20040913 TZHC Dar es Salaam

,, r,. L--t. ~ IN THE HIGH COURT OF TANZANIA ~ . AT DAR ES SALAAM ~ CRIMINAL APPEAL NO. 22 OF 2004 (Original from Criminal Case No.293/2003 in the District Court of Morogoro at Morogoro) 1. SALEHE JUMA 2. NASSORO MENGI VERSUS REPUBLIC / JUDGMENT / l MANENTO, l: This is a joint appeal by Salehe Juma and Nassoro Mengi, appealing against the judgment of the Morogoro District Court, which convicted them and sentenced them. They were, together with two others charged of armed robbery c/s 285 and 286 of the Penal Code as amended and read together with Act, No.10/199O and Act No.27/1991. They all pleaded not guilty to the charge. .. 2 The facts of the case were briefly that the accused persons were jointly and together charged on 11th day of July, 2003 at about 7.30 pm. at a place called Msamvu in Morogoro Municipal and District of Marogoro did steal cash money Shs.1,030,000/= radio cassette, mobile telephone and a bicycle, all valued at Shs.1,670,000/= the properties of Anatory Gaitan and John Ngaima. The accused persons ( ' as well as the others who were found not guilty and acquitted pleaded not guilty to the charge. However, after hearing both the prosecution and defence evidence, the two appellants found themselves being convicted while the two others were acquitted. The evidence which led to the conviction and sentence of the accused persons were that the complainants lived in one house situated at a place called Msamvu. Each of then slept in his room. They all worked at one place, in an abattoir. The first accused also worked at the same place with the complainants. On the night of 11 th July 2003 at about 9.30 pm, while at their home, the complainants were 3 visited by a group of five un invited guests. Those guests included the two accused persons, now appellants. Anatory Gaitan, PW1 came across those five people at the corridor of his house, when he was coming from his bathing room. He was ordered to go to his room and on getting there, he was, at gun point, ordered to give those guests some money. He offered Shs. 700,000/= on further orders, he directed those people to the PW2 John Ngoima for some more money. they went to that room where they found the PW2 John Ngoima counting the money and took Shs.350,000/= from him. The PWl Anatory Gaitan was injured by being cut with a matchet by the 1st accused. He suffered multiple head injuries as per PF3 exhibit PI. PW1 could very well identify the 1st and 2nd appellants. They were wearing caps on their heads. Infact, the cap of the 1st accused fell down at one time while he was pushing around the PW1 at the corridor where was electric tube light. Likewise, the PW2 John Ngaima identified the two appellants. He, like the PW1 said that the 2 nd accused/appellant was armed with a pistol and was, among other things, wearing a cap. They could not identify the 4 other two accused persons, who were jointly charged with the appellants. Those two other accused persons were arrested and charged because they had been mentioned by the 1st appellant to the police officer, PWS one D/C Lukumbi. Besides that, the PW1 and PW2 had seen the 2 nd accused at their working place on the day in issue and at their home when he passed by, while in the company of the 1st appellant. The 1st accused's evidence was that of previous grudges with the PWl Anatory at their working place while the 2nd appellant had raised a defence of alibi which the trial court, after considering it, dismissed it as having not raised any doubts in the prosecution case. Armed with that evidence at hard, the trial court was of the opinion that the prosecution had proved their case beyond reasonable doubts against the appellants. The court then found them guilty and convicted them. Having been convicted, they were sentenced to serve thirty years in prison and to be canned fifteen strocks each. That was on 15/10/2003. 5 The order of the court was duly complied with. When the accused persons reached at their new residence, the prison, they informed the prison warder that they intended to appeal against the judgment of the trial court. The process of appeal started. In their joint memorandum of appeal, they raised six grounds of appeal. The Republic on the other hand, supported both the conviction and sentence imposed on the appellants. In their first ground of appeal, the 1st appellant submitted that because he had previously quarreled with the complainants, then the complainants had an interest in the case, thus their evidence needed corroboration. He cited some decided cases to that effect. The allegation by the 1st accused about the quarrel he had with the complainants was just an afterthought. He never even tested it during cross examination to the complainants. There was, therefore no evidence that the 1st accused had previously quarreled with the complainants. Thus the trial court rightly dismissed that allegation and I do the same. 6 .. The second ground of appeal was that the two complainants, Anatory PWl and John PW2 were family members, so they had equally an interest to serve, so their evidence should be corroborated in order to be the basis of conviction. they also cited a decided case to that effect, that of Zuberi Shabani and others v. R (Criminal App. No.138/1990) unreported. That case being unreported, the appellants were duty bound to attach its copy to their memorandum of appeal for ease of reference by this court, or even name the High Court Registry where it was decided. However, notwithstanding that comment. In reply to that submission, the learned state attorney submitted that in law, members of one family are competent witnesses and I agree to that submission. Section 127 of the Evidence Act, 1967 is relevant on the issue. All the same, nowhere in the proceedings was shown that the PWl Anatory and PW2 John were members of one family. The record shows that they were working mates. PW3 Juma Jakaya who was the Chairman of the sub-village had heard a gun shot, he went 7 to follow the direction the gun shots sound came from. On the way, he saw five people, the appellants being among them. They were carrying a radio and puling a bicycle. He heard the 1st accused saying that if they met with any person on the way, they would expose him. He was hiding in a semi finished house, and that area was electrified. It was a shopping area so the lights in the shops were left lighting. He had seen the 1st accused with the 2 nd accused and another person not in court during the day time. He had known the 1st accused for about 9 months as they worked at the abattoir. Therefore, the identification of the appellants were not only by the PW1 and PW2 (victims of the crime) but was also made by PW3, an un interested person if so to say. Therefore, that ground of appeal is baseless. The 3 rd and 4 th grounds of appeal are linked. In the 3 rd ground of appeal, the appellants submitted that there was no issue of identification in this appeal nor was the 2 nd appellant mentioned by the 1st accused as being one of the 8 perpetrators of the crime. In the first place, I agree with the learned state attorney that the appellants were properly identified by both PWl, PW2 and PW3. Actually, the whole case centred on the point of identification than anything else. The conviction of the 2 nd appellant was not based on the information given by the 1st accused to the police. It was based on the identification of the accused persons. The 3 rd and 4 th accused persons Dominic Chilala @ Uwemba and Isaya Madume respectively, were charged on the information to PWS D/C Lukuba that they also took part in the commission of the offence, but they were rightly, acquitted for lack of any incriminating evidence against them. The trial magistrate considered very well the question of the identification of the appellants by the eye witnesses and believed that they were properly identified. Having dismissed the question of mistaken identity, the trial magistrate convicted the appellants and sentenced them accordingly. 9 The . prosecution witnesses, namely P_\{\11, PW2, and PW3 had known the 1st appellant before that day. They were working in one places at the abattoir. PW3 Jakaya went on to say that he could even identify his voice and he identified him when he said that they would clear any person they could see on the way after the commission of the offence. There was electric- light in the rooms of PW1 and PW2 where the robbery took place. The appellants were too near to the complainants when the offence took place. The appellants were seen wearing caps on their heads and just at the corridor, the 1st appellant's cap fell down. The witnesses were previously acquitted to the 1st accused. All those factors removes the doubts in mistaken identity of the 1st appellant. The second appellant, Nassoro Mengi was not a stranger to the witnesses too. He had been seen during the day time walking with the 1st appellant. When PW3 saw them, they were three persons, PW1 and PW2 had seen the appellant passing via their home at day time on the day the offence was committed. At night, when the offence was 10 committed, he was also seen, wearing a cap and holding a pistol while the 1st appellant was holding a panga which he used to cause the cut wounds on the head of the PWl Anatory. These factors made the three prosecution witnesses identify the appellants in the standard required in law. The Court of Appeal in the Case of WAZIRI AMANI V. R. (1980) TLR 250 at P.252 observed that facts such as:- "(i) time the witness had the accused under observation; (ii) the distance at which he observed him; (iii) the condition in which such observation occurred, (iv) and further whether the witness knew or had seen the accused before or not." I have really considered all those matters, among others that they were all fulfilled by the prosecution witnesses, taking into consideration that the offence was commited at night, in a horrible condition whereby the PWl and PW2 were under fear of their lives. The witnesses had the accused persons under observations for quite a long time. The PWl had met with the accused persons at the 11 corridor of his house. He had them in his room when they were demanding for the money and searching in this room for more money. The PWl spent a little bit shot period with the accused persons, yet he had them in his room. The accused persons were too close to both PWl and PW2 since it was in their respective bedrooms. There was electric light in the rooms of both PWl Anatory and PW2 John. Better still, the accused persons were not strangers to the PWl, PW2 and PW3. They were all working at one place with the 1st accused. The three prosecution witnesses had seen the 2nd accused person with the 1st accused person during the day time on the very day the offence was committed. Thus those three prosecution witnesses knew the accused persons before the commission of the crime. I have already delt with the 6 th ground of appeal in that the conviction of the 2 nd appellant was not based in any ways on the information given to PWS D/C Lukuba, but it depended on the strong prosecution evidence, mainly on identification. 12 When making his additional submissions in this court, the 1st accused submitted that the trial magistrate allowed the PW2 and PW3 to be present in court when PWl was giving his evidence. Unfortunately that, is not reflected in the proceedings. All the same, the evidence of PW3 Jakaya defence with that of both PWl and PW2 as to when he came across with the appellants. Likewise, the 2 nd appellant raised new issues when he was making additional submissions in court. He submitted that he was refused to call more of his witnesses in his evidence in regard to the defence of alibi and secondly that he was ordered to briefly give his evidence. Those allegations have no base at all. The records show that he had only one witness to call and he called her, his wife. The trial magistrate even delt with the evidence of alibi raised by the 2nd appellant and dismissed it. Even though the trial magistrate did not give much reason for his refusal to accept the defence of alibi, yet, he admitted that the accused was 13 . properly identified by the prosecution witnesses. The defence of alibi and identification are mutually exclusive. One can not be at two different places at one time. He could only be at one place at a particular time, thus the count, - having believed from the evidence that the 2 nd accused was at the house of PWl, Anatory at about 9.30 pm, he could \ not again be else where at his home sleeping with his wife at that very time. Therefore, the trial magistrate covertly gave no weight to the defence of alibi as it never raised any doubts in the prosecution evidence. With all what I have considered above, the appeal against conviction is bound to collapse. On the sentence, the accused persons were sentenced to thirty years imprisonment. That was the minimum sentence under the law. But the corporal punishment Ordinance, Cap.17 as amended by Act. Nol0/1989 imposes only twelve strocks to be canned on the accused person. I therefore quash the order for 15 strocks and set it aside. On the other hand, I order that the accused persons, each of • i 14 them are to be canned twelve (12) strocks as per law requires. Subject to the order for corporal punishment I have stated above, the appeal against both conviction and sentence is hereby dismissed. A.R.~ JUDGE 13/9/2004 13/9/2004 Coram: A. R. Manento, J. 1st aced: } 2nd aced: } All present State Attorney - Miss Mwanda & Miss Godly-Trainee. C.C: Maganga