20050928 TZHC Mwanza

. . IN THE HIGH COURT OF TANZANIA · ATMWANZA APPELLATE JURISDICTION .[ HC. CRIMINAL APPEAL NO. 75 OF 2005 (CF) MISC. CR. APPL. NO. 76 OF 2005 [ {Original Cr. Case No. 197 of 2001 of the District Court of Bunda at Bunda Before: R. B. MAGANGA, District Magistrate) KASUKU s/o ALLY & ANOTHER ......................................APPELLANT Versus THE REPUBLIC ..... ■ ••••• ■ ••• I ......... ■ •• I ••• I ••••••• I •••• ■• I •• I •••••••• • RESPONDENT 14th Sept. 2005 & 7 th Oct. 2005 JUDGMENT RWEYEMAMU, Judge: This is consolidated Cr. Appeals No. 75 a_nd 76/2005, by Kasuku ___,,,,,.,----.---- s/ o Ally and Paulo Mathias respectively. The two were charged with ~ I and convicted of Robbery with violence c/s 2~85 and 286 of the Penal Code. They were each sentenced to serve 5 years imprisonment; suffer 12 strokes of the cane; and ordere to compensate Tshs. 222,000/= to the victim Pw3 • Dissatisfied, theJ have both appealed to this court. The crux of both appeals is that the e idence of identification upon which the appellants were convicted was inadequate. The Republic disagrees; .:-r Before going into the merits of appeal, I wish to make observations on two matters in this appeal, noted from the J proceedings. The first regards the conviction of Kasuku Ally for contempt during the sentencing process. The conviction was proper =r as 'the magistrate properly informed Ally the gist of the offensive 1 conduct and required him to reply'. He was thereafter sentenced to serve 1 year imprisonment. The sentence permitted by law however, =r is 6 months. I use my reversionary powers to reduce the sentence to ·1 that allowed by law. J 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 .. 1 appear twice on ordinary summons. After he gave his testimony, the J court required him to show cause why he should not be dealt with according to law, for disobeying lawful court summons. His I explanation was not to the court's satisfaction. He was convicted I , 7~ I under s. 114 (A) (a) of the Penal Code and sentenced him to serve I I year imprisonment. Unfortunately, he was1 not 'dealt with accordin 1 to law'. l The law under which Pw4 - Joseph yamhanga was convicted relates to Preventing or obstructing servicJ of or execution of court L processes. When appearance of witnesses i secured by a warrant of . '-1 arrest, after he has failed to appear on ord nary summons, the court can proceed under Section 143 of the Crim,inal Procedure Act, which 2 I ·- 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 :, I powers to quash the witness's conviction and sentence as they were not entered according to law. ,t t ' 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 Pw 1, 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 I torch light to count the money-220,000/=. She raised an alarm after I 1 4 they left, a. nd when her husband Pw and neightours including Pw 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 respondent submitted that Pw 3's evidence o identification was watertight, as it was sufficiently detailed; the lig ting was adequate; the identifying witness knew the appellants bef re, and she named them on first opportunity. I agree with him. F rther, there was no dispute that Pw 3 and the appellants were neigh ours, there was no 3 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 7- witness. The court acted according to law. Section 143 of the Evidence Act, 1967, as elaborated by the CA in Yohanis Msigwa v. R, 7· 1990 TLR 148; .T "no particular number of witnesses is required for proof of any -r fact. What is important is the witness's opportunity to see what he/she claimed to have seen and his/her credibility" ~, T The Trial Magistrate found Pw3 credible I found no grounds to fault that finding. 1· In conclusion, I find the appellants' conviction merited, and hereby --r dismiss their appeals, save for changes mad~ he(~in above. It is so ~r ordered. R. M. RWEYEMAMU 1-' JUDGE 4/10/2005 Coram: Judgment delivered in the open court t Mwanza on ih October 2005 in the presence of Mr. Sa ungi SfAttorney, T for the Republic and in the presence of he appellants under T custody. R/A Explaine~ c/ T R. M. %WEYEMAMU JUDGE 28/9/2005 4