19960605 TZHC Dar es Salaam5

; ' • < • IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM ' . ... APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO. 87 OF 1995 • (ORIGINAL CRIMINAL CASE NO. 1477 OF 1992 OF THE DISTRICT COURT OF !LALA DISTRICT AT KISUTU BEFORE TEEMBA ESQ., RESIDENT MAGISTRATE}_· ALMAS AYUBU RAJABU ............ ·........... APPELLANT VERSUS THE UNITED REPUBLIC ..................... RESPONDENT JUDGE ME.NT KALEGEYA, PRM (Ext.Jurisd.) · · Finding himself in conflict with the law, having been convicted for Robbery with Violence c\s 285 and 286 of the Penal Code and sentenced to 15 years imprisonment and 12 strokes of corporal punishment, the Appellant, Almas Ayubu Ra jab, pr,ef erred this appeal .challenging the finding and sentence meted out against him by the Ilala District court at Kisutu, Dar es•Salaam. A·substantial part of the relevant facts of this case which ·· is simple and undisputed runs as follows: On 22\11\92 at about 8. 00 hrs, PWl {Anna} who works with Insurance Coy in Dar es · Salaam and supplements her income by importing maize and potatoes for sale from Mbeya, was going to Mnazi Mmoja Bus stand to effect transportation charges to tupelo Bus from Njomb'e\ for having felled her potatoes. On the way_," near the. monument" one youngman holding a plastic bag and walking side by side wi'th PW1 called upon three youngmen who were infront of her to hurry up upon which utterance one among them proceeded .and pounced on her. A struggle between the two ensued and she called for help without success. The youngman cut short PW1's resistance by producing a knife from his trousers, struck her with it on th~· face and this subdued her aff6rding the youngman.to snatch her small purse which contained cash shs.40,000/= stacked in an envelop, a khanga and run away. PW1 chased the youngman while shouting who in the process,of running threw away the envelop which w?s picked up by members of his gang. Members of the public noting this pursuit intercepted the youngman, administered a beating on him until shortly after he was rescued by a Traffic police officer'(PW3} who was on patrol nearby. The empty, black stripped and dotted purse and the khanga were retrieved as they were simply thrown away, and duly returned to PW1; PW3 led both I ' . 2 PWl and the_ youngman whom he rescued to the police station where they were given PF3s and sent to hospital. '· The only major point of contest is whether that youngman was no other than the Appellant. In his petition of Appeal, Appellant challenges the findings of the trial court as follows - that the trial court erred in holding that Robbery with violence was committed on the strength of a PF3 whose author did not testify hence could be a forgery: he called to his aid, on· this, the authorities of Hassani s/o ·.Salum VR (1964) E.A. (3) and Sebastian Swai VR (1973) LRT No.75; that no description of the weapon allegedly used in ihe crime was given by PW1; that the trial court misdirected itself in convicting on the evidence of a single witness without first warning itself of its dangers; that as PW2 · and 3 are investigators and arresting officer respectivelly a civilian ' witness should have been called in support thereof as such evidence can't be conclusive unless supported by any. other evidence and cited Jasson Rwebangira VR (1975) TLR No.26; that the trial court erred in law in merely relying on the prosecution case without consideriijg the defence at all. As regards sentence Appellant complains that as he was 17yrs old his being sentenced to imprisonment offended s.22 (2) of the Children and young person's Ordinance Cap 13 and cited Yusufu Mussa and 5 others, Cr. App. No.98/92 (T.C.A.) {unreported). · Mr. Kamugisha, learned State Attorney, for th~ ·Republic\ Respondent brushed aside all the complaints as baseless insisting that the offence was proved beyond doubt and sente~cie properly meted out. In defence Appellant stated that he is engaged in a petty business of Selling tea at Mnazi Mmoja. On the material day, he testified, while at his table of business he heardishouts of "thief, thief" and a thief being chased by members of the public; that he joined the chase only to be stoned and fell down upon which the complainant came running and mistakenly identified him as being one among the gang which robbed her because she was bitter about theft of her money. As earlier stated, a substantial part of the facts is not disputed. Now let us look at the complaints of the Appellant one by one. Before going into that however I should state at this juncture that in. convicting the Appellant the trial court directed itself and found PW 1 credible; was satisfied that she fully identified Appellant as her robber; found the possession of Appellant with a knife as deposed upon by PW3 supportive of PWl's story and discarded the accused's story that he was mistakenly stoned for there was no one else· being chased as admitted by himself. To begin with, the complaint against a PF 3 is unfounded. Firstly, under s. 240 CPA such medical reports are admissible without necessarily calling in thei~ authors to testify unless 3 disputed. Appellant didn't dispute it at the trial. Secondly, the injury on PWl's face described as "deep wound 8 cm.x 4cm" was not disputed either. Apart from PW1 herself we have PW3 who clearly testified that "The woman who was complaining ·............... . was bleeding on the lower right eye". The extent of her injury can't be expressed better than the fact that · though she was wounded on 22\11 \ 92 till the time of giving her evidence in court, that is 5\1\93, she had not resumed her duties - "todate I have not reported for duties due to the injury on my eye''. The two authorities cited here have no relevancy. While I did not get access to the case of Hassan s\o Salum v R (1964) EA(?) possibly due to wrong citation, the other case he cited, Sebastian Swai v R (1973) III, No. 75, pronounced various pri~ciples but the only one possibly relied upon by the Appellant is the one which stated "where, in a criminal appeal, it appears that the judgement of the trial court contains misdirections I and non-directions, it is the duty of the appellate Court to see and determine whether this has occasioned miscarriage of justice before the appellant's conviction can be allowed-to stand", which principle is not relevant on this ground of appeal as there is no misdirection nor non-direction. For the question of describing the knife, I can simply say that it is immaterial here, even though still PWl did give some discription, expressing that it was "a locally made knife with a wooden handle". One may argue that PWl got this particularity after Appellant's arrest, which is most likely,.but there being other evidence proving robbery and that the we~pon used was a knife, detailed description of how it looked like, whether it was sharp or blunt including its colour in most cases including this one, would not be necessary in establishing that a knife was u·sed for in such sudden attacks circumstances may afford the victim simply to tell that the weapon used is a knife but not its detailed description. Another complaint raised by the Appellant Js that PW2 and 3 being an investigator and arresting officer respectivelly their evidence should be supported by other evidence of a civilian. While I should state out-rightly that the Jasson Rwebangira case he cited is not relevant at all as no such principle was pronounced therein, I must confess that I am hearing this kind of argument for the first time. Apart from saying that, if anything, in this case, evidence of a civilian i~there in plenty in the testimony of PWl, there is no law whethsr by statute or case law which so prescribes. In any case PW2 simply investigated, and PW3 deposed on how he rescued him from the punishment which was being exalted on him (Appellant) by the public which he.admitted in his evidence. Thus this ground also has no base on which to stand. Appellant also complained that the trial court did not consider his defence. This is again in- cbrrect for it is there, clearly put in the judgement, showing that his defence was discussed and discarded as being not true. '. •' 4 ; ..· During the hearing of t,his appeal the Appellant o'ra1l} added two more grounds - that the trial court refused to·have PWl's statement, given before the police, read over in court and that this shows that it was different from the deposition she gave in court which confirmed that she came to identify him after arrest and also that lack of an independent eye witness as regards the incident leaves the offence not proved beyond all, reasonable doubts. A perusal of the proceedings does not indicate that at any given stage the Appellant asked, without success, to·have PW1 1 s st~tement to the police read over to the court. If anything this would have been expected to be brought up during PW1's cross examination, or at most, during his defence. The r~cord however is silent. In the premises I have no base on which I can entertain the Appellant•~ cbmplaint:'we can't ~ay t~at the court recorded him on others but ommitted recording him on only this one matter. The other complaint of lack of 'independent witness has already been touched and will be discussed togetper with the question of identification by a single witness. This then btings us to the la~t two grounds;of appeal - failure by the trial court to warn itself of the·· dangers of finding a conviction OJ). evidence of a single. witness, and custodial sentence to a 17 years old youngman. Indeed the former ground needs a closer analysis. Mr. Kamugisha, learned State Attorney,. for the Republic\Respondent insisted that this argument· should be discarded . because PW1 6hased Appellant after robbery and was shouting in sb doing which prompted members of the public to converge on him hence h.i.s arrest. The incident is shown to have taken place at 8.00 hrs, when sorroundings were clearly visible. I am.aware bf the legal principle that when powers of vision are impa):-ed idantification made should be treated with greater care, and even greatest care, if it is by a single witness before a conviction .. is based thereon, and this is so because a witness may·be honest, genuine and yet mistaken (Abdallah bin Wenda and another v·R, 20 EACA 168). However, even in such situations, where · Gertaipty is established a conviction can still be found, as exemplified in the case of Cosmas Madubu and another v.R{1971} HCD No,;375 where it was held, "The trial court was entitled t'o act on the.evidence of the complainant alone on the issue of iqentity as (it) was satisfied that not only was. th~. complainant a credible witness but the circumstances were such that (she) ~ould not have·mistak-n the identity of the assailant". · · 5 In the present case where powers of vision, were not impaired, the trial court found PW1 credible, and looking at the evidence as given I have no reason to conclude otherwise. PW1 clearly shows that the assailant was just in front of her; he pounced on her and they struggled for a while before she was subdued by production of a knife and piecing of her face with it. When the assailant run away carrying the purse containing money and khanga PW1 chased him while shouting for help and it was then that the public desc'ended on him. The circumstances indicate that there was a clear focal inter - connection on PWl's side between the robbery, the chasing, the interception by the mob such that she, let alone the general public (mob), could n·ot have confused the appellant with someone eise. · I should pause here and say that even if the only evidence at hand were that of PW1, the appellant's guilt was sufficiently proved. However, in this case there is yet another corroborative evidence and that is of PW3. I have already indic·ated the focal inter-connection between commission of the Robbery and the descending of the mob on Appellant. PW3 arrived:at the scene as the mob was lynching him (Appellant) and not only,that but he was brandishing a knife to defend himself. PW3 saved him. The knife was seized and tendered as exhibit. The trial court believed this set of facts and I see no base of ·1ooking at them differently. It is not of insignificance to state here that ih reply to the learned State Attorney 1 s prayer that the appeal should be dismissed the Appellant himself stated, "I don't object to PW3's evidence. He told the truth. But PW1 told lies when she implicated me .. ". Now taking this, his statement, to be correct, can his defence of having been selling tea be acceptable? What would a knife be for! Further to all this the Appellant claimed that he was chasing the thief but adds that he was between the mob and that he didn't see the thief himself! How coulQ he chase a person he didn't see? How could he be between the mob! This is what he said while under cross examination. · "I did not see the thief but I heard people shouting 'thief'. I followed the public who were throwing stones to the thief. Unfortunately I was stonned at my head near the right ear. I was between the mob. Some were infront and others were behind me. I was chasing the thief but I did not see the thief chased". In view of the clear prosecution evidence tendered and the contradictory nature of this kind of defence it is no wonder that the trial court branded the latter as a pack of lies. In conclusion therefore this ground of complaint falls as PW1 fully identified him to the exclusion of any mistaken identity, and even if corroboration was needed it is there in the evidence of PW.3. 6 Let us now turn to the last ground of Appeal, that 17 years old as.he was he should not have been imprisoned as it offended s. 22 of Cap. 13 ( The children and· young persons ord. ) Mr. Kamugisha, learned State Attorney, responding on ·this conceeded as to the principle of law behind but argued that that law excludes young persons aged 16 and below and not otherwise. The Appellant cited the case of Mohamed Kessy@ Nenga and 3 others, Cr. Appeal No. 98 of 1992 - unreported (which however he cited using another Appellant's name - Yusuf Mussa) to his aid. The law is clear - "NO young person shall ·be sentenced to imprisonment unless the court considers that none of the other methods, in which case may be legally dealt with by the provisions of this or any other ordinance, is suitable " ( s. 22 ( 2) Cap. 13). A "young person" is defined as "a person who is twelve years of age or upwards and under the age of sixteen years". The Appellant was said to be 17 years old. This is as per charge sheet. There was no attempt to establish his actual age and it is not uncommon for the framers of charges to add a year or two more on the actual age, say if the suspect is 15 or 16 ye·ars, in order to take him out of the ambit of a: "young person". In such border line cases, and more particularly where no attempt is made to prove the age of the accused, it should always be decided in his favour if the question of age is in issue. In the case of Mohamed Kessy (above cited), where two of the appellants, whose ages were uncertain, and had been sentenced to 30 years imprisonment (even this being illegal sentences as the minimum was 15 years) for Robbery with violence the Court"\ of Appeal · directed itself as follows:- " .... in view of the uncertainty of the age of the 2nd and 3rd appellants (2nd appellant gave his age as 16 and the 3rd appellant in his defence is recorded as 17 years old) these appellants should not have been sentenced under the minimum sentences Act as they were apparently below the age of eighteen years. In view of their age their sentences of 30 years imprisonment is set aside. They are in substitution thereof each sentenced to 4 years imprisonment". This I think is a proper course to take in the present case. On the whole therefore the appeal against conviction is hereby dismissed. The appeal against sentence succeeds to the extent that Appellant beihg a young person, an~ having been in prison since 29th March, 1993 the sentence of 15 years imprisonment is set aside and substituted therefor is a sentence 7 of imprisonment which shall lead to his immediate release. The sentence of 12 strokes passed by the trial court remains intact and is hereby confirmed. AT DAR ES SALAAM (L. B. Kalegeya) PRINCIPAL RESIDENT MAGISTRATE WITH EXTENDED JURISDICTION 29th APRIL, 1996 Delivered on the.-~ .k, /1.1?. in the presen~e of •....• . . . . .~ . . . . . MN ....~ . . . . .I<. . .1ft . . (I . . . . . . .. . . . . State Attorney, for the Republic/Respondent and presence/.seence of App~llant. (L.B. Kaleg a PRINCIPAL RESIDENT MAGISTRATE WITH EXTENDED JURISDICTION ..... ., J s.1611Z :-!I