elias vitus ndimbo another vs republic 2007 tzhc 328 6 august 2007

AT SONGEA CRIMINAL APPEAL NO. 7 OF 2007 (Original Criminal Case No. 84 of 2006 of the District Court of Mbinga District at Mbinga) ELIAS VITUS NDIMBO AND ANOTHER.........APPELLANT VERSUS THE REPUBLIC............................................. RESPONDENT Hearing Concluded: 6/6/2007 Judgment Delivered: 6/8/2007 J UDGMENT UZIA, J This appeal arises from the decision in Criminal Case No.84 of 2006 in the District Court of Mbinga at Mbinga, wherein the appellants were convicted with robbery with violence c/s 285 and 286 of the Penal Code as amended by Act no. 10 of 1989 and No.6 of 1994, in that on 21st December 2005 at 06.00 hrs Elias s/o Vitus 1 i Ndimbo and Erasto s/o Nchimbi at Mihago Village within Mbinga District in Ruvuma Region did stole Tshs 18,000/= the property of Bosco s/o Hyera and immediately before such stealing threatened one Bosco s/o Hyera with a gun in order to obtain and retain the said amount of money. t l In the second count, the appellant were charged with the offence being in unlawful possession of Firearms c/s 4(1) (a) and 34 of the Arms and Ammunition Act 1991. It was alleged that the two accused persons at the same place at about 08.00 hours were found in possession of one short gun greener make Birminghan made in England Number G 71049 without a permit or licence. In the third count, they were all charged with the offence of Possessing Ammunition c/s 4(1) (a) and 34 of the Arms and Ammunition Act 1991. It was also alleged that they were found with Ammunition without a licence or permit. The trial District Court found all appellants guilty and upon conviction, sentenced them to the statutory minimum sentence of 30 years imprisonment in the first count and 12 strokes of the case each and 15 years in the 2nd and 3rd count. Sentences were ordered to run concurrently. A driver,(PW.1) Bosco Hyera, was driving a vehicle from Ng’ombo to Mbinga town, he had also with passengers in the vehicle, at around 08.00 in the morning time, when he reached Mihago Village, just near a bridge, he saw logs laid across the road blocking him to drive through. He requested a turnboy to disembark and remove the said logs, before removing the said logs, three people appeared from the bush one was holding a gun and the other two were armed with machetes. The witnesses claimed to be familiar with the bandits, the first accused had a gun, and the 2nd accused had a machete. In order to make sure that they frighten the victims of their robbery plan, the 1st accused fired in the air twice. PW.1 and the passengers who identified the appellants after they pounced on her with other passengers. They robbed her clothes, and took shs 25,000/= from Nindi; All passengers raised alarms thereafter and villagers came for help. PW.3, one Felix Basilius Mbepera, happened to be one of the Villagers who arrived at the incident. The 1st and the 2nd accused were familiar to him, he informed the court that, the 1st accused was a resident of Litoho Village and 2nd accused person was a resident of turnboy decided to run away leaving the vehicle behind while raising alarms which alerted villagers'who came for help. PW.1 hid himself at a nearby thicket only to see the accused persons searching and stealing from passengers, he further testified that the bandits ran towards Mutiri Village and the villagers gave pursuit and managed to apprehend one of the 1st appellant who had a gun. Isabella s/o Mapunda (PW.2, happened to be one of the Mutiri Village. PW.3 participated in chasing the bandits only to arrest the 1st appellant. The 2nd appellant had a bag which he failed to carry with him when running, he eventually dropped it down, in the bag there was gun. He was arrested and were charged with the offence of robbery with violence c/s 285 and 286, and in the 2nd and 3rd counts were charged with the offence of possessing arms and ammunition. The 4th witness, No. D4578 Sergeant Japhet, investigated the case and charged the accused persons. The appellants gave a sworn defence denying involvement in the crime charged. f At the hearing, the 1st appellant reiterated his innocense in his 1st, 2nd and 3rd grounds of appeal; he complained that the prosecution failed to establish his guilt at the required standard of proof in criminal cases, that is, proof beyond all reasonable doubt. i He pointed out that prosecution witness could not identify the bandits because the bandits fired twice in the air, therefore created a tense situation. Neither could PW.1, have identified the bandits as he went to hide in the thicket and the bandits had masks covering their faces. For want of proper identification, the appellant prayed that his appeal be allowed. On the other hand, the 2nd accused was represented by Mr.Waryuba learned counsel, he submitted that the incident took place in the night at 06.00 hours, and the 2nd appellant was said to have been wearing masks, fired in the air and ran immediately after t the incident, all those incidents could give room to mistaken identify of the alleged bandits including the 2nd appellant. He cited to this Court, the case of Waziri Aman Versus Republic 1980 TLR 250. The defence counsel further contended that the 2nd appellant was said to be a watch guard, and the alleged gun was holding was said to be the property of Mbinga District Council, it would be proper for the prosecution to prove whether the said gun was the property of Mbinga District Council during trial. He also pointed out that the charge sheet shows that the i incident took place in the night; 06.00 hours, while the evidence led in support of the charge reflect day time, 08.00 hours. No efforts were made to rectify the error by amending the charge. Finally, he submitted that, there was no proof beyond doubt that the 2nd appellant was possessing the gun and Ammunition, further to f that, there was no proof on type of the gun, whether Civilian or an arm of war as it is provided in Act no. 10 of 1989. He therefore prayed to this court, that, 2nd appellant’s appeal be allowed. On the other hand, Mr. Ismail Manjoti supported the conviction and sentence. He submitted that the pertinent issue in the appeal is identification; The evidence led in support of the charge, shows that the incident took place in the broad daylight. That, eye witnesses, PW.1 and PW.2 are familiar with the bandits, could not therefore, i have mistaken the identify of both appellants. PW.3 for example is a co-villager of the 1st and 2nd appellants, so they are familiar with each other, again, could not therefore have mistaken his identify. The learned State Attorney further contended that from the evidence of PW.3, there is no doubt the 1st appellant was apprehended after the Villagers chased him. The 2nd appellant was chased in vain, but like, PW.2 and PW.3, he managed to identify the 2nd appellant as he fled from the scene of crime with other co­ bandits. He was fully identified by PW.1, PW.2 and PW.3, that he had a machete and carried a bag with him. He dropped the bag down in the course of running. The bag was found with a gun and Ammunition. PW.3 responded to P W .I’s alarms and participated in chasing the bandits, he managed to identify them all. He identified the 2nd appellant as his fellow church member who used to attend prayers at the same Parish. It is common ground that unknown people laid logs across the road in order to block coming vehicles, it happened to be the 1st and 2nd appellants who were the suspects in this case. The trial magistrate concluded that the appellants were the culprits and no other. The grounds of appeal filed by the appellants and oral submissions done in this court during hearing of the case, centered on the issue of identification. They all submitted that, there was no proof that they were identified at the scene of the crime. In this appeal the crucial issue is whether the identification of the appellants is watertight. To begin with, the time was about 08.00, it was day light, therefore there was no problem with the question of light. I have considered carefully the error on the charge sheet which read 06.00 to me, I have the reason to believe that, the error is just a typographical and therefore a minor inconsistence in view of the evidence of PW.1, PW.2 and PW.3 who identified the bandits in the broad day light at about 08.0Q in the morning. In the case of Eva Salingo, MT 622421 PTE Peter Magoti and MT 62218 Paschal Mgawe versus Republic (1995) TLR 221, the court sustained a conviction of murder because the identifying witness knew the appellants well before the incident. The court held that; “There was plausible evidence to show that the appellants were not strangers to the witness and that the circumstances at that time were favourable for unmistaken identity Secondly, the evidence led in support of the charge indicate that PW.1 and PW.2, properly identified the appellants in the broad day light searching passengers and taking money and other items. One of the bandits (1st accused) was arrested after a hot pursuit by the villagers. I am also certain from the evidence led in support of the charge that the offence of armed robbery was committed and the prosecution proved beyond reasonable doubt because the 1st appellant fired in the air to threaten the PW.1 and PW.2 together with the passengers. They also robbed money and some items. The definition of armed robbery was given in the case of Michael Joseph Versus Republic (1995) TLR 278, at page 279. “(i) Though there is no express and specific definition what constitutes “armed robbery” it is clear that if a dangerous or offensive weapon or instrument used in the course of a robbery such constitute “armed robbery” in terms of the law as amended by Act No. 10 of 1989. (ii) Weapons are not confined to firearms only, other types of weapons such as knives are also included" In the instant case, the charge was proved as indicated above. On the question of possessing the gun and ammunition, there is ample evidence from PW.2 and PW.3 that the 2nd accused dropped down a bag which he carried while running away from the t villagers who were chasing him. The bag contained the gun and ammunition. For the above stated reasons I dismiss the appeals. L. M. K. UZIA JUDGE 6/8/2007 Right of Appeal explained. Li M. K. UZIA JUDGE 6/8/2007 DISTRICT HIGH COURT SONGEA