20080527 TZHC Mtwara2

IN THE HIGH COURT OF TANZANIA ATMWANZA . APPELLATE JURISDICTION HC. CRIMINAL APPEAL NO.26 OF 2007 ( Original Cr. Case No.7 of 2003 of the District Court ofMwanza} SHABAN sjo SAID ... ;......................................... APPELLANT Versus THE REPUBLIC ............. ;.............................. RESPONDENT /JJ ot- 2-f 12/3/2008 & 3f4f2088-- JUDGMENT RWEYEMAMU, J: In Mwanza District Court (DC) Cr. Case 7/2003 the appellant Shaban s/o Said was charged tried and convicted of Armed Robbery c/s 285 & 286 of the Penal Code, as ainended. He was sentenced to serve 30 yrs imprisonment. Dissatisfied, he appealed that decision faulting it mainly on five grounds as per his Me1norandum of Appeal (MA) adopted at heating. The evidence at trial was in brief as follows: On 31/12/2002 Pw 3 was at home asleep with his wife Pw 1 . About 2.00 a.n1. at night, his house was broken into by a number of bandits, who after getting in slashed hi1n with a 1nachete on various parts of his body as per PF 3 P. Exh. 1, submitted in evidence with no objection. The 3 bandits stole a number of items then left. Thereafter, Pw and his wife Pw 1 went outside their house where their children Anitha and Sudi (Pw 2 and Pw 4) who were asleep in another house very close ... by, told them "baba tumemwona na Shaban"- 1neaning 'we also saw Shaban among the bandits'. According to the witness, Shaban the accused now appellant was employed as their mason. Thereafter, 3 Pw was taken to the police then hospital by neighbours, while his wife; other neighbours and the police went to arrest the accused. Pw 1 testified to have been told by Pw 2 - their daughter immediately they went outside their house after the attack that their (fundi) -m·ason (the appellant) was a1nong the bandits; that when they told hi1n "umetugeuka", he responded "!imesanuka." According to her when the police came they revealed the appellant's identity and she accompanied them to the appellant's house where he was arrested the same night, and that nothing was found on him. According to the witness, the appellant worked on their house for about a month earlier, including repairing the floor of their bedroom. 2 That version was supported by Pw . She testified that they 4 (meaning her and Pw ) were sleeping in different house nearby (few yards away). After they heard their parents shouting, they looked out from the sitting room and saw the appel !ant ~ho had machete. They were able to identify him because there was a tube light on, and the appellant wa,s a person they new well before - he used to build their house and knew all the house surroundings. She then asked the appellant "umetugeuka", (you have turned against 2 . I us), the appellant then told his colleagues "limesanuka" and they run away with the properties they had stolen. She went on to testify that she and her brother Pw 4 went outside thereafter, neighbours caine and they informed the1n that they had identified the appellant; they also disclosed the appellant's identity to the police who arrived soon thereafter. Pw 4 's account - regarding their identification of the appellant, the questioning put to him and immediate disclosure of his identity 2 was similar to that of Pw . According to the police investigator Pw 5, the appellant was arrested by other policen1en on the night of the incident and brought to the police station, where he interrogated him and the witnesses, after which the appellant was charged. The DC after warning itself that the only evidence against the appellant was that of visual identification, was satisfied that the said evidence left no possibility of mistaken identity and was absolutely watertight as to find conviction. The appellant thinks otherwise. He submits first that the evidence of identification was not watertight as conditions of identification were not ideal - witnesses failed to disclose the appellant's identity at the earliest opportunity, the identification was not coupled with precise description of his ..., .) features or clothing. Further that the identification evidence by Pw 1 was. hearsay, and the same could not be corroborated by that of 2 Pw and Pw3, who were members of the san1e family. Last, that his Alibi was not considered by the DC. At hearing of the appeal, the Republic through Mr. Mkemwa state attorney supported conviction. Responding to the appellant's MA, he submitted that, the appellant was clearly identified by Pw 2 and Pw4, because despite the fact that the incident occurred at night, there was light fro1n a tube light which was on, and the appellant was a familiar person who used to work for them as mason building their house. As regards immediate disclosure of the accused's identity, he sub1nitted that the evidence on record shows otherwise. The appellant's identity was disclosed immediately which was why the appellant was followed in his house and arrested the same night, as testified to by Pw 5 a Police Officer who investigated the case. He submitted further that as proof of their 2 credibility, the evidence of Pw was consistent and sin1 i Jar in all material particulars to that Pw 4 • Mr. Mkemwa went on to submit that the evidence of Pw 2 and Pw 4 was positive evidence of visual identification which did not require corroboration. Regarding. the complaint that witnesses were from the same family, he submitted that the law does not bar testimony of witnesses from the same family nor does such a fact 4 make their evidence less credible. As regards the appellant's submission that his alibi was not considered, he submitted that the same was considered but not believed because the proceedings at p.2 indicate that the accused claimed to have been at home asleep where he was arrested at 2.00 am. The issue for decision is simple namely whether the appellant was properly identified as one of the culprits at the scene of crime and therefore whether his conviction was founded. The key issue in this case is that of identification. I have carefully considered the testimonies of Pw 2 and Pw 4 and agree with the DC's conclusion and Mr. Mkemwa's submission that; conditions present at the scene of crime favoured correct identification- there was sufficient light from the tube light/security lights; the identifying witnesses were in a house few paces away thus observation was done at close range; they had ample time to observe the appellant from when their parents house was broken into until they questioned him before he run with his colleagues. As regards the appellants' submission that the identifying witnesses did not give a precise description of his features, I find the same misguided. Such a description is not necessary when the • evidence shows that the appellant was very familiar to the identifying witnesses Pw2 and Pw4 • 5 My conclusion regarding the appellant's identification is fortified by two factors: First the witness's "ability to name a suspect at the earliest opportunity (was) in all-important assurance of their reliability", as it has been held a number of times by this court and the CA. Second, the consistency and similarity of the identifying witnesses' testimony all go to show credibility of their testimonies. I also find the learned state attorney's submission regarding the evidential value of the testimony of witnesses from the same family to be a correct statement of the legal position. What matters is the credibility of such persons as witnesses, unless there are circumstances to suggest a conspiracy, of which on the evidence on record, there were none. There was no evidence to suggest that the witnesses had a score or grudge against the appellant-neither did he suggest so when cross examining them. Having so concluded, I do not find it necessary to dwell on the issue of alibi. The alibi that the appellant was· asleep in his house at the material time does not render itself to proof either way. Before concluding, I should consider the fact that trial in this case was conducted by a number of magistrates. According to the record, trial commenced on 13/2/2003 before Mtambo DM, until 2/7/2003 after evidence of all key witnesses Pw 1 to Pw4 had been recorded. Then the appellant unsuccessfully applied for the magistrate to disqualify herself. There was an inspection note by 6 the RM who opined that the trial magistrate should proceed in the matter. After several adjournments, the trial magistrate disqualified herself on 1/10/2003. On subsequent dates, the accused was absent (recorded as being at large!!) until 20/l/2004 when he appeared before Mashauri RM and prayed that the case start afresh. His prayer was denied, the court ruled that there were no reasonable reasons for the case to start afresh and that "permitting the prayer would be tantamount to deny and delay ofjustice". That RM proceeded .in the case, heard evidence of Pw5 and the defense then prepared the impugned judgment. The trial magistrate acted properly in terms of section 214 (I) of the CPA. On the facts of the case and having considered the evidence of Pw 1 to Pw4 as recorded, I am of the view that the appellant was not materially prejudiced by the change of magistrate. In the final analysis, I find the appeal to have no merit, dismiss it as regards conviction as well as the sentence of 30 years which is the statutory minimum. _-----"5'--~ R. M. RWEYEMA JUDGE 27/5/2008 7 Order: Case file and Judgment forwarded to District Registrar HC Mwanza, for delivery to the parties and execution of the order. R.M.RWEYEM JUDGE 27/5/2008 MTWARAHC 8