20091022 TZHC Dodoma

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA ( CORAM: MSOFFE, J. A. RUTAKANGWA, J. A. And BWANA, J. A.) CRIMINAL APPEAL NO. 84 OF 2007 1. JUMA NTANDU L_ 2. ATHUMANI MOHAMEDf ..................................................... APPELLANTS VERSUS THE REPUBLIC •••••••••••.•••••••••••••••••••.•••..••••••••••••••••••••••••••••••••••••••••• RESPONDENT ( Appeal from the decision of the High Court of Tanzania at Dodoma) (Masanche,J.) ~ated the 4 th day of December, 2006 in Criminal Appeal No. 40 of 2005 ........................... JUDGMENT OF THE COURT 20 & 22 October, 2009 MSOFFE, J.A. On 19/10/1998 at around 1.00 a.m. the complainant, PWl GODFREY MBELA, was in his shop cum house at Kikhonda village within the District of Iramba in Singida Region. While there, the door to his shop was broken open and bandits entered and lit him with two torches. The bandits ordered him to keep quiet and calm. He saw and identified the first appellant JUMA NTANDU whom he knew prior to the date of incident. The appellant and others took goods and cash Shs. 282,000/= from the shop. The bandits ordered him to give them more money. PWl told them he had no more money. The bandits agreed that PWl should be killed. The second appellant ATHUMANI MOHAMED had a knife and wanted to stab PWl with it. Before he could do so, he told the others that he had hesitated to stab PWl with a knife. The first appellant reigned in and impressed upon him that killing PWl was a small job. He accordingly took the knife from the second appellant. As the first appellant wanted to kill PWl by stabbing him with the knife, PWl jumped on him and snatched the knife from him. In the process, PWl escaped and went outside. The bandits followed him; slashed him on the face, head and ribs with a panga; and then ran away. PWl tried to chase them for about twenty paces away from the scene but he eventually collapsed and fainted. He gained consciousness two days later when he found himself admitted to a hospital. The appellants were arrested by village elders at Kikhonda village. Some of them, including the first appellant, were found with items which PWl eventually identified to be among those which were stolen from his shop on the fateful night. The first appellant confessed to the village chairman, PW3 JUMANNE KISUDA, to have committed the 2 robbery in question. He led the search party to his home where some of the complainant's stolen properties were retrieved. He also mentioned the second appellant as being among the robbers who robbed PWl on the night in issue. The appellants also made cautioned statements admitting the offence in question. So, on the basis of the above evidence the appellants were charged with, found guilty and convicted of, armed robbery contrary to sections 285 and 286 of the Penal Code by the District Court of Iramba (Moshi, PDM). Each was sentenced to the statutory thirty years term of imprisonment. Aggrieved, they made a first appeal to the High Court at Dodoma where Masanche, J. dismissed their appeal. They are still aggrieved, hence this second appeal. In their respective memoranda of appeal, the appellants have canvassed a number of points. In a nutshell, however, their main complaint is that there was no enough evidence of identification. Before us, they repeated this general assertion and urged us to rule in their favour and hold 3 •.•. 1' that the prosecution case against them was not proved beyond reasonable doubt. They accordingly invited us to allow the appeal and set them free. On the other hand, Mr. Patience Ntwina, learned Senior State Attorney, appeared and resisted the appeal on behalf of the respondent Republic. In his brief but focused submission, he contended that the appellants were adequately identified by PWl on the day and time of incident. In his view, the evidence of PWl was enough to ground the conviction. He went on to urge that without prejudice to the evidence of PWl, there were other pieces of evidence which were also enough to show that the case against the appellants was proved beyond reasonable doubt. In elaboration, he maintained that the other pieces of evidence were to be found in the first appellant's confession to PW3, the appellants' cautioned statements, and the fact that some of the stolen items were retrieved from the house of the first appellant. Without hesitation, we are of the settled view that this matter need not detain us. The evidence against the appellants was overwhelming. As correctly submitted by Mr. Ntwina, even if we were to ignore the other pieces 4 of evidence, the evidence of PWl was enough to ground the conviction in issue. There were two torches at the material time with the aid of which he duly identified the appellants. He knew the appellants before the date of incident. Indeed, he testified, and the appellants did not contradict him by way of cross - examination, that the appellants used to visit and buy merchandise from his shop. As a result of this, he knew them quite well. Again, a close took at the evidence of PWl from the time the bandits entered the shop, forced him to give them money, the attempt by the bandits to kill him, to the time he escaped and went outside; shows that the incident took a considerable long period of time that allowed PWl to identify the appellants properly. In this regard, we are, with respect, in agreement with Mr. Ntwina that even without other evidence, the testimony of PWl was enough to ground the conviction. Fortunately however, the prosecution case was further fortified by the appellants' cautioned statements (which were produced and admitted in evidence without objection), the first appellants' confession to PW3, and the fact that some of the stolen properties were retrieved from the home of PWl. The appeal has no merit. We accordingly dismiss it. 5 DATED at DODOMA this 22 nd day of October, 2009. J. H. MSOFFE JUSTICE OF APPEAL E.M.K. RUTAKANGWA JUSTICE OF APPEAL S. J. BWANA JUSTICE OF APPEAL I certify that this is a true copy of the original. (Z. A. JIRA) DEPUTY REGISTRAR 6