republic vs mlongo others 1999 tzhc 3 15 january 1999

1 J' IN THE HIGH COURT OF TANZANIA AT DAR F.S __SALAAM CJ?LMI1'l)\T, APPR)\L_N_O, 7.40 OF 1 995 (Originating from Tlala District Court at Kisutu Criminal CaSR No. ?15 of 1995) .rACOR MLONGO f{ 7 OTHERS . VERSUS The Appe]l~ntR, J~cob Mlonga ~ RenkichwB, Saidi Mlonga ~ Mapesa, Tsmail Salurn (d Kindonga, Ci'lstory Sndi, Saidi Salim (d Kipua, Kipara MwinyimkuIJ, Peter Mathew and Halfani Omari ~ Daudi (styled 1st - 8th Appellants respectively) having heen convicted by the Kisutu RRsident Mi'lgistratR's ronrt (Kimaro, PRM) for armed robbery c\s 285 i'lnd28~ they i'lreassailing thi'ltdecision. F.ach of the Appellants was sentenced to thirty years imprisonment with 12 strokes of corporal punishment save the 6th Appellant, who, owing to his age, estimated to be hetween 17 and 20 years was sentenced to 4 years imprisonment. Undisputed facts in this matter are that on 16\2\95, at about 2.00 a.m., PW1's house was stormed by a group of ahollt 15 thieves who, apart from injuring the occupants including PW1, stole various articles whose value is estimated at shs. 2,022,000/=. The robbed premises had two sections - a main house and a rear house. At. the t.ime of rohhery PW1 lived in the rn"ln house while PW2, his son, Tutu HAf';san, PW4, Mangapi H"ssi'ln, another son: and PW5, Mafuko Ching'"ng'", " teni'lnt: occupied the rear. The premises were lighted. While withdrawing the robbers threw away a video deck and a fan. Tn the process of stealing, injured PWl on the head; PW2 on his left and right hand and PW5 on his left hand. PW1, 2, 4 and 5 named the Appellants as having been among the group of robbers while PW6, a police officer who was on patrol, maintained to have identified 1st and 2nd Appellant by help of a motor vehicle head lamp lights. He stated further that the 1st accused had a deck while the 2nd accused had a fan both of which were dropped when they (1st and 2nd accused) were flooded with motor vehicle lights. On appeal to this court the Appellants argued t.hat as t.he ident.ificat.ion was made at. night. t.he t.rial court misdirect.ed itself in convicting on llncorroborated evidence; that the evidence relied upon was of just. family memhers hence not sufficient to found a convict.ion.: t.hAt proof of injury allegedly occassioned on PW1, 2, :1 should have been made by the actual testimony of the doct.or concerned and not by merely PF:1; that under Cap. 13, The Children and Young Persons Ordinance, convict.s under 17 years shOlllel not. be condemned to cllstodial sentences and finally that. being first offenders sentencing thenl to corporal punishment as well was illegal While Appellants argued their appeBls in person, Ms Sehe, Stat.e Attorney, represented the Republic\Responelent. The lBtt.er supporteel convictions in entirety observing thBt there was proper identificBtion of the AppellBnts. T should outrightly brush Bside t.he complAints regnrding the alleged family-members' evidence and t.he fAilllre t.o call the doctor for IBck of merit. There is no law which prescribes that family members' evidence cannot be relied upon t.o found n conviction in a charge for robbery commit.ted at night. What is important is the credibilit.y of the witnesses involved and also the circums t.ances sorrounel ing a part.iCllla r case. l~~son Rwembanaira case. [1975, LRT No. 26J cit.ed hy t.he Appellant.s did 2 not lAy down Any su~h prin~iplA AXCApt sAying that in that case, regard heing had t.o its spe~ial cjrcumst.an~es independent wi t-nesses were reqllirAd. ,11,1 so thA quest. ion of call i ng in a doctor to depose physicAlly ~olJld not ArisA for there was no dispute rAgarding the injllriAs OCCAsioned nor did t.he Appellants raise thA matter At. All during the I-riAl. T now tlltn tn UI(.> qllAstinn of idAntificAt.ion. While ApprAciAting thA ~lear principlA of t.hA law which evolved through CASA lAw:in~lllding those pronolln~ed in WA7.iri AmAni v R (1980) '1'LR/.SO and R v '1'ingA KelAle (1g74) T.R'1': and which are to the effect t.hi'lthe fore the evidence of viSUAl ident.ification when conditions of focus Are unfavourAhle: i .A. at night, is relied upon t.o found a conviction t.he court. should warn itself of its dangers and must. he satisfied t.hat it. is wat.er-t.ight., for, a witness mAy he honest: gAnl1ine And yet mist.Aken (Ahdallah bin Wendo and Anot.her v R /.0 E.A.C.A., 16R) in t.he instAnt case I am sat.isfied that t.he t.rial ~Ollrt. properly directed itself and ana lysed in detAils t.he Avidence at. hand hefore convicting. I must. emphAsise t.h.::lt the legAl principle:=; governing the issue do not. provic1e t.hAt of necessit.y t.here must. he corrohorAtion but rat.her t.hey .::ll ert. the court t.hAt. in cert..::l1.n si t11at.ions it. may be neces:=;ary while in ot.hArs it mAy not. All t.he SAme however the COllrt. must be satisfied t.hi'lt. t.he evidence is wat.er-tight as reg.::lrdsidentific.::lt.ion of thA accllsed. Tn t.his case: the t.rial court. went. int.o det.::lilsto ascertain how each Accused (AppellAnt.) WAS idAntified. First, notwit.hstanding that it W.::lS at night the evidence is clear that t.he sorroundings had light.s hot.h inside And outside. Secondly, the evidence shows that. the identifying witnesses (PW1, 2, 4 and 5) hAd ample t.ime to ident.ify thA rAiders as t.hAy stayed in their vicinit.y for qllitA sornet.imA. Tn fact.: PW4: had aU the undisturbed chance at. hiR diRpORA1. HA had managed to run out of :1 the house before r~iders c~me to his room. He took cover in the sorrounding b~n~n~ trees and followed closely what was taking pl~ce. 'rhirdly: the ~ccllseos were not new to these witnesses (PW1: 2: 4 ano S). 'rhe Appellants lived in the neighbourhood. They knew e~ch other well. As reg~rds the 1st ann 2nd accused there is even corroboration in the evidence of PW6: who was on patrol. He oeposed to have been in Vicinity when people were chasing robbers. He deposed: and the trial court believed him, and T find no reason to concluoe otherwise: that while running the 1st Ano ?nd ~ccuseos got CAught up in the £1000 light.s of the vehicle he WAS rioing; they oroppeo the Vioeo Deck And fan they we rerA r ry ing A n (1 run AWAy. PW 6 co lIe r te<1 the Art i c 1e s w hie h we r e dilly ioentifieo by the witnesses AS heing some of the articles thAt hAd he ens tal en fro rn t- he i rho 11 se . From the totAlity of the ~hove evidence T Am satisfied t.hat identifirAtion w~s wAter-tight ann that the triAl cOl1rt was justifiao in fOl1noing a conviction thereon. FinAlly: we come to the question of sentence. While the complaint regaroing infliction of corporal plJnishment hAS no merit AS the trial court did not ACt in exress of its powers, equally the romplaint regArding sending to prison A convict aged 17 years is without legs on whirh to stano. 'rhe trial rourts' rerorOs shows that the question of age was not taken lightly. 'rhe ronvirts were sent to the doctor to have their age ascertaineo. 'rhese were the 3ro: 4th And 6th accused's (now Appe 11 ants goi ng hy salllenumbers)" A ftet:"oue examinat ion the Doctor roncluded thAt the 3rd and 4th acrllseos (Appellants) were each aged hetween ?O AmI 22 years whi 1e the 6th accused was aged hetween 17 ann 7.0 yeArs. 'rreading on this the trial rourt meted out the requi reo sentence on :I reI Ano 4th arClIseds. Due to lInr.ert.~inty of the Age the 6th acr.lIseclwas sAntAnceo to only 4 yeArs imprisonmAnt. T see nothing wrong with these steps. 4 Tnl allnch ing t.hf'!abovf'! a t.tack: rf'!gA t.f'!nce,t. he reIing Sf'!n Appellants referred to the (CAT) casf'!of Mohamed Kf'!Ssy ~ Nenga and ~ Others: Cr. ApPf'!al No. 9A of 199? (Dsm - Rf'!gistry: unreported). That authority however prescribes nothing different from what thf'!t.rial court did in t.his casf'!. Tn t.hat casf'!: ages of two of t.he Appf'!llAnts were uncertain. Howevf'!r: unlike the present case, no Att.f'!mpt.s werf'!made to ascf'!rtain their age. They had been convicted with Robhery with violence and sentenced to ~O yf'!ars impr;sonrnen!" e;'lch. Tn rR(lllcing thRir sentRnces: thR court held: .In view of thR IJncp.rtf'linityof thp. agp. of the ?nd And ~rd apppllant (?nd appellant gave his agp. as 1~ and ~rd appellant in his dp.fenCR is recordp.d as 17 yp.ars 01(1) thesR appRllard"s should not. have heen sp.ntenceo under thR mi ni mllm sentp.ncp.s Act as they were apparp.ntly hRlow thR agp. of p.ightRp.n years Tn vip.w of thp.ir age their sentp.neAS of :~O yp.ars ;rnprisonmAnti s r-;etaside. They are in substitution thereof p.ach sentenced to 4 years imprisonment". Treading on thir-;, and The Children and Young Persons Ordinance Cap. 1 ~ thp.re WnS noth ing ill p.ga1 ahout send ing ~th Appel.l ant to prison hecallsR therp. was cp.rtainty rp.garding his age - he was ahovp. 16 yp.ars hp.nce not a "young pp.rson", for, that term covers only thosp. hp.twp.p.n17 and 16 yp.ars. (T.. R. KaIegeya) .TUDGE .TuogemRnt oe1 ivereo in the r;>resencp.of Mr. MORme, Statf'! Attorney .. today the 15th January, 1999. (T.. R. Kalegf'!ya) .TUD(,~13. 15\1\99