19881007 TZHC Dar es Salaam

. Il'J 1.l'IIB TIIGE COtBT OF TAHZAIHL _1\j1 DAR ES SALAAM APPELL\11.'E JlJ1USDIC'I1ION EIGE: CotJR.T CR.Il-jHJAL APPE~1.L HO. 42 OP 1988 ORIGIIJAL CRH1I!IAL CASE NO. 1122 OF 1987 0:;]' T:::E DISTRicri' COUR!I1 OI:1 ILA.LA DIS'l1RICT AT KI'JTJI::OI'il J.l\.MAD 111. IvIHGWAYA •••••••••••••••••••••••••••• < •• Appellant versus TI::E l.J1iIIr.I1ED JEFTTBLIC ••••••••••••••••••••••••• o •• Respondent JUDGEHENT Ml'JZAVAs J .K • In this appeal the appellant was cha1·ged with and convic-ted of' robbers ~-T~,\1~ of 285 and 286 of the Penal Code and sentenced to 8 yeai'S imprisonment. Dissatj.sfied by the finding· and the sentence of the lower cou:::'t ).1e has appealed to this Com'to In his submission befoTe this Court Mr. Mwajasho 9 learned counsel for 'G}1e e.ppellant 9 argu.ed that the identification o:f the appellant by nu, Francis lfaungu., as one of tl1e robbers left much to be desired as_1 it was argued J.;he offence waG committed at .n;i.gb.t a...'ld that the witness did not tell tl1e cour·t how he could identify the appellanto 'The learned counsel argued that the trial magistrate should have approached the evidence of identification with caution and t}1at if he had axi.y doubt in his mind he ob.01.2.ld have !'C:f.!,.:l7cd t:.~o doubt in .s>,ppe 11:-:i.nt 1 s favour and acquit h.imo Secondly it was subrai-bted that thG lbwer coc.i.rt did not consider appella.i.··-rc I s defence. 'l1he court was asl::cd to 2.llow the appcaL In rebuttal I'1r. Komeye, learned state attorney 7 supported the conviction on the grou..,d that although the offence 1·ras committed at 7 p .. mo tJ.:.e cor:1plaina.11t 7 (PWl) 9 haC::. sufficient time to identify the appella.."l'lt as one of ·l;!.1e Tobbers. It was furtJ.:.er argued t:1a-c it was the appellant , who looked for buyers of· t~1e land rover which llad 1:>een robbed from jj'rancis 9 PWl. 0 0 0 ./2 2 I agree with the learned cotmsel for the appellant that where the evidence implicating an accused is entircl;,- o:f identification it must be absolutely water-right to justify conviction., That this is the law is evident from the decision in SEBWATO VR fil60) E.A,; 174,o This decision was quotted by this ve~r Court in Er,TI:Ii:J:JUEL TU:.IB011El.c"S VR . ( 1960) H .c .DO 144 and in WILSON s/0 0110 VR (1968) rr.c.n. 183., The question therefore to be decided by this Court is whether, as a1·gued by tl1e learned defence co msel 5 t!.1e appellant was COl1ticted 1 .. wholl;;r on the evidence o:f:' identification by the complainant 9 P1-Jl,; There was evidence that the complainant 9 (PWl), was on 5/6/87 d:riving his motor vehicle 9 a limdrover 9 along rforogcro road. a·c about 7 p.m., when he was robbed of his motor vehicle at Ubungo trG.ffic lights., Later in the san1e month t11e complainant identified t:1e accused in an identification parade as one o:f tl1e robbers o If this was the only evidence against the appellant and taking into accotmt that the of£'ence was -committed at.night it could be argu.ed 9 and 9 in my view 9 rightly so 9 that conditions .for p:::-oper identification of the appellant as one of tl1e robbers were lacking., But,· with due respect to the learned defence cou.nsc1 9 there was other independent evidence wl1ich tended to show tl,.at ·i:;;_1e complaina.YJ.t could not have been mintaken in his identification of tl:e appeila..-rit as one of the robbers., '111uis independent evidfmce is fo-u.nd in the testimony of Hamdan Salehe - (PW5) who testified in the lower court tl,.at the appellant and another person had approached him on 16/6/87 offering to sell a landrover to himo Ee suspected the landrover to be stollon property and reported to the policeo 'l1l.1is led to the arrest of the appellant as he, and )::.is -cwo accomplies ~ were negotiating to sell motor spare-parts., D3810 D/C Issa (PW2) gave evidence how he that he r,./C4I> arrested the appellanto The evidence of Ja1:1al Bo:·,..-,,~ PW4 7 was!,pi"6SeLt at the time the appellant was arrested as he was selling motor- . vehicle spare-parts., And, to crown it all i·~ was the appellanJ; who led the police at Ikwil·iri to where the land rover was hidden in a bush., 3 The land.rover was 12,ter identified as tLc one robbed from the complainant on 5/6/87 o · 11hat being the evidence t:1e learned trial magistrate was, in the view of this court, entitled to come to I the conclusion tl1at the complainant, (PWl), co'uld not have been mistaken in his identification of the appellant as one of the thieves~ Even if 9 for the -sake of argument, the identificatj,.on was im11roper, the appellant's behaviour oi' finding buyers to buy -che stolen motor vehicle and his leading ·U1e police to where it was hidden ii1 the bush made him a principal offender :mdor section 22 of the Penal Code o On the evidence I, witb. respect, agree wit!1 the learned state attorne;t that the a1.ipellant was rightly convicted of t;.1e offence of robber,y with violenceo As for the sentei1ce imposed; it is severe taking into accou."'1.·c that tb.e accused was a first offender, but as it was held b;f tb.is court in the case of RV JONA'I'IIA.HI Cr;J]:fAlffiE ( 1968) H.::; .D.257 "this court will not interfere in a matter of sentence ux1less it is so excessive as to the unsustainable 11 o imcl 9 if I "J.;:--,y add, offences of this nc1,tUJ.,e are o.larmi::1gly on the increase. Courts of law wili be failing in their duty if they did not treat such offence with the seriousness they deserve. The sentence of eight years imprisonment is not so manifestly ~xcessive as to call for redv.ctior:! by this Cov.rto The sentence which need confirmation is hereby confii"i:led. Dar es Salaam 7th October? 1988 I