jamal msitiri chaijaba vs republic 2010 tzhc 231 8 february 2010

IN THE HIGH COURT OF TANZANIA AT TANGA CRIMINAL APPEAL NO. 23 OF 2009 (Originating from Cr.C.142 o f2008, LUSHOTO D.C.) JAMAL MSITIRI @ CHAIJABA..........................APPELLANT VERSUS THE REPUBLIC............................................ ..RESPONDENT Date o f last order: 14/12/2009 Date o fJudgment: 8/02/2010 JUDGMENT Mussa, J; In the District Court of Lushoto, the appellant was arraigned for armed robbery, contrary to sections 285 and 287A of the penal code, chapter 16 of the laws. The allegation on the particulars was that on the 13th August 2008, at Baga village, within Lushoto District, the appellant and several others stole cash shs.601,000/=; property of a certain Nassoro Salimu. It was further claimed that immediately before such stealing, the appellant and; whoever was with him, assaulted the said Nassoro by the use of a machete, that is, in order to obtain and retain the cash so stolen. It is common ground and; for some obscure reason, it is the appellant alone who was to face the hook of law upon a trial. He denied the accusation but; at the conclusion of the enquiry, he was convicted and sentenced to thirty years imprisonment. Additionally, the appellant was to be subjected to a corporal punishment of twelve strokes of a cane. It is noteworthy that the typed transcript of the judgment, rather, incorrectly reflects the imprisonment sentence as being three years. Nonetheless,a fleeting glance at the* hand-written original version brings into picture the actual term of thirty years. Aggrieved, the appellant seeks to impugn both the conviction and sentence upon a lengthy petition comprised of seven points of grievance. At the hearing, the appeal was vigorously resisted by Mr. Iboru, learned state attorney for the Republic. I shall have time to reflect on the rival positions but; in the meantime, let me explore the factual background. The case for the prosecution was comprised of three witnesses inclusive Nassoro who featured as No.l. Nassoro is domiciled at Baga village where he runs a shop and milling machine business. On the fateful day, around 7.30pm or so, he was at his shop premises. Whilst there, the appellant came by shop, whereat, according to the narrative, the premises were sufficiently lit by a pressure lamp. The appellant was not quite a stranger, much as, he was nephew to Nassoro. Often times, the appellant would extend a hand unloading sundries at his uncles' shop but; this time he had visited the shop, assumingly, as a customer; desirous of purchasing cigarettes. The appellant gave Nassoro a shs.5,000/= bill from which he got ten ciggies worth shs.600/= and a change of shs.4,400/= was promptly returned. Then, for quite a spell of a moment, the appellant just sat there and; if I understood Nassoro well, the two of them conversed a bit. A while later, the appellant rose to depart but; as he reached the door-step, he, kind of, signaled some persons who were outside the premises. This, the appellant did as he himself picked a machete and an iron bar, incidentally, left at the door-step. Soon after, a whole army of bandits stormed the shop premises, by the way, the appellant inclusive. With the machete in hand, the appellant then slashed his own uncle on his left arm whilst ordering him to lie down. To that, Nassoro was obligatory and; the way it appears, he was also crying in agony, obviously, in the wake of such a lethal attack on him. Just across the neighbourhood, Nassoro's son, namely, Ramadhani (PW.2), could hear his father lamenting to: Thief, thief, Jamaii usiniue. Jamali, of course, is the appellant's initial name and; according to Ramadhani, the appellant also answers to the given nickname of "Chaijaba". To resume the narrative, upon hearing his dad crying in agony; Ramadhani rushed up to the scene where he caught a glimpse at two boys as they cleared away. The appellant was still there and; much as he knew him quite well, Ramadhani enquired of him as to what was cooking. The appellant's response was, rather, hostile; threatening Ramadhani with the machete he was holding in his hands. Soon after, the appellant, seemingly, walked clear of the scene, unscathed. All the same,'$ie Nassoros did not spare implicating him to the village chair that same night. Abushehe Rashid (PW.3), a militiaman domiciled at Baga, was then detailed the function of putting the appellant under restraint. It was not quite a downhill undertaking, much as the appellant was no show at his fixed abode. To this, it was Abushehe's insinuation, that the appellant was up to a game of hide and seek out of sheer folly; knowing the magnitude of the atrocity he had just committed. But, the militiaman would not give in that easily; much as, his determination walked him again to the appellant's residence 5.00am or so and; this time he got him. As will later come into picture, around those wee small hours, the militiaman had the benefit of prior tipping from a whistle blower who informed of the appellant's return home. Now that the appellant was securely apprehended, he was, accordingly, arraigned for the accusation giving rise to this appeal. There was some further prosecution material comprised in a PF.3 whose details I need not pay the slightest of a glean. It was a prosecution desire, I should suppose, to demonstrate via the PF.3; the extent to which Nassoro sustained injuries as a result of the tragic occurrence. Unfortunately, the document was, rather, gate crashed into evidence without the appellant being opportuned to indicate whether or not he would have wished the medical officer summoned. Such is the imperative command of section 240(3) of the Criminal Procedure Act ,as reiterated in numerous decisions here and those of the court above. To my understanding, there has even been administrative efforts to drum up the requirements of the provision; yet, such had done little to assuage Che improper admittance of medical documents by presiding officers below. I only hope that there will come a day when the requirements will register to spare this drumming which has became almost an invariant in the majority of cases brought to my attention. To repeat what I have already stated, the PF.3 was improperly adduced into evidence and; for that matter, unworthy of>iny.consideration. That would mark the completion of my tour of the case for the prosecution and; now, to the appellants' defence. The appellant was extremely brief in his total denial of the accusation laid at his door. That is not to say he did not address the accusation; rather, he was focused and pertinent, his account being that he did not feature in the alleged robbery incident. The appellant said he was materially domiciled at some residence owned by his uncle, namely, Ismail Abasi (DW.2) from where he was arrested. According to his brief statement, the entire prosecution evidence was a fabrication. The appellant featured Ismail, the uncle, as his witness whom would have, supposedly, testified in support of his denial. But, from where I am standing, it was, rather, the prosecution which stood to gain from Ismail's testimony. That man confirmed the militiaman's detail about the appellant not being home when he was first sought in connection with the occurrence. And, actually, Ismail was exactly the whistle blower I have hinted upon, who happened to tip the militiaman just as the appellant arrived back home. To hear him telling of it, he related to a certain understanding there was between him and the militiaman; on account of which, Ismail relayed information to the militiaman soon after the appellant arrived back home. To say the least and; with respect, Ismail's account tended more towards lending assurance to the prosecution version than would have derived the appellant any assistance. To put it differently, the appellant's own witness drove a nail unto the coffin in which his defence was comprised. Coming now to the trial courts' verdict, on the whole of the evidence, the learned convicting Magistrate was impressed by the version as told by the prosecution witnesses. More particularly, deducing sufficient material to ground a finding to the effect that the appellant was unmistakenly identified as being the stuntman behind the heinous activity. And so; in the upshtk, a conviction was had. The petition is, as usual, verbose and; I only wish some legal assistance is extended to prison officers to refine this crucial exercise of drawing petitions. Upon a meaningful and closer focus on the document, it is, nonetheless, no more than a generalised complaint that the conviction was against the weight of the evidence. The Nassoros, he says, were unreliable as witnesses; first, on account that they are from the same family; second, in view of the fact that theirs was an identification derived of unfavourable surrounding circumstances and; third, in as much as they did not venture into a description of his attire. That being the score, the appellant urges, independent corroborative evidence was all the more needful. Mr. Iboru, for his part, argues that the evidence was overwhelmingly telling against the appellant. True; he says, the incident occurred 7.30pm or so, but; the prevailing surroundings and circumstances favoured an unmistaken identification. There was a pressure lamp and the scene was, accordingly, well lit; the appellant was well known to the complainant and; the two, in fact, conversed for a spell of a moment to afford the witness further opportunity to an unmistaken identity. What is more, learned state attorney urges, the appellant was implicated to village authorities that very same night. Addressing the foregoing contentions, for a start, I should single out the grievance about the Nassoros being drawn into the unangelic category. simply because they are members of the same family. Reading the grievance, it is popular amongst convicts; only, often times, it is raised completely from without. To venture upon a general proposition, the testimony of a witness stands or falls against the weight of the usual tests tagged to credibility and/or demeanor. Thus, there may be a case, for instance, where a witness is adjudged interested on account of, say, an expectancy to reap benefits from the outcome of proceeding. But, consanguinity, as sgch, - does not necessarily qualify a witness to ..jr" • interestedness; unless, of course, there be material to the effect that the family in testimony had systematic cause for fabrication. Such a situation does not, in the slightest, arise here and; by the way, if, for a certain cause, the argument disapprovingly frowns at the appellant; it is because he is a member of that same family. If anything, that in itself goes to the credit of the Nassoros; in their having to transcend family protectionism, to courageously implicate their own kinfolk. Passing on, then, to the real issue of the moment, this appeal turns on the evidence there was as to the appellants' visual identification at the scene. This, in itself, was upon two strands; first, as told of by the senior Nassoro who, allegedly, attended the appellants' quest for ciggies; conversed with him, that is, before the appellant turned wild in a sudden twist of events. Then, second, there was the account by Ramadhani, the junior Nassoro, who was drawn into picture at the height of his fathers' lamentations. Looking at the latter strand of the evidence more closely, it seems, Ramadhani had viewed the culprit from the outside of the premises; hence, his narrative about there being moonlight, etcetera. But, he was himself carrying a torch in his hands; thus, in a position, miles away from that in which the torch is carried and wielded by the culprit to be shone into the victims' eyes. Common sense tells it that, in the latter situation, ones' vision is dazzled but; certainly, the result is the opposite if the torch is held by, rather, the victim. Quite apart, there was more to his testimony, in that, he heard his father yelling "Jamali unaniua" and; Ramadhani knew exactly who this Jamali was. Indeed, attending the scene, Ramadhani had confronted Jamaii, the appellant that is. To me, Ramadhani equally had a favourable opportunity to identify the appellant. His account is fortified by that of his father who even had better chances. To this witness, I need only adopt as mine the short but meticulous submission of the learned state attorney. And so, in the end, the appellant was implicated by ttyo; not by a single witness, who both had ample opportunities. It would have been neater if they had gone further to give a description of his attire but; perhaps, such was not enquired about and; in any event, giving a description of someone you are well versed; is not quite in the normal run of a narrative. All factors considered, this appeal fails and is, accordingly, dismissed in its ent K.M. M^SSa Tj . 5/2/2010 8/ 2/2010 Before: Mussa, J. Appellant: present in custody Respondent: Mr. Samwel, state attorney Judgment delivered in the presence of the parties. K.M. MUSSA, J. 8/2/26i O