salvatory almas mushi others vs republic 2006 tzhc 212 31 august 2006

IN TH E HIGH COURT OF TANZANIA AT MOSHI CRIM INAL APPEAL NO. 80 OF 2004 (C/F DC M OSHI CR. CASE NO. 1213/2001) 1. SALVATORY ALMAS M U SH I) 2. JERO M E JOHN )........... APPELLANTS 3. TIM OTHY SIRILI ) VERSUS THE R E P U B L IC .....................................RESPONDENT s*vw; - • •* * • JUDGMENT HON. JUNDU, J. The Appellants, in the trial court were charged with Robbery with Violence c/s 285 and 286 of the Penal Code, Cap. 16, Vol. 1 of the laws. The particulars of the offence were that the th Appellants on 16 day of December, 2001 at about 19:00 hours at Sambarai Area within the Rural District of Moshi Kilimanjaro Region, did steal cash money Tshs. 215,000/=, one Automatic Watch valued at Tshs. 80,000/=, one Mobile Tshs. 120,000/=, Telephone make Siemen C. 25, all total valued at shs. 415,000/= from one Salvata w/o Karoli and immediately before or after stealing did use actual violence in order to obtain or retain the stolen property. In the trial court, the prosecution side in order to prove the charge against the Appellant, it called five witnesses. PW.4 Salvata w/o Karoli, j the complainant in her evidence adduced in the trial court she stated that on 16/12/2001, she had gone to her sister one Gerimina Kiria where she stayed till 6.00 p.m. and that she had a small child and had to board a minibus back home. She got out of the bus a little distance away from her house where she could even see her house. She took a path that led to her house. She walked about 15 paces when she suddenly saw 2nd and 3rd Appellants infront embracing each other as if they were playing. When she got near them and before she could pass them, the second Appellant grabbed her tight by the neck. The 3rd Appellant took out a small panga and cut off the belt of her pouch which was hanging in her shoulder. She fell down and all of a sudden the 1st Appellant came. At first, PW.4 thought that the 1st Appellant had come to assist her but to her surprise the said Appellant put his hand in her mouth and blocked her from shouting and he told her “Kimya usipige kelele”. The 2nd and the 3rd Appellants ran away on seeing people coming to the scene. The 1st Appellant was captured people beat him up and he named the other two Appellants as the ones who had robbed the . complainant -1*W.4 in her evidence stated that the Appellants had robbed her shs. 215,000/= in cash, a watch valued at shs. 80,000/=, mobile phone make Siemen 124 valued at shs. 120,000/=, Identity Card and other small items. She sustained neck injuries and had to be treated and she tendered PF3 as Exhibit “P I”. PW .l, PW.2 and PW.3 were among the people who arrived at the scene of the crime in response to an alarm raised by PW.4 for help. Their evidence was to the effect when they arrived at the scene of the crime they met PW.4 having been robbed by the Appellants her pouch which contained money (shs. 215,000/=), watch (shs.80,000/=) and a mobile phone worth shs. 120,000/=. The Appellants were running away but they captured the 1st Appellant, the remaining two ran fast and disappeared but the 1st Appellant stated that the pouch containing the mentioned items had been taken by the 2nd Appellant. In his defence evidence, the 1st Appellant admitted to have gone to the scene of the crime and that he was the first person to arrive there with the intention to assist PW.4 but other people who came at the scene took him to be one of the robbers and beat him up. He denied to have stolen or robbed the mentioned items from PW.4, the complainant. The 2nd Appellant in his evidence denied to have committed the offence and that he was forced to sign a prepared statement after being beaten by the police thoroughly. Likewise, the 3rd Appellant in his evidence denied to have robbed PW.4 and that he was beaten up by the police injuring one of his eyes in the process but civilians who were around had told the police that he did not commit the j offence. Having heard the evidence of the prosecution witnesses and the defence (Appellants) witnesses, the trial magistrate believed the evidence of the prosecution witnesses, he found the in m s u < * im c e c v m e n o ; im*_* • •m'Pciium! :**.*!»•"**'• i ■ <>■-■ ....... >■ Appellants guilty of the charged offence, he convicted them of the same and sentenced each of them to 15 years imprisonment. In arriving at conviction, he evaluated the evidence as follows - “The issue consequently turned out to be one of credibility. All accused admittedly, are known to complainant and to witnesses, therefore the issue of identification could not be doubted. 1st accused claim that he went to scene following the alarm raised by complainant. In other words, he claims to have visited the scene for purpose of aiding complainant. Complainant claims that ahhough‘she had thought at first that l ?t accused who is his relative, has come to aid, she was surprised when accused blocked her mouth and ordered her to stop shouting. The witness who turned out a short time after claim that on their advent, caused 1st accused and others to take to their heels and that 1st accused was phased and captured; I believed whatcomplainant and three witnesses said, as true story. I had an opportunity of seeing the defence witnesses, they didn’t impress me as reliable witnesses not only because they are closely related to accused but because their demeanour were not impressive and it is my considered opinion that they lied to gave their relative from blame.” Having been aggrieved by the conviction and sentence, the Appellants have appealed to this court in their bid to fault the Judgment of the trial magistrate. Each Appellant had filed own grounds of appeal. However, I will direct my mind to the issue of identification of the Appellants at the scene of the crime as the main point for consideration and determination. On 5/4/2006, this court, by consent, has ordered the parties to argue the appeal by way of written submission. The Appellants as well as the Republic have complied with the order of this court to that effect. The Appellants prepared and filed their submissions vide the Officer Incharge of Prison at Mwanga while Miss Mlay, learned State Attorney cited for the Respondent/Republic. She did not support the conviction and sentence for the 2nd and 3rd Appellants save for the 1st Appellant one Salvatory Almas Mushi. As we have seen above,, the, trial magistrate was satisfied with credibility of the prosecution witnesses and that the identification of the Appellants by the prosecution witnesses. This is vividly clear from the above quoted passage in his judgment. However, the Appellants in their petition of appeal and in their submissions contend that the trial magistrate had erred in law and fact as the Appellants were not properly identified as by law required because no description of identification of the Appellants was stated by the prosecution witnesses. Miss Mlay, the I l l i t l Cl l J U U t U U j i U l H f - AHV i 1UJ ».*_!. U.i U IV . 1 ii w . . u 1^ I . . v; . I t I learned State Attorney conceded this point in her submission save for the 1st Appellant. As for the 1st Appellant, Miss Mlay, in her submission contends and I completely agree with her that the said Appellant was arrested at the scene of the crime after being chased by those people who ^ te ^ tid e tT tfte 'C b ^ for -help including PW .l, PW.2, PW.3 and in addition PW.4 herself. Despite the fact that the 1st Appellant defended himself that he went to the scene of the crime to assist and rescue the complainant (PW.4), still his defence does not hold water as there is strong evidence to show that he was the one who put his hand in the complaint (PW.4) mouth and blocked her from shouting and told her “Kimya usipige kelele” Indeed, the evidence of , JtY /, UPW,2, .PW 4 ^n4 P ^ .4 herself is very clear that the 1st Appellant was arrested at the scene of the crime. As regards the 2nd and 3rd Appellants, I quite agree with the submission of Miss Mlay, that they were connected to the offence due to the statement of the complainant (PW.4) though Miss Mlay wrongly referred to her as (PW.3) who had named them to have been at the scene of the crime with the 1st Appellant. The complainant (PW.4) in her evidence at the trial court stated — i c m i u i i u c u m e C u m p i c t u ml i t .s ti i d) i n m i n c i j i i i K i U o i m * » v\ i. t w . i J w . > **m »t* • " * that after raising an alarm for help, the Appellants ran away save for the 1st Appellant who was captured at the scene of the crime. The 2nd and 3rd Appellants disappeared. PW.l and PW.2 adduced similar evidence. However, these witnesses, despite that the charge sheet stated that the ' offence was committed at 19.00 hours, alleged to have identified the 2nd and 3rd Appellants with the help of moonlight as well as the electricity lights. Be as it may, I quite agree with the submission of the said Appellants as well as that of Miss Mlay that none of the prosecution witnesses stated the description of the identification of the 2nd and 3rd Appellants and the term of that description thereof. In the upshot, I find and hold that the appeal has merit in respect of the 2nd and 3rd Appellants save for the 1st Appellant. I hereby allow the appeal in respect of the 2nd and 3rd Appellants and dismiss it in respect of the 1st Appellant. The conviction and sentence imposed t 1! . I> I. ■ 1 • ! by the trial magistrate are hereby quashed and set aside in respect of the 2nd and 3rd Appellants save for the 1st Appellant. The 2nd and 3rd Appellants are hereby set free unless lawfully held , tinder the law;' It.is so ordered. A F.A.R. JUNDU, JUDGE, \|i |' Cl l - ! l l b W ' . ' I i|s I l l i ' l m VI ■>>-. 11.' \ ! •• ' • i!« !' I .1. . 31.8.2006 Explained. F.A.R. JUNDU, JUDGE, ji.a.^uuo Coram: F.A.R. Jundu, J. For the 1st Appellant: present For the 2nd Appellant: present For the 3rd Appellant: present For the Respondent: Mr. Rwegerera, State Attorney. C/C:- Matiku Court:- Judgment delivered in the presence of the 1st, 2nd and 3rd Appellants and in the presence of Mr. Rwegerera, learned State Attorney for the Republic/Respondent. F.A.R. JUNDU JUDGE 31.8.2006 AT MOSHI