20060705 TZCA Tanga2

IN THE COURT OF APPEAL OF TANZANIA ATTANGA . (CORAM: MAKAME, J.A., MUNUO, J.A., And KAJI, J.A.) CRIMINAL APPEAL NO. 119 OF 2004 COSMAS KARATASI ......................... APPELLANT VERSUS THE REPUBLIC ••••••••••••••• I ■ I •• I I . I I I I •• RESPONDENT {Appeal from the conviction and sentence of the High Court of Tanzania at Tanga) {Longway, l1) dated the 6 th day of November, 2003 in Criminal Appeal No. 65 of 2002 JUDGMENT OF THE COURT 21 June 2006 KAJI, l1A: In this appeal the appellant, Cosmas Karatasi, is appealing against the decision of the High Court at Tanga (Longway, J.) dismissing his appeal against conviction and sentence in Criminal Case No. 5 of 2001 from the District Court of Muheza at Muheza. I 2 In that case, the appellant was charged with and convicted of the offence of robbery with violence contrary to sections 285 and 286 of the Penal Code, Cap 16. He was sentenced to thirty (30) years imprisonment. The facts of the case may briefly be stated as follows: On 20th December, 2001, at about 3.00 p.m., PWl Adamu Mohamed left Kibaranga Village for Furaha Village cycling. On the way he met the appellant, a fellow villager, who stabbed him twice with a big knife commonly known as "sime". PWl dropped the bicycle and the appellant took it and disappeared with it. The appellant was arrested on the following day at night at Paramba village but without the bicycle. In his defence he denied to have committed the offence. He was convicted and sentenced as above. He unsuccessfully appealed to the High Court at Tanga which dismissed his appeal for want of merit. 3 Still undaunted the appellant preferred this appeal in this Court. In his memorandum of appeal the appellant preferred three grounds of appeal which basically revolve on one ground only, the burden of proof. His contention is that, there is no evidence to corroborate 1 PWl s evidence, and that he was not found in possession of the bicycle. In the circumstances, it is his submission that the prosecution had not established his guilt to the standard required, and that the appeal should be allowed. On his part Mr. Vincent Tangoh, learned State Attorney, who appeared for the respondent Republic, resisted the appeal on the ground that the evidence of PWl left no colour of doubt that it was the appellant who robbed him of his bicycle. The learned State Attorney further contended that, the event occurred in broad daylight and PWl knew the appellant prior to the event, and that there was nothing suggesting any acrimony or grudge between PWl and the appellant to suggest a frame up. It is in the evidence of PWl that the event occurred at about 3.00 p.m. and that he knew the appellant prior to the event. In the 4 circumstances there was no danger of a mistaken identity. The appellant was properly identified by PWl as found by the two courts below. The appellant's complaint that the evidence of PWl should not have been relied upon without corroboration has no merit because PWl was aged 19 years and so his evidence did not require corroboration in cases of this nature. Secondly, the learned trial magistrate who saw PWl testifying in court found him to be credible. The learned judge on first appeal concurred with him. We see nothing to fault them on this. Generally the decision in this case was based on factual findings. It is an established principle that a court of second appeal will not interfere with concurrent findings of fact except where both courts completely misapprehended the substance, nature and quality of the evidence, resulting in an unfair conviction in which case a court of second appeal must intervene in the interest of justice; or where there are misdirections and non-directions on the evidence, in which case a court of second appeal is entitled to look at the relevant evidence and make its own findings of fact - see Salum Mhando v. R (1993) TLR 170. In the instant case both courts carefully considered the evidence and came to a concurrent finding of guilt on the appellant. There is nothing to fault them on this. The sentence imposed is the . minimum for the offence. This appeal lacks merit. We accordingly dismiss it in its entirety. DATED at TANGA this 5th day of July, 2006. -:=:-:-•-.•T _:.:, .~ ;.-:.. _:__· •;: L. M. MAKAME . STICE OF APPEAL >, !I' ~I E.N.MUNUO \ ~J!~\._ . _.-,1 STICE OF APPEAL ~~-,,,. ' ,·""·' : " ---- ___ ___,, . ,(<;,.. S. N. KAJI ~ JUSTICE OF APPEAL I certify that this is a true copy of the original.