20050923 TZHC Dr es Salaam 1

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CRIMINAL APPEAL NO. 44 OF 2001 (Originating from District Court of Morogoro Criminal Case No. 303 of 1998) KIMWAGA S/O ATHUMANI & 3 OTHERS ...... APPELLANTS VERSUS THE REPUBLIC . . . . . . . . . . . . . . . . . . . . . . . RESPONDENT JUDGMENT ORIYO, J.: The appellants, Kimwaga Athumani @ Sega, Shaibu Abdul Ramadhani @ Ng'ombe and Kavitaka Lucas @ Kevi were charged and convicted by the District Court of Morogoro at Morogoro for the offence of Armed Robbery contrary to Section 285 and 286 of the -, Penal Code, Cap 16 of the Laws read together with Written Laws Misc. Amendment Act 10/89 and Act 27/91. The particulars were that on 18/8/98, at about 4 a.m. at Mvuha Village within Morogoro, the accused stole shs.4,000,000/=, the property of Sadiki Yasini and immediately before such stealing did use actual violence to Sadiki Yasini by threatening him with a shotgun and wounding him by a matchettes (a panga). They were sentenced to 30 years imprisonment each. They were aggrieved and appealed against both the convictions and sentences. 1 The appellants were represented by E. Wamunza, learned counsel and the Republic was represented by Ms Mwanda, learned State Attorney. On the merits of the appeal, the only substantive point is the identification of the appellants. Evidence was tendered by PW 1, PW 2, PW 3 and PW 4. PW 1, was MOSHI KILIMA, a bus conductor at Mvuha, Morogoro. He said that he saw the complainant, SADIK! - - - - - -Y-ASINI {PW-3~ being _chased_b_y _tw_o_p~Qp~; one ----- holding - ----- -- a- matchette -- -- rd -(the 3 appellant) and one was holding a gun (tt:ie second appellant)_. PW 3 ran into his bus which had other passengers and the third appellant followed him into the bus and cut him with the matchette. Meanwhile, the second appellant remained outside the bus and fired two gun shots into the air. PW lstated that although it was still night time, vision was good because the lights inside the bus were on. PW 3, Yasini Sadiki, was a businessman living at Mvuha where he ran a shop. He testified to have seen 1st appellant and another person around his shop on 17/8/98; as 1st appellant was also a resident of Mvuha. On 18/8/98 at around 4 a.m. he left his house to board a bus at Mvuha bus stand on his way to purchase shop supplies from Morogoro. On stepping outside his house, he was attacked by three people, including the first appellant. He ran to the bus and one of them who had a "panga" followed him inside the bus. 2 The one with a panga was the third appellant and the second appellant remained outside the bus holding a gun which he fired into the air. He then ran out of the bus towards his uncle's house (PW 2) asking for help. PW2, IDRISA MPENDA, did not open the door for him because his assailants threatened him. Thereafter they dragged him back to his wife at his house, from where they took shs.4,000,000/=. He stated that the third appellant cut him with the "panga". PW 3 also testified that the lights inside the bus were on; and on cross - examination by the defence counsel, he stated that - - - -the whole~incident took_mo_reJ:han one hour. PW 4 was HADIJA YASIN!, wife of PW 3. She testified how she heard PW 3 crying for help once he had stepped out of their home on 18/8/98 around 3.45 a.m. She also heard gun shots. Then 3 people entered her house. She identified the 1st appellant out of the trio and they took away a bag containing shs.3,000,000/=. She stated that she identified the first appellant because he lived in the same area and knew him from before. She stated further that later, 2nd and 3rd appellants brought PW 3 back from the bus stand and demanded for more money and he gave them shs.1,000,000/= he had in his pockets. Further evidence on the Identification of the appellants was from the identification parade held on 21/9/98. The result was that 3 PW 1 identified the 2nd and 3rd appellants while PW 3 Identified the first and second appellants. In WAZIRI AMANI vs R (1980) TLR 250, the Court of Appeal stated that:- "no Court should act on evidence of visual Identification unless all possibilities of mistaken Identity are eliminated and the - - -~-- -------e0t1tt-is--fully-satisfied_tbat-the evidence ---- It was further stated that in cases of disputed identity, some of the issues to be considered with regard to the surrounding circumstances of the scene of the crime should include:- (i) the time the witness had the accused under observation; (ii) the distance at which he observed him; (iii) the conditions in which such observation occurred; whether it was day or night time; (iv) whether there was good or poor lighting at the scene; (v) whether the witness knew or had seen the accused before or not. 4 On the evidence of PW I, PW 3 and PW 4, the three appellants were properly identified at the scene of the crime and at the Identification parade. Though the incident took place at night, there was light in the bus and at the house of PW 3 and PW 4; and the incident lasted for more than one hour. The first appellant was not a stranger to the PW 3 and PW 4. All these factors in their totality satisfy me beyond all reasonable doubt that the appellants were among the robbers on the material night. Their Identification was therefore, fully established as the Identification Parade sufficiently corroborated the - - - - - -- visuat-identificatie:ms- aAd--t~e -conditions_laid _do_W_n in the case of wAZIRi AMANC(supra) were fully satisfied. - - The decision I have reached on the identification of all the appellants takes care of most of the grounds of appeal. In the initial Petition/Memorandum of Appeal, the appellants had put up 9 grounds of appeal; but only 6 grounds were argued and I will oblige. Grounds 1 and 2 that it was impossible to prove beyond reasonable doubts the identity of the assailants due to circumstance involved at the time of commission of the crime; have been adequately dealt with. Therefore the first and second grounds of appeal fail and are dismissed. Grounds 3 and 4 were on the way that the Identification Parade was conducted; it is to be noted here that the evidence of Identification at the Parade was merely of corroborative value in the 5 trial and the purpose is as stated in SECTION 60 (1) of the Criminal Procedure Code, 1985:- " ....... ascertaining whether a witness can identity a person suspected of the commission of an offence." As already stated visual identification by PW 1, PW 2, PW 3 and PW 4 corroborated each other very well and was sufficient to establish the ----- identification of the appellants without further corroboration. On the alleged failure by PW 1, PW 2, and PW 3 to give proper description or special marks or even the names of the appellants; it was correctly pointed out by the respondent that there is no legal requirement. In any event, it is not possible to know the names of all people who reside in the same area. Grounds 3 and 4 lack merit and are dismissed. Ground 5 that the first appellant was arrested on the statement of a co-accused is not supported by the record. The first appellant was arrested because he was identified at the scene of crime by PW 1, PW 2, PW 3 and PW 4. However, an accomplice is a competent witness against an accused person. SECTION 142 of the Evidence Act, 1967 provides:- 6 "An accomplice shall be a competent witness against an accused person; and conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice." ( emphasis added) Ground 5 also fails and is dismissed. ---n,e last-ground-is-that-t:Me-ap13ella11ts-w-ere_sea[cbe_d_and were _____ _ not found with the stolen -money~ -ram im:lined-to-agree-witM---the- -- -- __ _ respondent that it does not necessarily mean that they did not steal the money. However, on a more realistic note, it could neither have: been safe nor wise for the appellants to keep shs.4,000,000/= with them especially when some of them were not engaged in any money generating activity. To me, there is a clear distinction between cash money and -other stolen- properties. Even shs.100,000/= found with one of the appellants could have been part of the stolen cash, but in the absence of evidence of serial numbers or some other special marks on the bills it would not have been easy to identity as that belonging to the complainant. The appellants further claimed that if the blood stains on cloths found in one of the appellant's home was true; the police should have forwarded the same to the Chief Chemist for confirmation. With due respect, this issue was not raised at the 7 j • trial and cannot legally form a ground of appeal. The 6th ground also fails and is dismissed. None of the parties addressed me on the sentence ~ ~ ~ .... .. ~ of 30 years - imprisonment imposed. The sentence is however statutory and is upheld. For all the foregoing reasons the appeal is dismissed in its entirety. (K.K. ORIYO) JUDGE 23/9/2005 8 ..,/.