20050603 TZCA Tanga10

1 IN THE COURT OF APPEALJ)F TANZANIA ATTANGA (CORAM: MUNUO, J.A., MSOFFE, J.A. AND KAJI, J.A.). CRIMINAL APPEAL NO. 107 OF 2004 KOMBO RAJABU @ MDASO ........... ~ ............... APPELLANT VERSUS THE REPUBLIC .......................................... RESPONDENT · · (Appeal from the Judgment _of the High co·urt of Tanzania at Tanga) (Longway, J.) dated the 20 th day of September, 2002 in Criminal Appeal No. 15 of 2002 JUDGMENT OF THE COURT MUNUO, J.A.: This is a second appeal from Criminal Appeal No. 15 of 2002 in the High Court of Tanzania at Tanga, originally Criminal Case No. 41 of 2001 in the District Court of Pangani within Tanga Region. The District Court convicted the appellant of robbery with violence c/s 285 and 286 of the Penal Code, Cap. 16 upon finding him guilty of stealing cash shs.120,000/= from the complainant, Anania Esrael, and at the time of stealing cut him with a knife on the head and arm in order to obtain and retain the stolen money. For the offence of 2 robbery with violence in which the appellant used a lethal weapon, a knife, the trial Magistrate sentenced him to the statutory Minimum Sentence of 30 years imprisonment for armed robbery. The trial court also ordered the appellant-to pay shs.20,000/= compensation or distress in default, and to refund the stolen cash shs.120,000/= to the complainant. Aggrieved, the appellant unsuccessfully preferred the first appeal. Hence this second appeal in which he is challenging the conviction and sentence. The single eye witness, PWl Anania Esrael, deposed how on the material evening around 6.00 p.m. when there was still light, the appellant knocked at his hut in his farm. It is the evidence of PWl that he knew the appellant well because the latter often visited him and they are co-villagers. After knocking at the door of PWl, PWl opened the door for the appellant who then asked for drinking water which PWl gave him. Instead of drinking the water, the appellant poured the water into PWl's face and also threw the cup at him. Meanwhile, a co-suspect joined the appellant and both then seriously assaulted the complainant. The appellant cut PWl with a knife on the head. The bandits stole shs.9,000/= from PWl's pocket and shs.111,000/= from PWl's pillow case. The bandits escaped, leaving PWl unconscious. PWl deposed that he raised an alarm during the 3 robbery but there was nobody nearby to come to his rescue. The next day, PW2 Kiango Athumani passed by and found PWl wounded. He reported the matter to PW3 Hassan Sekimbao, the Village Executive Officer. PW2 took PWl to the hospital where he was admitted. Although the appellant lived in the same Madanga village, he escaped after committing the offence charged on the 16th April, 1998 and was not traced until he was eventually arrested in August, 2001, whereafter he was charged with the offence of robbery with violence c/s 285 and 286 of the Penal code. The appellant denied the charge. In this appeal he filed five grounds of appeal. He complained that the ingredients of the offence of robbery with violence were not proved by the prosecution so the trial court ought not to have convicted him. He further complained that the evidence of the complainant lacked corroboration so it could not support a conviction. He also claimed that PWl did not identify him. It is the contention of the appellant that the prosecution witnesses gave inconsistent evidence on the exact amount of money the bandits seized from PWl which inconsistency dented the credibility of PWl, PW2 and PW3. 4 Mrs. Mutaki, learned State Attor;ney, supported the conviction and urged us to sustain the same. She· observed that the appellant committed the robbery with violence around 6.00 p.m. when there was daylight and because PWl knows the appellant well as a co- villager, he had no difficulty identifying him when he knocked on PWl's door and asked for drinking water. She pointed out, furthermore, that when PW2 Kiango Sekimbao found PWl wounded and helpless on the· next day, PWl named the appellant because he had identified him during the robbery. The learned State Attorney contended that the appellant's conduct of deserting the village after the robbery for over three years was not consistent with innocence. As for the ingredients of the offence charged, the learned State Attorney observed that the appellant cut the complainant with a knife on the head and on the arm during the robbery and in the process --- seized a total of shs.120,000/= from PWl so the ingredients of robbery with violence were established. She further argued that there were no material inconsistencies in the testimonies of PWl, PW2 and PW3 because PWl stated that shs.9,000/= was stolen from his pocket while shs.111,000/= was stolen from his pillow case. Mrs. Mutaki argued that the appeal ought to be dismissed for want of merit. 5 We have no doubt in our minqs that the complainant, PWl - Anania Esrael, properly identified the appellant during the robbery. To begin with, the time was about 6.00 p.m. during sunset so there was daylight. Two, PWl knew the appellant as a neighbour and co- . villager so there was no possibility of mistaken identity. In the case of Eva Salingo, MT 6222421 PTE Peter Magoti and MT62218 Pascal Mgawe Versus Republic (1995) TLR 221, the court sustained a conviction of murder because the identifying witness knew the appellants well before the incident. The court held that- "There was plausible evidence to show tha_t the appellants were not strangers to the witness and that the circumstances at that time were favourable for unmistaken identity." We have no doubt in our minds that PWl properly identified the appellant by daylight when the latter knocked at his door pretending that he wanted drinking water whereas he was out to commit armed robbery with the assistance of two other bandits who joined him shortly after. 6 \. .. We are also satisfied that the·)ngredients of the offence of ·robbery with violence c/s 285 and 286 were proved beyond all reasonable doubt. The complainant's PF3, Exhibit Pl, shows that he was wounded with a sharp object, on the head and on his right arm. PW1 was seriously beaten up by the bandits. The appellant cut PW1 on the head and arm with a knife. The bandits seized a total of shs.120,000/= from PW1. In this respect the conviction and sentence for armed robbery was properly imposed on the appellant. We wish to refer to the case of Michael Joseph Versus Republic (1995) TLR 278 wherein the Court of Appeal of Tanzania tackled the issue of what constitutes armed robbery and held at Page 279: "(i) Though there is no express and specific definition what constitutes ''armed robbery" it is cle~_r that if a dangerous or offensive weapon or instrument is used in the course of a robbery such constitute "armed robbery"in terms of the law as amended by Act No. 10 of 1989. (ii) Weapons are not confined to firearms only, other types of weapons such as knives are also included." 7 In this case we are clear in oi1r minds that the prosecution evidence adduced at the trial, established the offence of armed robbery because the appellant was armed with a knife with which he cut PWl on the head and on the right arm to facilitate the stealing of PWl's shs.120,000/=. We are, therefore, satisfied that the appeal is lacking in merit. We accordingly dismiss the appeal. . DATED at TANGA this 3rd day of June, 2.005. E. N. MUNUO JUSTICE OF APPEAL S. N. KAJI JUSTICE OF APPEAL I certify that this is a true copy of the original. s.A.N.WuRA SENIOR D~UTY REGISTRAR