lauden mwakitalu mwakitwange vs the republic 1996 tzca 17 20 october 1996

IN THE COUHT OF APPEAL 07 TANMKIA AT KBBTA (COPJLMs KNZAVAS. J.A.. IZTALILA. J.A.. Ar.d UIBOTA. J.A^ CHIIIIiTAL .APP1AL lie, 14 5 W 1994 m ST-ISRl LAUDHN MTAICITALU IliTAKElWMGB. .......... APPELLANT AKD THE 3SPUSLIC. . . . . . . . . . . . . . RESFOIJDSITT (Appeal iron the Conviction and Sentence of the High Court of Tanzania at Tul-cuyu) (Kkude, J,) dated the 18th day of May, 1994 in Criminal Sessions Case KTo. 25 of 1992 JUPGHCTT OP TIIS COUHT liP B D V A , J «A . s This is an appeal against the conviction and sontsnc-e of thl High Court (Kku.de, J.) sitting at Tukuyu, ITbeya, The appellant was changed, with and convicted of the offence of attempted murder contrary to Section 211 of the Penal Code* He was sentenced to ten (fil) years imprisonment. The incident took place on Christmas Day, 25 th December, 199^ a"t Mpumbuli Village, Bungwe District I'lbeya 3-egion* The undisputed facts •were that in celebrating Christmas, the appellant together with Jacob Kwakitwange Mwandimbile5 (hereinafter referred to in this judgment as Jacob), Paul Chagonja (P"»1) and Henry Andalwisye (P¥*2) among others from within the village of Hpumbuli had gathered at tha house of Joshua John Mwakilasa (PIT.3) where there was disco music arid food* At the end of the celebrations at about 10.00 p.m., the guests left for their respective homes# In the same direction went PW.2 followed by the appellant who was in the company of Jacob Mwakitwange Maandimbile. who, at the trial was also charged with the appellant. On the way Pw+2 was suddenly given a blow on the head from behind* He fell down and thereafter was stabbed by the appellant with a knife three times on the stomach and once on the chest. The appellant and Jacob Mwakitwange Mwandimbile ran away. PIT.2 Trent back to the house of Joshua John •«»*/2 - 2 - Mwakilasa (PW.3) where .he reported to hava been, attacked, by the appellant and. Jacob, PW.2 was taken to hospital where he was admitted fox a month* The matter was reported to the police an I the appellant was arrested from his home the same night. He was charged together with Jacob for the offence of attempted murder* Before the trial court the appellant and Jacob raised the defence of alibi. They denied, visiting the house of Joshua John Mwakilasa PIT*3* They claimed to have been at the house <xf Abraham. Jiwandim.bile (D¥,2) on 25.12.1991 from 1.00 p*rn. to 10.OQ p.m« After considering the defence raised^ the learned trial judge rejected the defence of alibi. He held that the appellant -and his eo—accused had. been identified sufficiently by PIT.2 and P!f,3 to have been at the house of PW#3 and that P¥*2 identified them at the time of the attack* The appellant was therefore convicted as charged and. was sentenced ta ten years imprisonment* As regards Jacob, the co-accused the trial oourt held that though he was present at the time when PTf.2 was attacked3 he did not take part in the attack. He was acquitted. The appellant is appealing, against- the conviction and sentence, Mr. Kwangole, learned Counsel for the appellant has raised tiro grounds of appeal, namelys (i) That the learned trial judge erred in law and facts in holding that the appellant was positively identified by P¥.2. (ii) That the sentence was manifestly excessive in the circumstance^. of the case. At the hearing of this appeal, Mr. Kwangole- argued rather forcefully that P¥.2 and FW*3 could not recognise the appellant aa the- assailant of P¥»2 because it was a dark -light* That as P7J,2 was struck abruptly from behind and there was no talking, Mr* Mwangola a.rgued4 it Has possible that P¥*2 mistook the identity of the appellant* he saidj it was • •* */3 - 3 - therefore unsafe to base a conviction on such evidence in a criminal charge when the circumstances were not favourable for conclusive identification. Secondly, Mr* Kwangole submitted tliat the appellant being a young man of 22 years, a sentence of 10 years imprisonment was, in his view, manifestly excessive* ,'Ie prayed for its reduction* For the respondent} Republic Mr* Kulokozi, learned State Attorney appealed* He supported the conviction an the ground that the appellant "•as sufficiently identified by FIT*2 and PTi.3* stated that though it was night time, it was a normal dark night in which it was possible to identify a familiar person* It was hxs line of argument that FIT*2 and P¥*3 were familiar to the appellant with whom they lived in the village. Furthermore, Ilr* liilokozi submitted that as PIJ*2 had left the house of Pff.3 followed by the appellant and Jacob, he (PW.2) knew that- the appellant and Jacob who were behind him after the celebrations at Ptf*3’s house* Mr, Kulokozi also stressed that the fact that the appellant was found by FJ.1 Paul Chagonja* the police officer hiding under the bed is a telling factor of a guilty mind. We have anxiously considered these submissions* On the question of identification, with respect, we are unable to accept Mr. Mwangole^s submission that there was mistaken identity of the appellant* We agree that there is conflict between the evidence of P¥.1 and PW*2 regarding the darkness of the night that day. On reccrd, one says it was not so dark as not to be able to see clearly without a torch, the other says it was so dark that it was not possible tcv see clearly* Both were prosecution witnesses and so? their evidence is suspect to doubt* However, it is our view that this was not the only evidence* For it is clear from the record that after the celebrations at the hou&e of PW.3, P¥»2 and the appellant together with Jacob were the only ones who left in that direction. 'There is no evidence ta show that they were joined by any other person on the way until the time, of the attack. * * * %/4 - 4 - In such, circumstances, it is our view that PTT*2 -quite clearly knew that the attackers were the appellant and his companion, Jacob* the co—accused •who was acquitted* U'uxtlier, it is also in evidence that as the appellant was attacking PIT,2, Jacob, the co—accused was heard "by PTf.2 telling the appellant "leave him" * The appellant and Jacob being familiar to F!?»2, we agree that PI\T«2 was in a position to recognise the voice of Jacob who had been with PTf.2 and the appellant at Flf«3’5 house feasting together* As such, th§ stabbing having taking place at close proximity, we agree with Mr. IJulokozi that P^.2 wa^. in a position to recognise th© appellant as the assailant# There is also the evidence of Paul Chagonja (Plf^1 ) the investigating officer. From his evidence, he stated that -when the incident was reported to the Police Station the same nighty Jig visjt^d the appellant’s house* There, he found the appellant's house ilojr cl^sedj upon loioc’'-ing} appellant's wife said, the appellant was nat around^ he wag Out, That upon his insistence and searching with a taroh^ the appellant was found hiding under the bed. As to why the appellant, waa hiding Mr* liwangole in a rather unusual manner, explained that it was due to fear of the police and that the appellant was not hiding but was putting on rubber shoes. With respect,, Hr, Iiwangale's explanation is far fetched# If the appellant was innocent, why should he hide under the bed at that time* Furthermore, as regards his ’ frifej if there was nothing suspicio'as against her husband, the appellant, why should she tel} that the husband was not in the house* At any rate,, at that "time na «scjinunica-tion had been made to the appellant and his wife abont Rf.&'s stabbing, Go, it is difficult to understand why the husband, and wife ware making the effort to hide from the lair enforcing agent (FTf.1). This, we are convinced, is yet another piece of evidence which, links the. appellant with the attack on P¥,2. On the evidence as a whole, we are in agreement with Mr* Kulolcozi learned State Attorney that there was sufficient evidence upon which the learned trial judge found that the appellant was sufficiently • « * */5 - 5 - identified. ¥e do not agree with Mr. Mwangole*s submission was mistaken identity. Tie reject the ground-on. insufficient identification as "baseless. As for sentence* it is our view that. this, .ground has no merit at all* The fact that the appellant is a young man is not sufficient ground to warrant this Court's interference with the trial Court’s discretionary powers on sentonce. As corrootiy «iai*ed by the learned, trial judge, this was a "brutal attack on PIT*2 w Iio-sp- non hang outside the stomach* F«u2 was lucky for "the injuries h^reeeived could have led to his. death.. Having regard to the. fact tha-^ the offence carries a maximum of life imprisonment* we ar^.no'fc convinced that a sentence of ten (10) years imprisonment, oan in any way "be said to be so manifestly excessive as to warrant this Couri?^L This ground also fails. For the foregoing reasons, tho appeal is disaia&od i». entirety* DATED at I-IHETA this 2<3tix day of October, *996 » N.3. JKZAVAS JUSTICS 0? APPEAL L.M, KPALILA JUSTICE or APPEAL D.Z. LUBUVA JUSTICE OF APPEAL I certify that this is a true copy of the Original* 3HAI-KZALI ) PEFUTY HEGISTHAR