20060505 TZHC Moshi

'\· pD 1\~·----- ~ I .,, ,-\ _-/ IN THE HIGH COURT OF TANZANIA \', ATMOSHI 0 (DC) CRIMINAL APPEAL NO. 38 OF 2003 (ORIGINAL DC ROMBO CR. CASE NO. 359/2001) GALLUS FAUSTIN STANSLAUS@WASIWASI) SEVERINE FRANCIS MASAWE - - - - - ) APPELLANTS VERSUS THE REPUBLIC - - --------------------------- RESPONDENT JUDGMENT HON. JUNDU, J.·· () The Appellants, in the trial court, were jointly and together charged with Armed Robbery c/ss 285 and 286 of the Penal Code, Cap. 16, Vol. 1 of the laws as amended by Act No. 10/1985. The particulars of the offence were that the Appellants jointly and together on the 9th day of June, 2000 at about 00.30 hours at Mrere Mashati Village, within Rombo District in Kilimanjaro Region, did steal cash shs. 900,000/= and one Radio National Panasonic 4 band valued at shs. 55,000/=. All the said properties were valued at a total of shs. 955,000/= the property of one Donath s/o Kamili Tarimo, and immediately after such time of stealing did use unknown gun and panga to the said Donath s/o Kamili Tarimo in order to retain the said property. Having heard the evidence of the prosecution's witnesses and that of the defence, the trial magistrate found the Appellants guilty of the offence, convicted them and sentenced them to the statutory minimum sentence of 30 years imprisonm~nt. Having been aggrieved by the conviction, (( __ ) sentence and compensation order passed by the said trial magistrate has appealed to this court listing four (4) gr~unds of appeal in their Amended Petition of Appeal. The said grounds of appeal are:- (1) That the learned trial Magistrate grossly erred both in law and fact in convicting the Appellants with the offence of armed robbery in the absence of any credible evidence. (2) That the learned trial magistrate erred both in law and fact in holding that the Appellants were properly identified as the persons who committed the offence. (3) That the learned trial magistrate made a gross error in law and fact in making a finding that the · second Appellant was named by the first Appellant as to have participated in the crime - a finding which lacks evidence in support. 1 '\ i ' 1' (4) That the learned trial magistrate made an error in law in ordering that the Appellants to compensate shs. 955,000/= to the Complainant. .,Q Based on the aforesaid grounds of appeal, the Appellants in their Amended Petition of Appeal prayed to this court to quash the conviction entered by the trial magistrate and set. aside the sentence and the compensation order. On 16/11/2005, by consent, this court ordered the parties to argue the appeal by way of written submissions. The parties have complied with the order of this court as regards due dates for filing their submissions, Mr. Njau, learned advocate is advocating for the Appellants while the Republic/Respondent is represented by Miss Mak.ala, learned State Attorney. Mr. Njau in his submission has argued grounds 1 and 2 collectively. The issues to be considered and determine in these two grounds of appeal are whether the prosecution in the trial court ·((0 had credible evidence warranting conviction of the Appellants with the offence of armed robbery and whether the Appellants were properly identified as the persons who committed the offence.• Likewise, Miss Mak.ala in her submission has answered the said two grounds of appeal collectively. Mr. Njau in his submission contends that the charge sheet and in particular the particulars of offence states that"----- and immediately after such time of stealing did use unknown gun and panga to the said Donath s/o Kamili Tarimo in order to retain the said property", however, in his view, the said particulars are nowhere supported by the evidence adduced in the trial court because nothing is on record to affirm or even suggest that a gun and panga were used or even directed to the complainant ' (PW.I). Mr. Njau contends further in his submission that PW.3 a police constable had told the trial court that he had visited the crime scene and picked therein an unused c~ridge of pistol which was admitted as Exhibit Pl whereas the charge sheet talks of a gun and obviously in his view the pistol ,,( ) bullet had no relationship with the gun. On the basis of the above submission, Mr. Njau contends that it was wrong for the trial magistrate to have made a finding that the people who had gone to the complainant's home had a gun and used it. As regards identification of the Appellants, Mr. Njau in his submission contends that the trial magistrate had found that the complainant (PW.I) and his wife (PW.2) did sufficiently identify the Appellants. However, in his view, this is not true, because their home ~as invaded at mid-night when most probably it was dark and that though PW.I and PW.2 in their evidence had alleged that there was electric light in the house, this could not be true at that hour. Mr. Njau contends further in his submission that if one is attacked mid night hours, it is not easy to mak~ an identity due to panicking 2 and that had the complainant (PW.l) and his wifo (PW.2) identified their attackers it would not take them such a long time to be arrested especially when there is no evidence that the Appellants had 0 escaped from the village. However, having read the proceedings and the judgment of the trial court, I am satisfied as submitted by Miss Makala that the Appellants were convicted by the trial magistrate, after the prosecution evidence had proved their guilty beyond reasonable doubt. I quite agree with the submission of Miss Makala that from the evidence adduced by PW.l and PW.2 in the trial court it was established that the Appellants had used a panga and a gun in order to obtain the stolen Tshs 900,000/= and the Radio. PW.1 and PW.2 were the eye witnesses to the crime and the victims as well. The record clearly shows as submitted by Miss Makala that PW.1 and PW.2 had told the trial magistrate that the person who had a gun was the third person who was not in court but was in the company of () the Appellants. PW.1 and PW.2 had told the trial magistrate that the said third person had fired the gun twice in order to scave them and the neighbours who were likely to respond to the alarm raised by PW.2. I quite agree with the submission of Miss Makala that PW.3, D.5863 DC. Omari in his evidence had told the trial magistrate that he had found a cartridge of pistol outside the house of PW.l and PW.2 which was tendered in court as Exhibit P .1. In my considered view, the said cartridge had well corroborated the evidence of PW. I and PW.2 that there was a gun fired twice at the crime scene. Mr. Njau has gallantly tried to show that the charge sheet talks of a gun hence the unused cartridge of a pistol (exh.P 1) had no relationship with a gun. I am of the firm view that a firearm was used and fired by the Appellants be it a gun or a pistol in order to retain the property i.e shs.900,000/= as well as the Radio they had stolen from PW.I. \ ) As to the identification of the Appellants, I also quite agree with the submission of the Miss Makala that PW. I and PW.2 in their evidence had clearly told the trial magistrate that they knew the Appellants long before the fateful night since they used to reside with them in the same village. Further, I quite agree with the submission of Miss Makala that PW.I and PW.2 in their evidence had told the trial magistrate that they had been able to identify the Appellants by the electric light which was alight inside the house. In my considered view, the question of panic raised by Mr. Njau in his submission does not hold water because the Appellants and their co-accused persons took time to inquire the whereabouts of the money which PW.1 had received from the vehicle sale as submitted by Miss Makala. Further, it is in evidence that he Appellants left PW. I and went to take PW.2 from another room and brought him to where PW. I was. I quite agree 3 ·•\ I with fhe submission of Miss Makala that this span of time was enough to dispel the fear or panic on the pant of PW.I and PW.2 hence properly identified the Appellants. Therefore, the trial magistrate based his Onviction on the evidence of the eye witnesses who had properly identified the Appellants and not on the false assumption as contended by Mr. Njau, learned counsel for the Appellants. Based on the aforesaid, I conclude that ground I and 2 of the appeal has no merits. I will move to consider and determine the third ground of appeal in which the Appellants contend that it was wrong for the trial magistrate to state that the second Appellant was arrested as he was named by the I st Appellant. Mr. Njau in his submission contends that this was a very misleading assumption as it is not supported by any evidence and that it was unfortunate that the lower court based its conviction on such false premises. Miss Makala did not specifically respond on this point. I quite agree with Mr. Njau that there is no evidence on the record to support the finding of the trial magistrate that the 2nd Appellant was arrested as he was named nd :() the I st Appellant. However, in convicting the 2 Appellant, the trial magistrate based his conviction on the evidence of PW .1 and PW.2 as eye witnesses at the crime scene. PW .1 and PW .2 in their evidence alleged that they had identified both Appellants. Therefore, I find and hold that the 3rd ground of appeal has no merit. In the fourth ground of appeal, the Appellant contends that the learned trial magistrate made an error in law in ordering that the Appellant compensate shs. 955,000/= to the complainant. The issue is whether it was proper for the trial magistrate to order compensation of shs.955,000/= to the Appellant. In his submission, Mr. Njau contends that the order to compensate the complainant shs. 955,000/= made by the trial magistrate is baseless and not supportable in law and that there is no evidence adduced at the trial court to show that the complainant had actually lost this amount. In her ·' submission, Miss Makala replied that the law is very clear that a court in its criminal jurisdiction can ( ) order compensation if it sees it justifiable hence in her view it was just for the trial magistrate to order the Appellants to compensate the complainant for the loss he had suffered at the hands of the Appellants. I quite agree with the submission of Miss Makala and vide the evidence of PW.I and PW.2 it was established that the Appellants had stolen shs. 900,000/= plus a Radio valued shs.55,000/- hence it was proper and justified for the trial magistrate to have ordered the Appellants to compensate the complainant (PW. I) the amount of shs.955,000/=. Therefore, I find and hold that the fourth ground of appeal has no merit. .4 .'.''\ t' \ 'fn the final result, this appeal has no merit. I hereby accordingly dismiss the same. I uphold the conviction, sentence and the compensation order made by the trial magistrate on the Appellants. It is so ({)dered. · · ~~\. ,' F.A.R. JUNDU, JUDGE, 5/5/2006 Right of Appeal Explained. F.A.R. JUNDU, JUDGE, 5/5/2006 '0 5.5.2006 Coram:- F.A.R. Jundu, J. For the 1st Appellant ) For the 2nd Appellant ) - Mr. Njau, Advocate For the Respondent: Miss Rugaihuruza, State Attorney. • C/C:- Muyungi Court:- Judgment delivered in the presence of Mr. Njau, learned advocate for the Appellants and in the F.A.R. JUNDU, JUDGE, 5/5/2006. 5