20070824 TZHC Mbeya3

·.-~-~- ...,>,;;:.t. IN THE COURT OF APPEAL OF TANZANIA-- AT MBEYA (CORAM: LUBUVA, J.A., NSEKELA, J.A~;~A~d MBAROUK, J.A.) • CRIMINAL APPEAL NO. 74 OF 2007 ABDUL HASHIM KIPONZA .......................................... APPELLANT VERSUS THE REPUBLIC .......................................................... RESPONDENT {Appeal from the decision of the High Court of Tanzania at Mbeya) {Othman, J.} dated the 5 th day of July, 2005 in (DC) CRIMINAL APPEAL NO. 53 OF 2003 JUDGMENT OF THE COURT 20 August & 7 September 2007 LUBUVA, J.A.: In the District Court of Iringa at Iringa, the appellant, Abdul Hashim Kiponza, was charged with and convicted of the offence of robbery with violence contrary to sections 285 and 286 of the Penal _ _c _ _ £gde.-ll"-Ffe was sentenced to a term of thirty (30tyears imprisonment. Unsuccessfully, he appealed to the High Court (Othman, J.) and now has preferred this second appeal. 2 The facts giving rise to the case may briefly be stated. The complainant, Mariki s/o Lyimo (PW1) is a resident of Makorongoni area carrying on business at his shop at Miyomboni Street within the Township of Iringa. On.19.1.2002 at about 10.30 p.m., the appellant after closing his business stopped over at Madarasi Grocery for a drink and watching TV among other people. While on his way home, somewhere at Lwangilo Guest House, Makorongoni Area, he saw some people whom he had seen earlier at Madarasi Grocery trailing behind him. However, he proceeded with his journey home. On arrival at the compound of his house, he was attacked by a group of people who squeezed hard on him by the neck, and beat him. He fell down and in the process, he was robbed of his money Shs. 2,500/= and a Watch Seiko Five. The attack took place within the compound of the house of PW1 just outside the door. · PWl · · · shouted to his wife "Mama Zawadi, Mama Zawadi, they are killing me outside". When the wife and his son came out in response to the cry for help, the bandits fled leaving him lying on the ground injured. 3 By aid of light from electric tube l_ights around his house, PWl was able !9 _identify .the ·appellant among the invaders. PWl was .·• .. .. ·•.,_ ·~.;tush-ed·fo 'the hospital for treatment where he was issued with the Form PF3 Exh. P2. Upon investigation, the appellant who, at the trial was referred to as the 3rd accused, was arrested and charged together with three others not subject of this appeal with the offence of robbery with violence. The appellant and another, the first accused at the trial, were_ convicted and sentenced to a term of thirty (30) years imprisonment. The appellant was aggrieved, he appealed to the High Court, where as said before, the appeal was dismissed. In this appeal, Mr. Mushokorwa, learned counsel, advocated for the appellant. Mr. Mwenda, learned State Attorney, appeared for the respondent Republic. In his grounds of appeal, Mr. Mushokorwa, · ,. .. - raised the following complaints. First, that the appellant was not properly identified by PWl, the complainant. Second, that the first appellate High Court erred in disregarding the rule of adverse 4 inference. Thirdly, that the wrist watch sold to PW2, Seiko Five, was not proved to belong to PW1. In elaboration, Mr. Mushokorwa strongly urged that the trial court and the first appellate High Court erred in holding that PW1 sufficiently identified the appellant at the scene of the crime. He maintained that considering that the incident took place at night, the location of the electric tube lights was not indicated and the complainant was in a confused condition after the attack, the conditions were not favourable for proper identffication. Furthermore, Mr. Mushokorwa, emphasized that in view of the fact that the distance from where these tube lights were positioned and where PW1 was attacked was not specified, the tests laid down by this Court in Waziri Amani V Republic [1980] TLR 250 were not _satisfied. Counsel also submitted that as PW1 was bus;r-,watching TV;-~~---~---~··~·· at Madarasi Grocery, it was not possible for PW1 to see and identify the appellant. 5 Mr. Mwenda, learned State Attorney, was quick to respond to these submissions. He said PW1 properly identified the appellant as the learned High Court judge found. In the first place, the incident took place within the compound of the house of PW1. There was sufficient light from five (5) electric tube lights. The State Attorney further pointed out that although the exact location of the tube ligbts was not indicated, but it is not disputed that there was sufficient light at the compound. Mr. Mwenda also observed that PW1 had earlier seen the appellant among others at Madarasi Grocery. On the whole therefore, Mr. Mwenda contended that the circumstances of the case were such that the tests laid down in Waziri Amani (supra) had been satisfied. The central issue is whether the appellant was sufficiently identified at the scene of the incident. Mr. Mushokorwa was firmly of . the view that the identification ""35 not watertight. His main· ground·---..C--····~"'·"'"-- was that the distance between the point where PW1 was attacked and where the lights was not shown. With respect, we do not go along with Mr. Mushokorwa on this aspect. lR our view, -what was 6 important is the fact that in the compound of the house where PWl was attacked, there were electric tube lights which sufficiently illuminated the area. The intensity of the tube lights as a matter of fact has not even been controverted by Mr. Mushokorwa. Additionally, we agree with Mr. Mwenda that prior to the attack, PWl had seen the appellant at the Madarasi Grocery watching TV. We are unable to accept Mr. Mushorokorwa's contention that as PWl was busy watching television programme, it was not possible for him to see the appellant there. With respect, the essence of the evidence of PWl on this point is that he had seen the appellant at the Grocery among other people there without knowing his name. If anything at all, this was_ a recollection on the part of PWl that the appellant, among the invaders at the compound, was at the Grocery. What is more, after leaving the grocery, on the way home, PWl was . live to the fact that he was being followed . , 7 In this light, in view of the fact that at the compound there was sufficient light at the time of the incident and that PWl had seen the appellant before at the grocery, we agree with the learned State Attorney that the tests laid down in Waziri Amani (supra) were satisfied. In Waziri, (supra) it will be recalled, this Court categorically ,. stated inter alia:- "(i) evidence of visual identification is of the weakest kind and most unreliable; (ii) no court should act on evidence of visual identification unless all possibilities of mistaken identity are eliminated and the court is fully satisfied that the evidence before it is absolutely watertight." In this case, considering the particular circumstances of the case, we are satisfied that the condition for the identification at the time of the incident were -favourable and ·that the appellant was 8 properly identified. The visual identification left no doubt as to the correct identity of the appellant. Furthermore, there is the other aspect which we desire to address briefly. That relates to the watch Seiko Five Exh. Pl. This was the watch which belonged to PWl. That within a short time after the incident, namely on 20/1/2002 a day after the incident, the appellant together with the others sold the watch to PW2 at the price of Shs. 10,000/=. The incident was witnessed by PW3, PW2 the brother of PW1 who identified the watch as the one belonging to PW1 which was robbed on 19/1/2002. Mr. Mushokorwa vehemently challenged that the watch had not been properly identified by PW1, the alleged owner. As the watch, being one of the common items which easily change hands, it was erroneous on the part of the trial magistrate and the learned judge to rely on this evidence in convicting the appellant, counsel urged. ="°~"-"··•----=-~=~-=--'=- ~-~ 9 With regard to the watch, Exh.Pl we accept Mr. Mushokorwa's submission that the specific description of the watch Exh. Pl was not given to the full satisfactory degree. However, taking cognizance of the very short time taken from the time PW1 was robbed on 19/1/2002 and 20/1/2002, when the appellant and his associates were caught red-handed selling the watch to PW2, we think, the learned judge on first appeal and the trial magistrate cannot be faulted in invoking the doctrine of recent possession. · It is to be borne in mind that Pl, PW2 and PW3 who were familiar with the watch were believed as credible witnesses by the trial magistrate and the learned judge on first appeal. This was a question of fact in which there was concurrent finding by the two courts below. As such, there is no basis for this Court at this stage on second appeal to if]terfere and decide otherwise on this ,point.~ At , any rate, the appellant in his defence did not raise what might be considered as rival claim over the watch. We find no merit in this ground which we reject. 10 Finally, we s_hall deal very briefly with the ground that the learned judge disregarded the rule of adverse inference. Mr. Mushokorwa submitted that as PWl claimed that he had seen the appellant and the other accused persons at the Madarasi Grocery, and that no witness from the Grocery was called to testify, an adverse inference should drawn against the prosecution case. He cited the case of Aziz Abdallah V Republic [1991] TLR 71 to support this proposition. As correctly submitted by Mr; Mwenda, learned State Attorney, 0 the case of Aziz Abdallah (supra) is distinctly different and does not assist the appellant's case in this regard. If the prosecution at the close of its case deemed it unnecessary to call any further witnesses in support of their case, that was the end of the matter. The prosecution could not be forced to call more witnesses. Under ~~ction 14-3 of the Evidence Act, 1_,967,.. no,.par:ticula.r:...number~,of-c-.=~-cc--.....- witnesses is required for the proof of any fact. At any rate, it was open for the appellant to apply to the court for the witnesses from the Grocery to come to testify on the alleged presence of the • I 11 appellant at the Grocery or otherwise. From the record, he did not make any indication. In the circumstances, we find no ground for Mr. Mushokorwa's resort to invoking adverse inference. In the event, for the foregoing reasons, we find no merit in this appeal. Accordingly, it is dismissed in its entirety. DATED at MBEYA this 24th day of August, 2007. D.Z. LUBUVA JUSTICE OF APPEAL H.R. NSEKELA JUSTICE OF APPEAL M.S. MBAROUK JUSTICE OF APPEAL I certify that this is a true copy of the original. ( s.- - ,: tJAANYIKA) D , «-'yy REGISTRAR /