benego mathayo other vs republic 2006 tzhc 119 18 september 2006

IN THE HIGH COURT OF TANZANIA AT PODOMA APPELLANT JURISDICTION DC CRIMINAL APPEAL NO. 55 OF 2005 ORIGINAL CRIMINAL CASE NO. 97 OF 1998 OF THE DISTRICT COURT OF MPWAPWA DISTRICT AT MPWAPWA BENEGO MATHAYO & OTHERS .... APPELLANT VERSUS THE REPUBLIC................................... RESPONDENT JUDGMENT JULY 14,2006 & SEPTEMBER 18,2006 MJASIRI, J: This is an appeal from the District Court of Mpwapwa. The Appellants Benego Mathayo, Ignas Mgeni and Shida Sadala were charged and convicted with the offence of robbery with violence Contrary to Section 285 and 286 of the Penal Code. l The Appellants were sentenced to 30 years Imprisonment. Being dissatisfied with the decision of Mpwapwa District Court, the Appellants have appealed to this Court against both conviction and sentence. The Appellants have filed 7 (seven) grounds of appeal. It was alleged by the prosecution that the three Appellants with others on the 14th day of April 1998 at about 23.00 hours at Manyata Village within Kongwa District in Dodoma did steal Tshs. 1,050,000/= and one Radio Cassette from Alphonce Ndikwega and immediately before or after such time of stealing threatened the said Alphonce Ndikwega by firing a short gun. The Republic was represented by Mr. Mayeye State Attorney and the Appellants appeared in person. The Republic supported the conviction. Mr. Mayeye submitted in Court that the conviction of the Appellants was based on the evidence on record. According to Mr. Mayeye, the Appellants were properly identified by the prosecution witnesses. The first Appellant was identified by PW 1, PW 2, PW3 and PW 4. The first Appellant was known to PW 1, PW 2 and PW 3. The second Appellant was identified by PW 1, PW 3, PW 4 and PW 5. The second Appellant was known to PW 1, PW 3, and PW 4. The third Appellant was also identified by PW 1, PW 2, PW 3 and PW 5. PW 6 2 also identified the third Appellant. The third Appellant was well known to PW 1 and PW 6. Mr. Mayeye also submitted that shortly after the incident PW 1 informed PW 4 the names of the people who invaded them and gave them a description of the clothes they were wearing. The basis of the conviction of the three Appellants was the evidence of PW1, PW2, PW3, PW4 and PW5. According to the trial magistrate the Appellants and the witnesses were from the same village, Manyata Village and were well known to PW1, PW2, PW3 and PW4 and therefore there was no question of mistaken identity. The Appellants filed numerous grounds of Appeal but central to the appeal is the issue of identification. That is whether the Appellants were properly identified by the prosecution witnesses. Upon reviewing the evidence on record and the judgment of the lower court I am inclined to agree with the submissions made by the learned State Attorney that the Appellants were clearly identified. According to the record of the lower court, all the prosecution witnesses testified that a kerosene lamp was burning when PWl's 3 house was invaded. Torches were used by some of witnesses and there was enough light for the Appellants to be identified. There is evidence that PW 1 was injured, PF 3 report exhibit PI relevant. He was attacked with an iron bar, a double edged knife and sticks. On looking at the evidence as a whole, I have no basis to fault the judgment of the lower court. The trial magistrate had the opportunity to see the prosecution witnesses and to evaluate their evidence which he relied upon to base his conviction. The Appellants were well known to the prosecution witnesses, being fellow villagers of Manyata Village. of what is stated hereinabove the appeal is hereby (SAUDA MJASIRI) JUDGE SEPTEMBER 12, 2006. 4 Delivered in Chambers this 18th day of September 2006 in the presence of all the three Appellants and in the presence of Mr. Pande State Attorney. (SAUDA MJASIRI) JUDGE SEPTEMBER 18, 2006 5