20080604 TZHC Dodoma

~ IN THE HIGH COURT OF TANZANIA § I i \' AT DODOMA (DC) CRIMINAL APPEAL NO. 113 OF 2008 { Original Criminal- Case No~· 11-2 of 2007 of the District Court of Dodoma District at Dodoma) ATHUMAN HAMISI@ ATHUMAN ... APPELLANT VERSUS THE RASHID ........................... RES PON DENT Date of Last order: 28.4.2009 · Date of Judgment: 04.6.2009 JUDGMENT Hon G. J. K. MJEMMAS, J: The appellaht Athumani s/o Hamisi @ Athuman was charged, prosecuted and convicted of armed robbery c/s 285 ·.. and 287 A of the Penal Code, Cap 16 of the Laws as amended . ., • ·:.~· . ",1. : ~ . by Act No. 4 of 200A. The District Court of Dddor.iq: District s_entenced. him to· serve thirty years imprison~ent. The appellant was aggrieved so he preferred this appeal to this court. . The facts giving rise to the matter are not complicated. It :w.ns .. olleged by the prosecution that on 15 March, 2007 at ·ob~uf 6;Q0p.m [l 800hrsl at Jamhuri · Stadium within Dodoma .· · ·• Munidpality PWl - Godliving s/o Elituaha was attacked by thr<::e people while on his way home at Area C. The people wr1O attacked him ordered him to surrender his- mobile phone. In fhe course of the struggle two of the attackers ran away while one of them remained with the compl9inant - PW 1. The one who remained behind manage~ to take the complainant's black wallet which had Tshs. 200,000/=, four negative photos and a small notebook. PW 1 was cut around _the eye with· unknown instrument. After taking the said wallet the attacker ran away. According to PW~ some people who were passing by tried to chase the said attacker without success. PW 1 claimed to have identified one of the persons who attacked him and took his wallet as the appellant who he identified by the nickname of Chibaluti. PW 1 phoned his brother (PW4) who arrived at the scene of incident and took him with a bicycle to Police Station where t·hey reported the matter and PWl was issued with a PF.3 for treatment. The appellant has filed a five point petition of appeal in which he is mainly complaini_ng_ about his identification ·• At the hearing of the appeal he appeared 1n person and unrepresented. He prayed for leave of the court to add one more ground of appeal, a prayer which was not objected to 2 ?'··--- / i I ·. by _H10 respondent - the Republic and which granted. I Otl'~~rwlse he did not have anything to add· to elaborate his· / appeal... , -The respondent - The Republic was represented by Mr. KirumbL learned State Attorney. The learned State Attorney · supporJed the conviction and sentence imposed to the ·. · ·. appellant. Mr. Kirumbi stated that the evidence which was adduced against the appellant is watertight. He elaborated · •·• -._·. his point by saying that the incident took place at around 6.00 p.m and it was not yet dark and the complainant knew the appellant ·before as -Chibaluti. That after the incident PW l saw the appellant and informed PW 4 who attempted to arrest the appellant but he ran away. Mr. Kirumbi stated further that there is evidence of PW2 who happened to be passing at the scene of incident and saw people who were fighting and he ., recognized the appellant who was running away with d black wallet. Mr. Kirumbi concluded his submission by stating that the evidence of PWl and PW2 shows' that the appellant was properly identified and there was no possibility of mistaken identity. As stated before in this judgment, the main complaint by the appellant as reflected. in. _.,.. his petition. : ~ : of appeal is about his identification as the person. who attacked the complainant and . robbed him of his wallet on 15.3.2007. Mr. Kirumbi, learned ,•·· . 3 . State Attorriey, who appeared. for_ the respondent - the · Republic addressed that issue of identifis:ation of the appellant and he was satisfied that the appellant was positively identified by the complainant and PW2. The trial Magistrate also addressed the issue of identification of the appellant and he came to the conclusion that the appellant was properly identified by PWl and PW2 and that the incident occurred at 1800hrs not during the night. I have seriously considered the evidence adduced 1n relation to the identification of the appellant and the circumstances under which such identification took place and I a-m of the following opinion. First, there is no dispute that the incident took place although the appellant is disputing that in his additional ground of appeal. There is evidence of PW 1 - the victim himself that he was attacked and injured. There is evidence of PW2 and PW3 who claimed to have witnessed the ' fight between PWl and three other people. There is also evidence of PW4 who took PWl (victim) to _Police statio~ and hospital and there is a PF3 which was admitted as exhibt ~El. Second, there is no dispute that the incident took plo·ce at around 6.00 p.m [l 800hrs] and it was not yet dark as stated by PW 1 and also as it was observed by the trial Magistrate in his judgment. 4 Th_ird, the incident took place within the Municipality of Dodoma at Jamhuri Stadium between Jdmhuri Secondary School and Uhuru Primary Scnool. ·. From the above circumstances the conditions of identification were not unfavourable. The issue which arises is whether the witnesses knew or had seen the appellant before ·the incident and whether th~y actually _saw and identified him at the scene of incident From the record of the proceedings, PW l - who was the complainant claimed that he knew the appellant and he used to s~e him for more than two years. According to PW l, . he also knew the appellant by his nickname of Chibaluti though he .was informed by the people at the scene of incident th~t the real name of the appellant is Athumani. PWl · also _stated that he remained · with the appellant after his colleagues had run away. That means he had at least some time to observe the appellant. He said, I quote him: " There were three people who attacked me 'two of them ran away when I yawl~d since the accused hand was. still on the pocket I remained with him when I was about to overcome him he prCJduced an instrument and cut me". [See page 7 of the proceedings]. The evidence of PW 1 was corroborate by the evidence of PW2 who testified that on the material day and time i.e 15.3.2007 at 18hrs, he was passing through Jamhuri Stadium 5 and that he saw• four people who were fighting. When he approoched them, t-wo of them ran away to Bahi road and the .· . appellant passed near him running while carrying a wallet.· He . said that at that· time the complainant was "yawling" and . complaining that he had been attacked by the appellant who cut him and took his wallet. PW2 stated that he knew the appellant for a long time. He said he used to see him for more than a year. At least, that is the evidence of two witnesses who claimed to have identified the appellant at the scene of incident. There is evidence of PW3 but he did not come out clearly as to whether he knew or identified the appellant. In the upshot I am of the view that the two witnesses i.e PWl and PW2 were credible witnesses and they properly identified the appellant who they knew before and the circumstances of identification were not unfavourable .so there was no room for mistaken identify. There is, however, one thing I want to observe or .,. comment about. The appellant was charged with armed robbery and in the charge sheet it was stated that he used a razorblade to cut the complainant. However, in his evidence the complainant (PWl) did not say or .. identify the instrument which was used to cut or injure· him.· The PF3 which was tendered in evidence as exhibit showed that the complainant (PWl) was cut with a ·sharp ·instrument. The person who filled it, admittedly did not follow the instructions contained therein. In 6 otherwords, instead of filling each column as shown, he made general remarks. The point I am trying to raise is whether there was enough evidence to show that the appellant was armed <J with a dangerous or offensive weapon or instrument in order to constitute the offence of ormed robbery. It is my humble -opiriion that the available evidence does not show beyond reasonable doubt that the appellant was armed with a .dangerous or offensive weapon or instrument. There is, however, evidence to show that the appellant was in the company of two other people who ran away and that he used violence against the complainant· (PW l). That shows the offence of armed robbery was committed by .the appellant. This appeal therefore, fails and it is hereby dismissed. Order accordingly. G:---------,,._ ....;:'°-~~.----,,;::::,--,~ G. J. . t \_ JUDG 4.6.2008 Order: Right of appeal explained (;~-,~ ___,..- G. J. K. 7