20060519 TZHC Dar es Salaam A

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM 0 CRIMINAL APPEAL NO. 72 OF 2004 1.SOSTENES S/O JOHN ............................·... } 2.ABDULAZIZI S/O MBEGA......................... APPLICANTS VERSUS THE REPUBLIC ........................... ~ .................... RESPONDENT JUDGEMENT Oriyo, J. The two appellants were jointly and together charged with the offence of Armed Robbery contrary to sections 285 and 286 of the Penal Code read together with the Written Laws Miscellaneous A,mendment Acts No. 1o·of 1990 and No. 27 of 1991. The particulars of the offence were that on 2/12/2002 at Dutumi Village, Morogoro, the appellants stole cash Tshs 900,000/= the property of one Gabriel Kashasha and before such stealing did use actual violence to Ibrahim Dailo by shooting him with a gun in order to obtain or retain the said money. They were each convicted and sentenced to imprisonment for 30 years plus 12 strokes of the 1 cane on 25/2/2004 in criminal case No. 544 of 2004 in the District Court of Morogoro at Morogoro. The appellants felt aggrieved and appealed against both the convictions and sentence on 5 grounds. At the hearing, the case for the Republic was argued by Ms Saiga, learned state Attorney, while the appellants appeared in person. Ground 1 and 2 of appeal were argued together and they stated:- 1. That the trial magistrate erred by convicting the appellants relying on the evidence of identification at the scene by PWl and PW2, while there were no detailed descriptions of the robbers advanced by the prosecution. The prosecution failed to tender the statements of PWl and PW2. 2. That the trial court erred when it convicted on identification made at the scene of crime while identification was difficult during the time of the night. The appellants cited, in support the Court of Appeal decision in WAZIRI AMANI Vs R (1980) TLR 250 at page 22. However the respondent contended that the identification of the appellants was watertight. It was argued that though it was 2 night time, identification of appellants by PWl Catherine George and PW2 Ibrahim Daile was easy due to apressure lamp at the scene. That was how PWl and PW2 were able to identify the first appellant and gave his details as wearing a black jacket and was holding a gun. They also identified the second appellant and described him as wearing a brown Kanzu, was holding a "Panga" and had some of his teeth missing. In addition, the testimony of PW3, E.545 D/C Zacharia, the arresting officer, corroborated that of PWl and PW2. PW3 testified that at the scene of arrest, the appellants attempted to escape when they saw the police. And when arrested the appellants were found with the cloth bag with coins, a weapon and a brown Kanzu as mentioned by PWl. The issue in ground one and two is whether the appellants were correctly identified as some of the robbers who took part in the robbery incident at Dutumi Village on 2/12/2002. The appellants correctly relied on the decision in WAZIRI AMANI Vs R(1980) TLR 250 that no Court should act on evidence of visual identification unless all possibilities of mistaken identify are eliminated and the court is fully satisfied that the evidence before it is absolutely watertight. On the basis of this principle, the appellants argued that their visual identification at the scene of crime was not correct. According to the trial record, 3 the two grounds of complaint have no support. The descriptions of appellants at the scene of crime were given by PWl and PW2 at pages 6, 7 and 8 of the proceedings. They stated that the first appellant who wore a black jacket was also carrying a gun and that his face was not masked or hidden. The second appellant was described as wearing a brown "Kanzu", holding a panga and had some of his teeth missing. His face was also not hidden. The testimony of PW3 stated that some of the items mentioned by PWl and PW2 above were found with the appellants at the time of their arrest. Further , it was testified that though the incident occurred at 8PM, the place was well lit with the assistance ·of a pressure lamp; the encounter between the appellants and PWl and PW2 which lasted for over 30 minutes was quite close. The appellants did not controvert their own descriptions or that of the scene of the incident. In view of the foregoing, I am of the considered view that the visual identification as of the appellants was correctly done by PWl and PW2 and corroborated by PW3. The trial court was justified to rely on the visual identification as the principles laid down in WAZIRI AMANI Vs R were met. Therefore grounds 1 and 2 of appeal fail and are dismissed. 4 Ground 3 of Appeal stated:- The trial court erred for convicting the appellants on the testimonies of PWl and PW2 without conducting an identification parade to prove the legality of the identification at the scene of crime. The appellants relied on the decision of this court in the case of JOHN OPIO AND ANOTHER Vs R (1969) HCD 59. However the respondent argued that the decision in the case above is only applicable where visual identification at the scene was not proper and was difficult; which was not the case here. The purpose of an identification parade is stated under SECTION 60(1) of the Criminal Procedure Act 1985 as follows:- " Any police officer in charge of a police station or any police officer investigating an offence may hold an identification parade for the purpose of ascertaining whether a witness can identify a person suspected of the commission of an offence." The purpose of an identification parade is clearly stated above. As it was rightly argued by the respondent, there was no need for an identification parade in the case at hand because identification at the 5 ;J scene was not difficult. Under the circumstances, ground 3 of appeal fails and is dismissed for lack of merit. Ground 4 of appeal stated:- The trial court erred and misdirected itself when it totaly refused to consider the appellants defence of ALIBI adduced in Court by DWl and DW2. On the appellants defence of ALIBI, the respondent contended that the appellants had failed to give prior notice of their intention to rely on ALIBI as required by Law; which was contrary to SECTION 194 (4) of the Criminal Procedure Act, 1985 the respondent argued that despite the omission by the appellants, the trial court allowed the evidence of DWl and DW2 that the appellants were elsewhere at the time of the incident. Such evidence was taken into account but was rejected due to the over whelming evidence of the prosecution. The consequences of failure to give NOTICE required under SECTION 194 (4) of the Criminal Procedure Act are as provided under SECTION 194 (6) as follows:- " If the accused raises a defence of alibi without having first furnished the particulars of the alibi to the court or to the prosecution pursuant. to this section, the Court may in its 6 1 discretion, accord no weight of any kind to the defence.( emphasis supplied). The wording of the statute is very clear in that the trial court was not bound to consider the defence of ALIBI because there was no prior notice as required. However the appellants complaint in ground 5 is not supported by the record because their defence of ALIBI was considered by the trial court. In the last paragraph at page 4 of the judgment, the trial court stated:- " In their defence, the accused persons show that at the time of the robbery they were not at Dutumi. Whereas the 1st accused person was at Dodoma, the 2nd accused person was at Dar es Salaam. This is the defence of alibi." However, at the top of page 5 of the judgment, the trial court stated why it rejected the appellants defence of ALIBI:- " Whether the defence should be accorded weight I find the answer is no. It is no at the effort of the prosecution evidence which leave no doubt that the accused did commit the offence they are facing in court." Accordingly ground 4 of appeal has no merit and is dismissed. Ground 5 of Appeal stated:- 7 ,. That the trial court erred when it became satisfied by the prosecution evidence that PW3 recovered the stolen property and arrested the appellants at Tununguo while the prosecution failed to tender the Seizure receipt to prove the possession of Shotgun and other things; and no other evidence to support PW3 evidence. The response of the respondent was that police have legal powers of arrest on mere suspicion without warrant of arrest; and PW3 acted on those powers. On the lack of corroborative· evidence from the scene of arrest the respondent argued that it was unnecessary because the robbery and the arrest took place at two different places. Secondly it was argued that the prosecution had adequate evidence to prove the case. SECTION 4 2(2) of the Criminal Procedure Act provides:- "A police officer who believes on reasonable grounds that a person is carrying an offensive weapon or anything connected with an offence may stop that person and seize any such weapon or thing that is found on the person" PW3 testified that the appellants tried to run away on seeing the police and the appellants did not controvert that evidence. That was a reasonable ground for the police to act under the above legal provision. In addition to the items seized from the appellants, there 8 I was corroboration of PW3 testimony by those of PWl and PW2 on the descriptions of the appellants clothing at the scene of crime including the brown "Kanzu", the bag of money made of clothing material, the weapon, the missing teeth etc which were found with the appellants at the time of arrest. Ground 5 of appeal also lacks merit and is dismissed. For the foregoing reasons I find that the appeal has no merit and is dismissed. K. K. Oriyo JUDGE 19/05/2006 9