20091102 TZCA Tabora2

I IN THE COURT OF APPEAL OF TANZANIA . ' AT TABORA (CORAM: KIMARO, J,A,. MBAROUK J.A., And MASSATI,J,A.) CRIMINAL APPEAL NO. 280 OF 2006 I I . NGASSA JOHN •■ ■ II ■■ I ■■ I ■■■ I ■■ I ■■■•■ I ■■ ••••••••••••••••••• APPELLANT I I I I I ' VERSUS I - THE REPUBLIC •••••••••••.•••••••••••••.••••••••••••••••••••••• RESPONDENT I (Appeal from the Judgment ~f the High Court of Tanzania at Tabora) (MZIRAY.J.) dated 16th day of May, 2005 .I 1nI Criminal Appeal Case No. 44 of 2003 j •••••••••••••••• JUDGMENT OF THE COURT l. • 29th October, & 3 rd November,2009 l .! MBAROUK,J,A.: I In the District Court of Nzega at Nzega, the appellant, Ngassa · I s/o John Kasega was charged with and convicted of the offence of I robbery with violence contrary to ~ections 285 and 286 of the Penal Code. He was sentenced to a term of thirty years (30) imprisonment I I ! ! ' with twelve (12) strokes of the cane. Aggrieved, he unsuccessfully appealed to the High Court, hence this appeal has been preferred. The facts as found at the trial were that, on 3.12.2001, at about 6.00 p.m., Kashindye Mlega (PWl) while guarding the generator of Resolute gold mines as a watchman, a .group of sixteen (16) people emerged from nearby bushes. The bandits were armed with pangas and stones. Suddenly, the appellant got hold of PWl and tied a shirt around his neck to prevent him from raising an alarm. The bandits then pulled off the generator while PWl resisted. He was overpowered and the bandits took it and carried it on the bicycle and left. Furthermore, PWl stated that, he identified the appellant easily, because he was his villagemate. PWl, reported the incident immediately to the Chief Security (PW2) who went with PW3 to trace the bandits. But they stopped the tracing as the night fell. The following day, PWl, PW2 and PW3 while on search, they saw the appellant again with other bandits in the process of collecting the generator from the hiding, but they fled and ran away from the village. After being hunted for a long time, one day PWl saw the appellant at Natta and reported to the police which led to his arrest. In his defence at the trial, the appellant denied to have committed the offence, and claimed that the prosecution witnesses stated lies against him. He also claimed that there were inconsistencies in the prosecution evidence. 2 In this appeal, the appellant appeared in person, and Mr. John Rwabuhanga, learned Senior State Attorney represented the respondent Republic. The appellant filed a memorandum of appeal containing the following five grounds: 1. That, the Honourable Judge erred on point of law by upholding the lower court findings without evaluating the evidence on records (sic) in its totality. 2. That, the Honourable Judge erred on point of law to isolate and deal on the evidence of identification which was very weak to establish the conviction due to lack of the i earliest description to the appellant, hence at {sic) the absence of such description the evidence adduced as a whole was valueless and hanging on shadow of doubt. 3. That, the Honourable Judge erred in law not considering the fad that the appellant (then accused) was not arrested with the stolen property, and no report made at police 3 station, and that is why the one who received pre-statement of the complaint was not brought to prove if the prosecution witness PWl dully identified the appellant at the scene at the date in question. 4. That, the Honourable Judge erred on point of law to believe that the appellant was properly identified without considering the fact that PWl failed to prove at which village the appellate reside, and also known to each other. It was Just a fabricated story framed by PWl PW2 and PWJ. 5. That, under the circumstance of this :case, the case against the appellant was weak and shaky to be convicted. At the hearing of the appeal, the appellant opted to adopt his grounds of appeal and had nothing useful to add; On his part, Mr. Rwabuhanga, supported the conviction and sentence. Submitting his reaction to the first and second grounds of appeal jointly, the learned Senior State Attorney contended that the High Court Judge sufficiently evaluated the eviden,ce on record and 4 finally reached to a conclusion that the case against the appellant was proved beyond reasonable doubt, hence upheld the lower court's findings. He submitted that the appellant was properly identified by PWl due to the fact that, the incident happened at 6.00.p.m. at the time when sun light was there. Apart from that, Mr. Rwabuhanga submitted that when the appellant got hold of PWl and tied him with a shirt around his neck, the appellant was close to PWl, hence he had the opportunity to identify him. Furthermore, the learned Senior State Attorney submitted that the record shows that the appellant was a villagemate of PWl, hence PWl had no difficulty in identifying the appellant. Not only that, he said the appellant was not a stranger to PWl because this is the second time the appellant had stolen at the gold mines. Where as the first time he was caught and escaped. Mr. Rwabuhanga, further submitted that PWl immediately went to report the theft to his boss (Chief Security - PW2) that the appellant was involved. Next day after the incident, when PWl, PW2 and PW3 went for search, they identified the appellant with other bandits intending to collect the stolen generator from the hiding, the learned Senior State Attorney submitted. Later, in December, 2002, PWl saw the appellant and reported him to the police, and enabled the appellant to be arrested. 5 Mr. Rwabuhanga added that PW2's testimony was supported by PW3, who testified that the appellant was not a stranger to him because this is the second time he saw him. Initially, he saw the appellant after being caught having stolen at the gold mine. The learned Senior State Attorney reiterated that, the High Court Judge properly evaluated the evidence and considered the identification evidence adduced at the trial court and finally reached the conclusion that the case was proved beyond reasonable doubt. We, on our part, respectfully agree with the learned Senior State Attorney on the first and second grounds of appeal. There is no doubt that, the High Court Judge sufficiently evaluated the evidence of the trial court and finally reached the correct conclusion that there was no room for a mistaken identity. In support of our view, looking at the judgment of the, High Court, the Judge stated: ''I had an opportunity to read the evidence I adduced in the lower court. The findings made by the lower court as to the identity of the appellant are supported by the evidence adduced Such evidence left no doubts whatsoever as to the correct identity of the appellant as the one who robbed PW1 on that day of the incident. PW1 specifically had 6 ample time to observe the. appellant at close range when the latter held him and tied a shirt around his neck. This closeness in my view leaves no room for mistaken identity. " The words in this quotation, clearly show how the High Court Judge took enough effort in evaluating the trial court's evidence on how the appellant was sufficiently identified. We think, the elements of visual identification explained in the case of Waziri Amani v. R. (1980) TLR 252 were all covered, hence the appellant's identification can not be faulted. As to the issue of lack of the earliest description of the appellant, we think the record is very much clear on the effort taken by PW1 who immediately reported the incident to the Chief Security (PW2). Whereas PW2 said: "••••••••• One Kashindye (PW1) reported to me about bandits who robbed him the generator of Resolute gold mines. Kashindye (PWl} said that the group of I bandits was about 16, people, armed with pangas and stones, and emerged from a nearby bush. Kashindye (PW1) said that it 7 was the accused who grabbed him and tied a shirt on his neck to prevent him from raising alarm." (Emphasis added.} We are of the considered opinion that PWl managed to report that incident to PW2 immediately and that is why the next day PWl, PW2 and PW3 managed to identify the appellant when he went with other bandits to collect the generator from the hiding place. For the reasons earlier stated herein above, we find no merit in the first and second grounds of appeal. In his reply to the third ground of appeal, Mr. Rwabuhanga submitted that even if the appellant was not arrested with the stolen property, the record clearly shows how he participated in the stealing of the generator. He said, PWl, PW2 and PW3 testified how they saw him at the scene of the crime, but he ran away. Mr. Rwabuhanga added that the appellant can not escape to be implicated to the incident, because he was sufficiently identified and fully involved in the stealing of the generator. 8 We on our part, again agree with Mr. Rwabuhanga on what he submitted against the third ground of appeal. We simply say that, even if the appellant was not found with the stolen property when he was arrested, the record clearly shows how he participated in stealing of that generator. First, he was identified by PWl when he came with a group of bandits to take the generator after overpowering him. Second, PWl, PW2 and PW3 identified the appellant with a group of bandits the next day after they stole the generator, taking it at the hiding place. Hence, we are of the considered opinion that even if the appellant was not caught with the stolen property, his involvement in stealing the generator. Shows that he aided and abetted in the commission of the offence and therefore a principal party thereto. For those reasons, this ground as well cannot be sustained. As to the fourth ground of appeal, the learned Senior State Attorney submitted that, the appellant himself said in his defence that he had no grudges with the prosecution witnesses; hence the element of fabrication of the case against him cannot arise. We are of the same view as Mr. Rwabuhanga that if the appellant himself has stated in his defence that he has no grudges against the prosecution witnesses the appellant cannot now claim that PWl, PW2 and PW3 fabricated the story in this case against him. We find the fourth ground of appeal without merit too. 9 (\ ,, As to the fifth ground, Mr. Rwabuhanga briefly submitted that, there was enough evidence adduced by the prosecution which led the trial court to find the appellant guilty. Hence he urged us to find that there was no weak or shaky evidence. On our part, we are of the considered opinion that, the evidence against the appellant was watertight and that led both two courts below to find the appellant guilty as charged. Hence the fifth ground of appeal too is without merit. After-all the analysis of the grounds of appeal, we have found no reason to disturb the two concurrent findings of the two courts below. In the event, and for the reasons stated herein above, the appeal is dismissed in its entirety. DATED at TABORA this 2nd day of November, 2009. N.P. KIMARO JUSTICE OF APPEAL M.S. MBAROUK JUSTICE OF APPEAL 10 I S.A. MASSATI JUSTICE Of APPE , L I certify that this is a true copy of the original. ll