kasuku so ally another vs republic 2005 tzhc 155 28 september 2005

IN THE HIGH COURT OF TANZANIA AT MWANZA APPELLATE JURISDICTION HC. CRIMINAL APPEAL NO. 75 OF 2005 (CF) MISC. CR. APPL. NO. 76 OF 2005 (Original Cr. Case No. 197 o f2001 of the District Court of Bunda at Bunda Before: R. B. MAGANGA, District Magistrate) KASUKU S/O ALLY & ANOTHER............................................APPELLANT Versus THE REPUBLIC.................. ................................................ RESPONDENT 14th Sept. 2005 & 7th Oct. 2005 JUDGMENT RWEYEMAMU. Judge: This is consolidated Cr. Appeals No. 75 and 76/2005, by Kasuku s/o Ally and Paulo Mathias respectively. The two were charged with and convicted of Robbery with violence c/s 285 and 286 of the Penal Code. They were each sentenced to serve 15 years imprisonment; suffer 12 strokes of the cane; and ordered to compensate Tshs. 222,000/= to the victim Pw3. Dissatisfied, they have both appealed to this court. ! The crux of both appeals is that the evidence of identification upon which the appellants were convicted was inadequate. The Republic disagrees. Before going into the merits of appeal, I wish to make observations on two matters in this appeal, noted from the proceedings. The first regards the conviction of Kasuku Ally for contempt during the sentencing process. The conviction was proper as 'the magistrate properly informed Ally the gist of the offensive conduct and required him to reply'. He was thereafter sentenced to serve 1 year imprisonment. The sentence permitted by law however, is 6 months. I use my reversionary powers to reduce the sentence to that allowed by law. The second is in respect of conviction of a witness in the case Pw4, in the course of the trial (page 11 of the proceedings). That witness's appearance was secured by warrant, after he had failed to appear twice on ordinary summons. After he gave his testimony, the court required him to show cause why he should not be dealt with according to law, for disobeying lawful court summons. His explanation was not to the court's satisfaction. He was convicted under s. 114 (A) (a) of the Penal Code and sentenced him to serve I year imprisonment. Unfortunately, he wasi not 'dealt with according to law'. i The law under which Pw4 - Joseph Nyamhanga was convicted relates to Preventing or obstructing service of or execution of court processes. When appearance of witnesses ijs secured by a warrant of arrest, after he has failed to appear on ordinary summons, the court can proceed under Section 143 of the Criminal Procedure Act, which does not prescribe the punishment meted out. In any case, it is my opinion that the witnesses having turned up and testified properly (i.e the prosecution did not allege that he turned hostile), convicting him served no useful purpose. Be that as it may, I use reversionary powers to quash the witness's conviction and sentence as they were not entered according to law. That done, I turn to consider the merits of the appeal. The evidence was brief. On the night in question, the appellants knocked at Pw3's house, who thinking it was her husband Pw1, put on lights and opened the door. She met a group of people among who were the two appellants, neighbours whom she knew before. They demanded money she had received from her husband. When she refused, they assaulted her. She received medical treatment. When she finally obliged their demands, they used their torch light to count the money-220,000/=. She raised an alarm after they left, and when her husband Pw1 and neighbours including Pw4 turned up, she mentioned the two appellants to be among her attackers. The two were arrested immediately thereafter. Supporting conviction, Mr. Kahangwa stat£ attorney for the i respondent submitted that Pw3's evidence of* identification was watertight, as it was sufficiently detailed; the lig iting was adequate; the identifying witness knew the appellants before, and she named them on first opportunity. I agree with him. Fu rther, there was no dispute that Pw3 and the appellants were neigh bours, there was no explanation whatsoever, why the witness would wish to falsely implicate the appellants. The appellants raised another key ground namely that their conviction was based on testimony of a single witness. The court acted according to law. Section 143 of the Evidence Act, 1967, as elaborated by the CA in Yohanis Msigwa v. R, 1990 TLR 148; "no particular number of witnesses is required for proof of any fact What is important is the witness's opportunity to see what he/she ciaimed to have seen and his/her credibility" The Trial Magistrate found Pw3 credible I found no grounds to fault that finding. In conclusion, I find the appellants' conviction merited, and hereby dismiss their appeals, save for changes made herein above. It is so ordered. Coram: Judgment delivered in the open court Mwanza on 7th i October 2005 in the presence of Mr. Saijungi S/Attorney, for the Republic and in the presence of i;he appellants under custody. R/A Expla:— 1 JUDGE 28/9/2005 4