any inmate. The Judge was satisfied that Accused 1 had confessed to P. W. 1. He was satisfied that Accused 1 was properly identified by .,. P.W.J, P.W.5 and P.W.6. He was also satisfied that Accused 1 'ji ,',11 " was identified by P.W.4 by voice. We agree that the convictien of Accused 1 was fully justified in the circumstances. In regard to Accused 2, in agreement with tho judge we think that reliance can be placed of the identification given by P. W-3, P. W.5 and P. W.6. We believe that these 3 witnesses had told the truth, that there was no possibility that they could have been mistaken. Similar remarks apply to Accused 4. We have no reason at all to doubt the evidence of I-.W.3 and P.W.6 in any way, either as to their veracity or as to the possibility of mistake on their part. • . J I I,,, ' ' i i '! I I I I' .,'.![; " 4 In eur assessment, the trial' judge !'11:iS right to ,have ..· I .. convicted the appellants, Accused, 1, Ace.used 2 1 Accused 4 as they h:3ve all been properly identified a·~ part of Ithe group of robbers who had broken into the house. of the . . . . .. I . deceased, and in the course of the robbery, killed tnl•,e deceased. The appeals of Accused 1, Accused 2 and Accused 4 are dismissed. DATED at Mtli,NZA this 19th day of June, 1986. A. MUSTAFA JUSTICE OF APPEAL L. M.. MAKAME JUSTICE OF APPEAL R. H. KISJ\.NGA JUSTICE OF APPEAL I certify -~hat this is a true copy of the original. ·~,1"Y ( J. H. MSOFFE) 1 DEPUTY REGISTRAR •