20050606 TZHC Mwanza2

APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO. 353 OF 2004 ( Original Cr. Case No. 1169 of 2000 of the District Court of Mwanza at Mwanza Before: P. KIMICHA, District Magistrate} -GERALD LUCAS ..................•_................................. ·•· ............ APPELLANT Versus THE REPUBLIC ................ ••·· ... •••··•••······•·······• .... ···••·• ..•..•.. RES PON DENT JUDGEMENT R. M. RWEYEMAMU, Judge: The appellant and 3 others was arraig~ed on a charge with two counts, each of armed robbery c/s 285 and) 286 of the Penal Code. The 2nd to 4th accused were acquitted ~hile _ie was convicted on both ·. counts, sentenced to serve· 30 years 1mpnsonment on. each , ·which sentences were ordered to run concurren ly. -Dissatisfied, he has appealed to this court. Mr. Mwenempazi learned Sf Attorney f, r the Republic supports both conviction and sentence. The background facts are brief by tha : On 20/10/2000 armed bandits broke into . . the .shop of Pw 1 at night. . They stole a number \ . of items and injured him in the process - an injury grave enough to necessitate medical attention as evidence by Pl the PF3. Pw 1 - - I -- recognized the 1st accused/appellant because the place was -lighted, 1 the appellant held ·him down as the robbery proceeded and he hit him with an iron bar. Further the appellant was a person known to. Pw 1 before, as they used to live in the same street before. When an alarm was raised and the matter reported to the police, Pw 1 mentioned the appellant. The same night, the bandits also broke into the room of Pw 2 , a· co-tenant of Pw 1 ; They attacked him as per ·P2 his PF 3, stole the head of a sewing machine. In the fracas Pw 2 testified to have · identified the 1st accused/appellant Gelard whom he knew. before. · The alarm· was heard by among others Pw,3, a policeman who was on. pafrol in the vicinity. He was with another. Immediately they saw two people on ~ bicycle, torched ~hem and he Pw3, identified the appellant who he had known for a long I time before. Those two people run and h~I ·took the bicycle. The investigator Pw4's testimony related on hoV') the first accused was· I . arrested ·gave a cautioned statement P3, w ich led to the arrest of 1 the other 3 accused in the case. In defense, the appellant gave ~ bolld denial. He however. supported the prosecution story that he 0nce lived in Mahina vicinity (where Pw 1 & Pw 2 live) but moved to Nyak to. He ciaimed to have moved following misunderstanding with Pw 1 relating· to a debt the latter owed him, a ·debt he however settled ide sungusungu of the ·area. He gave no support to this story. He c aimed to_ have signed_ a cautioned statement P3 after having been tor ured. · 2 I· ; ' The trial court found the evidence of visual identification by Pw 1 .& Pw2,.sufficient to find conviction against the appellant. 1he appellant's major contentior, on appeal is that the magistrate should not have relied on the :repudiated confession; and that the magistrate wrongly evaluated the evidence regarding visual identification. In supporting conviction, the learned Sf Attorney points to more· evidence on record. He submits that Pw 1 · & Pw 2's identification· is further supported by Pw 3 's - a patrol police officer -- who testified to. have been the appellant in the vicinity shortly after the alarm; saw the appellant with a collegue, they run , on being stopped and. abandoned the bicycle they were riding. :The learned SA further submits thatsubmits that the said evidencefof Pw 1-Pw 3 is supported by the evidence in the cautioned statem_e[1tS P3 and P6 where the • ' I . appellant explained how the offence was coi1nmitted. The He cited, as authority for reliance on these cautioned statements the case of Msisika s/o Ntoba v R (1982) TLR 131. I have checked the said authority; it does not apply in this case as the issue therein, was treatment of a confession to a person who is not a police officer or person in authority. ·As pointed out here in ·above, Pw 1 and Pw 2 bas:ed the conviction. of the appellant on the trial court's evalu tion of. the evid.ence of . . . visual identification of the appellant on the cene of crime. It was not t . ·based on the cautioned statement, is .why the 2nd to 4th 3 _) . accused'- implicated under the cautioned statements P3 and P6 were .· .rf:.- acquitted. Having gone through the whole record, I find no basis of upsetting the trial court's conclusion regarding evidence of Pw 1 and Pw 2, which as rightly pointed out by the learned State Attorney, is corroborated by that of Pw 3 a police officer who was on patrol. There is nothing on record to suggest that the three had any reason to : .. falsely accuse the appellant. Further th~ trial court who observed them testify found them credible, and I have seen :no factors, un addressed by the trial court, to make me disturb its conclusions on credibility. That evidence I also find, is strong enough to lead to a conclusion that the appellant did rob Pw 1 a~d Pw 2, and under the circumstances described, that offence was armed robbery .. . . . I . I I accordingly find this appeal to hav~ no merit, as regards conviction and sentence and dismiss it. "It is !o ordered". · R. M. RWEYEMAM JUDGE 6/06/2005 4 .,.