omary lamini kapela vs republic 2006 tzhc 91 18 october 2006

IN THE HIGH COURTOF TANZANIA AT DAR ES SALAAM CRIMINAL APPEAL NO. 141 OF 2005. (originating from Cr. Case No. 216/2004 District Court of Kibaha at Kibaha) ? ' OMARY LAMINI @ KAPERA ... APPELLANT. VERSUS REPUBLIC ......................... RESPONDENT/APPLICANT. Date o f Last Order: 16A0/2006 Date of Judgment: 18A0/2006 fUD&MENT MLAY, J. v. The appellant was convicted of the offence of Armed Robberv contrary to sections 285 and 286 of the Penal Code and was sentenced : : ' .-'S to thirty (30) years imprisonment by the District Court of Kibaha. Being aggrieved by the conviction and sentence, he has now appealed to this court on four grounds, which are as follows: -*• That ........ the Resident Magistrate erred in law and misdirected himself in grounding con^ictip,| based on the evidence of a single witness without corroboration. ' 1 f .. 2. That the trial Magistrate erred in law and fact when he believed the complainants story without tnciking analysis about the weapon (Panga) which alleged to hape effect the said robbery.... 3. That the trial Magistrate erred in law and fact when he convicted the appellant based on the evidence ofPW2 and PW3 without taking into account that, the .... Witnesses, their evidence was taken from closed family, so the testimony., needed, gpnftrmation... before it could be relied upon as a basis of conviction. ?1 ' 4. That the learned trial Magistrate erred in law and fact when he failed ‘OJ:i J~'C to consider the defence adduced in cause by the appellant. The grounds of appeal in the memorandum of appeal are 'oil! niakin^ accompanied by submissions and legal authorities in support of each ground of appeal. For the 1st ground of appeal, the appellant cited TINGA KELELE VS REPUBLIC 1974 LRT 6 and the holding that: "The trial Magistrate must warn himself of the danger of convicting the Accused on the evidence of a single witness without corroboration". He also cited HASSANI .s/o HARBI Vs. Republic 1973 LRT N.37 in which it was stated: ! "It is a danger to convict the accused on the ( fv . evidence of a single witness without corroboration". On the 2nd ground of appeal the appellant argued that: I'.-. "It is not fait for the trial Magistrate to believe simply that the appellant had a panga and used it in the robbery without any evidential material to prove that, the appellant had caring the alleged panga when the appellant was accompanied by another man... and started off to Ruvu traveled *rS*' by Bus from Dar es salaam if true. That means the said weapon could Have been seen due to the fact that a panga is than knife......." He further contended .th&t the Magistrate did not appraise the charge that section 285 and 2&6 of the Penal Code refer to robbery with violence and not armed robbery. He referred to the case of IBRAHIM HASSANI AND ANOTHER VS REPUBLIC [1991] TLR 89 ■ ' 1,? /'?v^ >L\ , As for the 3rd ground of appeal, the appellant cited the case of RAMADHANIJAMSIGA VS REPUBLIC Criminal Appeal No. 113 of irH ./ 1991 (unreported) in which allegedly, it was held that the trial was a V* I. - nullity on grounds that the witnesses were of one family whose evidence must be corroborated as they could have fabricated the evidence against the accused person for therein benefit. :L cU>s'" r In support of the la^grOund of appeal, the appellant contended that "The defence o f appellant w as sufficient to be acquitted from this m atter bu t the trial M agistrate erred in conviction on appellant based on weakness o f the appellant defence He cited the case of Republic Vs CHEMUCHIMU WERO OLONGO 91957) 4 EACA. At the hearing of this appeal the appellant prayed to adopt the contents of his memorandum of appeal which include the above submissions. Mr. Mapinduzi, learned State Attorney supported the i „v conviction of the appellant ^On .the 1* ground Mr. Mapinduzi submitted that there was also circumstantial evidence to show that it was the appellant who committed the ^)|fence. / ; ,*( }i ’ }■ * ••" - V He referred to the evidence, of PW2 and PW3 that it was the appellant who persuaded PW2 that there were bags to be found at Ruvu NAFCO for purchase and PW1 saw PW2 was wounded soon after the robbery. On the 2nd ground JVlr. Mapinduzi submitted that r 1V ■Civ the failure to find the panga with* Y^hjch the robbery was committed is irrelevant because there was the evidence of PF.3 to prove that PW2 was wounded. 4 On the 3rd ground that PW2 and PW3 are members of the same in " *■" . family, Mr. Mapinduzi submitted there is no law preventing members of the same family froyn -testifying and there was nothing ■ :3'= in the proceedings to suggest that PW2 and PW3 had any reasons to implicate the appellant. On th£ 4th,ground that the trial Magistrate Hi■i: K convicted the appellant on the weakness of the defence or that the 1'V,• magistrate did not consider t;he defence, Mr. Mapinduzi submitted >L’" ?'$■■ that the trial magistrate did consider the appellants defence of alibi and rejected it. He submitted that the appellant was properly convicted on the strength of the prosecutions evidence. During trial it was the prosecution's case that the appellant and *- ^ sy' one JAMAL who was not apprehended and charged, went to the shop of PW2 and found PW2 witfi^his brother PW3. It was in evidence by PW2 and PW3 tjj^t ($ ie?appellant who is the in-law of PW2 and PW3, told PW2 thiait there were empty bags (viroba) at Ruvu NAFCO. It was in evidence th^t. ^V2 dealt with the business of selling empty bags. It was in ^yix|enc^|v.that the appellant informed PW2 that Tshs.470,000 was,-inquired for the bags and according to PW2, he took cash. 470,000/= for the purpose, which according to PW3, the money was supplied by him. PW2 told the court that he left with the appellant accompanied by the appellant's companion by s> ’■ % : . * 11. bus and got off at Ruvu Darajani ^nd as they were walking, the •V < A*' J . * ^ } appellant pulled out a sword (sirjie) and ordered PW2 to give him the money or he would kill PVV2. PW2 then give the money Tshs.470,000 to the appellant and the appellant told PW2 to leave but as he was leaving, the appellant ,an$ his companion attacked PW2 cutting him with the sword and^, they ran away. PW2 was unconscious and later taken to ho>spitaj by a passerby, after reporting to the police and obtaining a PF 3 which was produced as Exh. P3. The PF 3 shows that PW2 sustained "CUT WOUNDS 3 cm", swellings and bruises" and had to be given blood transfusion. According to the PF 3 the cut wounds were caused by a sharp object. In his defece the appellant denied to have committed the offence and alleged that he had been at; Makakunyini - Korogwe when the offence was committed. The trial Magistrate rejected th^ appellants alibi as he had not given notice under section 194 (4)|p£$|| Criminal Procedure Act 1985 and that he did not call any Witness to prove thaot he was at Makuyuni at the time of th$M ^ ff% e. The Magistrate did however find that:- i "The -IL'Vi !' , Li A complcmcM ALLY V IBRAHIM grappled by robbers who robbed from him money Tshs. 470,000/= and during the said robbery ALLY s/o IBRAHIM was wounded by a Panga and that the person who robbed his money and wounded him on the material date and time were none other than the accused in this case Omari s/o T ' ■ .1 u:A; Lamm @ Kapea and his friend called Jamal who , •r . v - ;- / - ■ S ■)- J has not been arrested: ..... Having given due consideration to the judgment of the trial court and the appellants grounds of ^pjjeal including the arguments contained in the memorandum' of; appeal; I agree with the learned State Attorney Mr. Mapinduzi .that the appellant was properly convicted. He was convicted n6t ohJy on the evidence of one witness PW2 but also on the evidence of PW3 who was present when the appellant and his companion cameito the shop of PW2 and told him t - /( - ti<,'>ci c t i i i about the availability of empty bags at Ruvu NAFCO at the price of Shs.470, 000/=. As the trial Magistrate correctly found, there was evidence to prove that robbery did take place and in the course of it, PW2 was wounded by being cut with a sharp instrument and was admitted m hospital. The f^ct that^|ie sime or Panga was not produced in evidence is of no eff^t, ^|going by the PF 3, there is no doubt that PW2 was cut with a sharp instrument like a panga or sime. I do not find any reasqr^ why the evidence of PW2 and PW3 needed corroboration. The appellant h^s not suggested any reason at the hearing of this appeal or^u^n^^ajl why PW2 and PW3 should want to implicate him in the ro^epy. .This court is satisfied that this appeal has no merit. v 7 As the appeal has ij^jaae^t ;j$*s dismissed in its entirety. Delivered m the presence of Ms. Lushagara and the appellant this 18th day of October, 2006. The right of appeal is explained.. .